State v. Dietz

Decision Date04 August 1959
Docket NumberNo. 9953,9953
Citation135 Mont. 496,343 P.2d 539
PartiesSTATE of Montana, Plaintiff and Respondent, v. John B. DIETZ, Defendant and Appellant.
CourtMontana Supreme Court

Leo J. Kottas, Helena, argued orally for appellant.

Forrest H. Anderson Atty. Gen., Helena, Robert J. Emmons, Asst. Atty. Gen., for respondent. Robert J. Emmons, Asst. Atty. Gen., argued orally.

ANGSTMAN, Justice.

Defendant was accused of the infamous crime against nature alleged to have been committed on or about the 8th day of November 1957. The crime was alleged to have been committed by forcibly inserting his penis into the mouth of a nine year old boy.

The jury found defendant guilty of an attempt to commit the crime charged in the information.

He was sentenced to serve a term of fifteen and one-half years in the state prison at Deer Lodge. His motion for a new trial was denied and he has appealed from the judgment and from the order denying his motion for a new trial.

Here the record shows, as pointed out in the dissenting opinion written by Mr. Justice ADAIR, that the jury found defendant guilty of an attempt to commit the crime charged, whereas the judgment recites that defendant was convicted of the infamous crime against nature. This recitation in the judgment was evidently an inadvertence.

Counsel for defendant does not predicate any error on the part of the court in the respect above noted. The point was not raised in the trial court and probably for a good reason. Had it been called to the attention of the trial judge he doubtless would have corrected the judgment. It is axiomatic that the court has the power to correct its judgment so that it speaks the truth. Power & Bro., Ltd. v. Turner, 37 Mont. 521, 97 P. 950. The point is not pressed upon us for we would no doubt do what other courts have done, viz., remand the case for the correction of the judgment in this respect. People ex rel. Weed v. Whipp, 352 Ill. 525, 186 N.E. 135; LaGore v. Ramsey, Mo.1939, 126 S.W.2d 1153; McWilliams v. Walker, 209 Iowa 769, 229 N.W. 183; People v. Brown, 312 Ill. 63, 143 N.E. 440.

Defendant would then find himself in exactly the same situation in which he now is. The amount of the punishment is well within the limits of the law for one guilty of an attempt to commit the infamous crime against nature coupled with a prior conviction of which defendant pleaded guilty. The punishment for the infamous crime against nature is not less than five years. The maximum could be any number of years. The punishment for an attempt is one-half of the longest term for the offense attempted. R.C.M.1947, Sec. 94-4711. That could have been fifteen and one-half years or more without reference to the prior conviction, and where there is a prior conviction the punishment cannot be less than ten years. R.C.M.1947, Sec. 94-4713.

With these considerations in mind it is not strange that able counsel for defendant did not raise this point either in the trial court or here. In the dissenting opinion, reference is made to the case of State v. Shambo, 133 Mont. 305, 322 P.2d 657, as sustaining the contention that the judgment here cannot stand. That case does not touch upon the point here involved. The jury's verdict here was and is sustained by the evidence. By it, defendant was found guilty of an attempt to commit the infamous crime against nature. The judgment, reciting as it does that defendant was convicted of the infamous crime against nature, is erroneous. It is subject to correction by the trial court, but to do so does not require the granting of a new trial, nor is it ground for releasing and discharging defendant. Had defendant sought correction of the judgment either in the trial court or here, no doubt he would have been granted that right.

The prosecution was based upon section 94-4118, R.C.M.1947, reading:

'Every person who is guilty of the infamous crime against nature, committed with mankind or with any animal, is punishable by imprisonment in the state prison not less than five years.'

The appeal presents for consideration but one legal question, and that is, may the crime denounced by section 94-4118, supra, be committed when the act complained of is alleged to have been committed by penetration of the mouth rather than of the anus. The point was raised by several assignments of error. Counsel for defendant contends that section 94-4118 can only be violated by penetration of the anus as that was the method recognized by the common law in defining sodomy.

There are many cases supporting defendant's contention. Among them may be cited People v. Boyle, 116 Cal. 658, 48 P. 800; Prindle v. State, 31 Tex.Cr.R. 551, 21 S.W. 360, 37 Am.St.Rep. 833; State v. Johnson, 44 Utah 18, 137 P. 632; Davis v. Brown, 27 Ohio St. 326; Estes v. Carter, 10 Iowa 400; State v. McGruder, 125 Iowa 741, 101 N.W. 646; Ausman v. Veal, 10 Ind. 355, 71 Am.Dec. 331; Kinnan v. State, 86 Neb. 234, 125 N.W. 594, 27 L.R.A., N.S., 478.

It should be noted that many of the states where this rule was thus declared have since amended the statute so as to make it sodomy when there is penetration of the mouth.

There are also many cases, under statutes identical or similar to ours, which take the view that the statute is violated when there is penetration of the mouth. Among them may be cited State v. Start, 65 Or. 178, 132 P. 512, 46 L.R.A.,N.S., 266; State v. Maida, 29 Del. 40, 96 A. 207; Commonwealth v. Poindexter, 133 Ky. 720, 118 S.W. 943; State v. Altwatter, 29 Idaho 107, 157 P. 256; Ex parte Benites, 37 Nev. 145, 140 P. 436; Ephriam v. State, 82 Fla. 93, 89 So. 344; State v. Griffin, 175 N.C. 767, 94 S.E. 678; Fisher v. State, 197 Tenn. 594, 277 S.W.2d 340; State v. Davis, 223 Miss. 862, 79 So.2d 452; Ex parte De Ford, 14 Okl.Cr. 133, 168 P. 58; Territory v. Wilson, 26 Haw. 360; State v. Cyr, 135 Me. 513, 198 A. 743.

With decisions both ways on the subject, this court in State v. Guerin, 51 Mont. 250, 152 P. 747, rejected the rule contended for by defendant's counsel herein and held specifically that the crime may be committed per os. That decision settled the question in this state. It has stood for forty-three years. The rule of state decisis should control.

If the doctrine of stare decisis means anything it should apply here. Of that doctrine, Mr. Justice Adair in his dissenting opinion in Guardian Life Ins. Co. of America v. State Board of Equalization, Mont., 335 P.2d 310, 334, stated:

'Stare decisis. The Constitution of Montana and the laws enacted by the Legislature in conformity thereto will continue as the law of this jurisdiction only when the time-honored doctrine of stare decisis is observed and followed in this and the other courts of our state.

'Stare decisis is a Latin phrase. It is the principle that the decisions of this court should stand as precedents for future guidance. It means to stand by decided cases; to uphold precedents; to maintain former adjudications. In law, it means that when the highest appellate court of the jurisdiction has once laid down a principle applicable to a particular given state of facts, it will adhere to that principle and apply it to all future cases, irrespective of whether the parties and property are the same.

'Under this principle, a deliberate decision of a court, made after argument on a question of law fairly raised in the case, and necessary to its decision, is an authority of binding precedent in the same court and likewise in other courts of equal or lower rank in subsequent cases where that particular point is again in controversy.

'It is not necessary that we be concerned with how good or how bad the first pronouncement of the highest appellate court of the state might be in construing and interpreting the Constitution of our state or the enactments of our state Legislative Assembly so long as that construction holds and is adhered to until such time as the people see fit to change the Constitution and the Legislature sees fit to change the laws enacted by it under the constitutional method applicable thereto. The highest appellate court of the state should stand by its decided cases and rely upon the people and the Legislature to take care of any modifications deemed necessary to the law by reason of any decisions of the Supreme Court construing or interpreting the provisions of either the Constitution or statutes of the state.'

The majority opinion in the Guardian Life Insurance case, supra, did not take issue with the dissenting opinion so far as it defined the doctrine of stare decisis. The court divided on the question as to what was decided by the case against which Mr. Justice Adair sought to apply the doctrine.

This case is not comparable to that of State ex rel. Morgan v. State Board of Examiners, 131 Mont. 188, 309 P.2d 336, 340, quoted from in the dissenting opinion, wherein we followed the rule previously announced that 'previous decisions should not be followed to the extent that error may be perpetuated.'

In that case we expressly overruled a former one (Bryant v. Board of Examiners, 130 Mont. 512, 305 P.2d 340) which had stood for less than three months. There were several reasons for so doing, as pointed out in the opinion; none of which apply here. In the first place it was by a divided court. It was not acquiesced in for a period of time, as is true in the Guerin case, now approaching forty-four years, but only for three months. It affected important public official action, and in such cases courts are more free to reexamine legal questions.

Likewise this case differs from that of State ex rel. James v. Aronson, 132 Mont. 120, 314 P.2d 849, in that there was no acquiescence in the case of State ex rel. Mitchell v. Holmes, 128 Mont. 275, 274 P.2d 611, which was overruled by the Aronson case.

The Legislature, at the first opportunity, passed a new act omitting some of the provisions condemned by this court in the Mitchell case, and in no...

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  • People v. Lino, Docket Nos. 92352
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    • December 1, 1993
    ...See, e.g., State v. Altwatter, 29 Idaho 107, 157 P. 256 (1916); Herring v. State, 119 Ga. 709, 46 S.E. 876 (1904); State v. Dietz, 135 Mont. 496, 343 P.2d 539 (1959); State v. Fenner, 166 N.C. 247, 80 S.E. 970 (1914); Berryman v. State, 283 P.2d 558 (Okla.Crim.App., 1955); Blankenship v. St......
  • Fullmer v. Meacham
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    ...Tafarella v. Hand, 185 Kan. 613, 347 P.2d 356, 360-361, certioari denied 363 U.S. 807, 80 S.Ct. 1243, 4 L.Ed.2d 1150; State v. Dietz, 135 Mont. 496, 343 P.2d 539, 540. The word 'Burglary' contained in the written instrument of record is obviously in error, but it is a matter which is subjec......
  • Petition of Erickson
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    • December 8, 1965
    ...wherein the judgment in a criminal case erroneously described the crime of which the defendant was convicted. See State v. Dietz, 135 Mont. 496, 497, 343 P.2d 539, wherein the court 'Here the record shows, as pointed out in the dissenting opinion written by Mr. Justice ADAIR, that the jury ......

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