State v. Fry
| Decision Date | 17 August 1932 |
| Docket Number | 23873. |
| Citation | 13 P.2d 491,169 Wash. 313 |
| Parties | STATE v. FRY. |
| Court | Washington Supreme Court |
Department 1.
Appeal from Superior Court, Pierce County; W. O. Chapman, Judge.
Leslie L. Fry was convicted of sodomy, and he appeals.
Affirmed.
W. E Gwynn, of Tacoma, for appellant.
Bertil E. Johnson and B. D. Scott, both of Tacoma, for the State.
The prosecuting attorney of Pierce county filed an information against the defendant and one J. E. McGillis, accusing them of the crime of sodomy, committed as follows 'That the said Leslie Fry in the County of Pierce, in the State of Washington, on or about the 3 day of October Nineteen Hundred and Thirty-one then and there being did then and there unlawfully and feloniously carnally know one J. E McGillis, a living male person, by the mouth, and said J. E. McGillis did then and there wilfully, unlawfully and feloniously voluntarily submit to such carnal knowledge by the said Leslie Fry. * * *'
The defendant McGillis pleaded guilty. Upon a trial the defendant Fry was found guilty by the jury sitting in the case. Thereafter defendant Fry entered a motion in arrest of judgment and also a motion for a new trial, both of which motions were denied. Judgment was entered and sentence imposed. The defendant Fry has appealed.
The information was drawn under section 2456, Rem. Comp. Stat., which, omitting inapplicable portions, reads as follows: 'Every person who shall carnally know * * * any male or female person by the anus, or with the mouth or tongue; or who shall voluntarily submit to such carnal knowledge; * * * shall be guilty of sodomy and shall be punished by imprisonment in the state penitentiary for not more than ten years.'
It will be noted that the statute reads 'with the mouth,' while the charging part of the information reads 'by the mouth.' The evidence showed that the appellant had used his mouth upon the sexual organ of his confederate. Appellant contends that the language of the statute does not make the act charged an offense, in that there is no such crime as carnally knowing a person by the mouth, but only with the mouth. He further contends that the information did not apprise him of the actual nature of the charge against him.
It is apparent, from a reading of the statute as quoted above, that where two individuals co-operate to commit any of the acts therein mentioned, both are guilty of the crime, whether the genital organ of the one or the other be advanced or received, or whether the anus or the mouth of the one or the other be used. The filthiness and proscription rests equally upon both.
We are invited by the briefs of counsel to attempt a perspicuous discrimination in the use of prepositional terms closely related in synonymy--to impale the elusive thought upon the accurate word. In short, we are asked to hinge our decision upon a finely-drawn distinction between the words 'by' and 'with.' Dictionaries, comparative grammars, and Roget's Thesaurus have been cited and offered for our consideration and guidance. We have studied them with interest, yet their assistance has not left us wholly free of doubt. However successful one might be in drawing nice distinctions in the present case, he will have done but little more than to establish a liaison between the refinements of grammar and rhetoric and the sordid crime of sodomy.
With reference to the use and construction of words in an indictment or information our Legislature has provided:
The words 'by' and 'with' have not been defined by the Legislature. They are therefore to be construed in their usual acceptation in common language.
It may be admitted, we think, that the word 'with' would have been the preferable word in the information, as indicating means or instrumentality, but though preferable, it is not exclusive; nor is the word 'by' antagonistic to it in its signification or accepted usage. Century Dictionary gives as one definition of the word 'by' the following: 'Through the use of; with the aid of, as means.' Mr. James C. Fernald, in his work on English Synonyms and Prepositions, discriminates between 'by' as indicating agency, and 'with' as indicating instrumentality. He further adds that 'by' may be applied to any object that is viewed as partaking of action or agency. Webster's New International Dictionary for 1929, p. 301, suggests the same distinction, and further says that 'whether with or by shall be used is a matter of arbitrary and (often) of unsettled usage.' As used in the information, 'by' indicates active agency and not merely instrumentality. To denote such active, and personal, agency, the word 'by' was...
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State v. Matlock
...436, 361 P.2d 938, 367 P.2d 844; State v. Swan, 25 Wash.2d 319, 171 P.2d 222; State v. Bogart, 21 Wash.2d 765, 153 P.2d 507; State v. Fry, 169 Wash. 313, 13 P.2d 491; State v. Delaney, 161 Wash. 614, 297 P. 208; State v. Bossio, 136 Wash. 232, 239 P. 553; Ferris v. Todd, 124 Wash. 643, 215 ......
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State v. Thomas, 27565.
...whereupon, over appellant's objection, it was admitted in evidence for the purpose of impeaching her credibility. In State v. Fry, 169 Wash. 313, 13 P.2d 491, 492, and a codefendant, McGillis, were accused of the crime of sodomy. McGillis plead guilty and, at the trial of Fry, was called as......
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State v. Bogart, 29356.
...it. Her denial of having had possession of it was impeached by the latter itself, since she acted in accordance with it. See State v. Fry, 169 Wash. 313, 13 P.2d 491. The did not make it inadmissible, it only made an issue of fact for the jury. The minor, when called as a witness by the sta......
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State v. Green, 39045
...witness and thus cancel the effect of this surprisingly hostile testimony. The court properly allowed the impeachment. State v. Fry, 169 Wash. 313, 13 P.2d 491 (1932). State v. Thorne, 43 Wash.2d 47, 260 P.2d 331 (1953), cited by the defendant, we think inapplicable for that case involved t......