State v. Johnson

• Decision Date: 16 December 1913
• Docket Number: 2571
• Citation: 137 P. 632,44 Utah 18
• Court: Utah Supreme Court
• Parties: STATE v. JOHNSON

137 P. 632

44 Utah 18

STATE v. JOHNSON

No. 2571

Supreme Court of Utah

December 16, 1913

APPEAL from District Court, Fifth District; Hon. Joshua Greenwood Judge.

Andrew G. Johnson was convicted of the infamous crime against nature, and he appeals.

REVERSED.

L. A Miner for appellant.

A. R Barnes, Attorney General, E. v. Higgins and G. A. Iverson, Assistant Attorneys General for the State.

McCARTY, C. J. STRAUP and FRICK, JJ., concur.

OPINION

McCARTY, C. J.

The defendant, a negro, was convicted in the district court of Beaver County, Utah, of the infamous crime against nature. He was prosecuted under Comp. Laws 1907, section 4228, which provides that "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 three years nor more than twenty years." It is alleged in the information that the defendant committed the act therein charged with his mouth. He demurred to the information on the ground that "it does not state facts sufficient to constitute a public offense," and after conviction moved the court for a new trial. One of the grounds alleged in the motion was that the verdict is "contrary to law." The acts charged in the information constitute an unlawful assault, but the court did not submit that to the jury, nor was it requested to do so. The only issue submitted to them relates to the direct acts charged. The only important question presented by the appeal and necessary to be considered is whether or not the infamous crime against nature can be committed by one male person upon another with the mouth.

The statutes of this state do not designate or mention any particular act or acts constituting the crime; therefore, in determining whether or not the acts charged constituted a crime, we, under Comp. Laws 1907, section 2488, must look to and be governed by the common-law definition. That section provides that "the common law of England, so far as it is not repugnant to, or in conflict with the Constitution of the United States, or the Constitution and laws of this State shall be the rule of decision in all of the courts of this state." (Italics ours.)

At common law "sodomy" and the term "infamous crime against nature" meant the same thing and were used interchangeably. In 4 Blackstone's Commentaries, 215, the author refers to and characterizes sodomy as the infamous crime against nature. Nor is there any distinction made as to the meaning of these terms by the more modern writers on criminal law. In 2 McClain's Criminal Law, 1153, it is said:

"This offense is sufficiently described by calling it, with Blackstone, the crime against nature, committed either with a human being or a beast."

In Wharton's Criminal Law (11 Ed.) section 753, the crime is defined as follows:

"Sodomy is the 'crime against nature' or the 'infamous crime against nature'; these phrases being used as synonymous with the word 'sodomy' in all its various branches or designations."

25 A. & E. Ency. L. (2 Ed.) 1144; Black's Law Dict. 299; Anderson's Law Dict. 958. See, also, 2 Words and Phrases, 1740, and 7 Words and Phrases, 6539.

The courts of last resort of practically all of the jurisdictions of this country in which this question has arisen, and where the statutes as in this state, fail to define the crime of sodomy other than as "the infamous crime against nature committed with mankind or any animal," or "with mankind or beast," seem to accept and apply the common-law definition in determining whether the particular acts charged in an indictment or information do or do not constitute the crime. We deem it unnecessary to cite and review all these decisions. Attention, however, is invited to 25 A. & E. Ency. L. (2d. Ed.) 1145, and the numerous cases cited in the footnotes to the text in which the crime in all of its phases is discussed.

This brings us to the question of whether or not the acts charged in the information, tested by the common-law definition of the infamous crime against nature, constitute a violation of the penal statute under consideration. In 1 Wharton's Criminal Law (11th Ed.) section 754, it is said:

"Sodomy proper is the carnal copulation of human beings in other than the natural manner; that is, 'against nature' and per anum."

This, says the author, is the common-law definition; and, while he says this definition has been much modified "under the present doctrine," it will be noticed, by pursuing his discussion of the subject, that the modification is largely, if not solely, due to the broadening of the term by legislative enactments rather than by judicial construction. In section 757 of the same volume the author says:

"Statutes have been passed in the majority of the states defining and punishing the crime of sodomy in all its branches. . . . Many of these statutes designate the offense as 'the crime against nature,' or the 'detestable and abominable crime against nature,' 'the infamous crime against nature,' and the like, including thereunder all such acts, whether with man or beast. Some of these statutes provide for the punishment without any attempt at a definition of the crime, in which case, in all states in which the common law originally prevailed or has been adopted by statute, the common-law definition of the crime will prevail."

In 3 Russell on Crimes 249, it is said:

"The offense consists in a carnal knowledge committed against the order of nature by man with man; or in the same unnatural manner with woman; or by man or woman in any manner with beast."

Again, on page 250, the author says:

"To constitute this offense, the act must be in that part where sodomy is usually committed. The act in a child's mouth does not constitute the offense."

In 2 Bishop's Criminal Law (7 Ed.) section 1191, the crime is defined as follows:

"Sodomy is a carnal copulation, by human beings, with each other against nature, or with a beast."

Again, in section 1194 of the same volume, he says:

"A penetration of the mouth is not sodomy."

In 2 McClain's Criminal Law, section 1153, the author, in defining the manner in which the crime may be committed, uses the same phraseology as that used by Mr. Russell. It clearly appears from the foregoing authorities that, under the common-law definition of the offense and where, as in this state, the definition has not been broadened or enlarged by statute, the acts charged in the information do not constitute a penal offense. Our conclusion is supported by the following cases: Commonwealth v. Poindexter, 133 Ky. 720, 118 S.W. 943; People v. Williams, 59 Cal. 397; Prindle v. State, 31 Tex. Crim. 551, 21 S.W. 360, 37 Am. St. Rep. 833; Lewis v. State, 36 Tex. Crim. 37, 35 S.W. 372, 61 Am. St. Rep. 831; Harvey v. State, 55 Tex. Crim. 199, 115 S.W. 1193; Kinnan v. State, 86 Neb. 234, 125 N.W. 594, 27 L. R. A. (N. S.) 478. The last is cited in 21 Ann. Cas. 335. We there invite attention to an extended note in which the annotator cites and reviews the leading cases on the subject both in this country and in England.

Counsel for the state rely upon the following cases: Means v. State , 125 Wis. 650, 104 N.W. 815; Honselman v. People, 168 Ill. 172, 48 N.E. 304; State v. Whitmarsh, 26 S.D. 426, 128 N.W. 580; State v. Start, 132 P. 512; Herring v. State, 119 Ga. 709, 46 S.E. 876. In Means v. State the Wisconsin court held that an act similar to the acts charged in this case was a violation of section 4591 of the statutes of that state. But that statute provides that the "crime may be committed by he penetration of the mouth," etc. Because of that dissimilarity of the statute we think the case is not applicable. The Illinois statute provides that every person "convicted of the crime of . . . sodomy or other crime against nature . . . shall be deemed," etc. In Honselman v. People that court held, and we think correctly, that, "while the crime against nature and sodomy have often been used as synonymous terms," the Criminal Code of that state, defining infamous crimes, "plainly shows that the legislature included in the crime against nature other forms of the offense than sodomy or buggery." The phrase "other crime against nature," associated as it is with the word "sodomy" by the disjunctive, is broad and comprehensive in its meaning and might well include any act of copulation that is contrary to or against the order of nature. That decision, therefore, is also not in point. The Georgia statute provides that "sodomy is the carnal knowledge and connection against the order of nature," etc. In the case of Herring v. State, supra, the Georgia court, construing the statute, said:

"It will be noted that this definition contains no limitation as to the organ with which such unnatural connection may be made."

The statute, as thus construed, and we are not prepared to say that the construction is an unreasonable one, includes acts of unnatural copulation not included in the common-law definition of sodomy or the infamous crime against nature. The Georgia case, therefore, is of no assistance to us in this case. The Oregon statute defining sodomy is much broader than ours. Section 1939 of the Criminal Code of that state provides that, "if any person shall commit sodomy or the crime against nature either with mankind...