State v. Lopez

• Decision Date: 11 June 1973
• Docket Number: No. 1--173A5,1--173A5
• Citation: 296 N.E.2d 918,156 Ind.App. 379
• Parties: STATE of Indiana, Appellant, v. Elizabeth LOPEZ et al., Appellees.
• Court: Indiana Appellate Court

Page 918

296 N.E.2d 918

156 Ind.App. 379

STATE of Indiana, Appellant, v. Elizabeth LOPEZ et al., Appellees.

No. 1--173A5.

Court of Appeals of Indiana, First District.

June 11, 1973.

Rehearing Denied July 10, 1973.

Theodore L. Sendak, Atty. Gen., Robert A. Zaban, Deputy Atty. Gen., for appellant.

Philip H. Hayes, Gary Gerling, Rice & Vanstone, William E. Weikert, Evansville, for appellees.

LOWDERMILK, Judge.

This is a consolidated appeal of six criminal cases. Each case raises the same question of law.

The six named defendants were charged by indictment of the Grand Jury of Vanderburgh County, Indiana, with sodomy. Motions to quash the indictments were filed on behalf of each defendant on the grounds that the indictments did not state facts which constituted the crime of sodomy as contemplated by the Legislature in IC 35--1--89--1, Burns § 10--4221.

The court, after hearing argument on said motions to quash, ruled as follows, omitting the formal parts thereof:

'The Court finds that the acts which each of the defendants allegedly committed according to the indictment returned by the Vanderburgh County Grand Jury, to-wit:

Using their hands to rub the bodies of certain individuals in order to sexually stimulate said individuals and while so stimulating the said individuals did with their hands manipulate the protuberant penises of the individuals for the purpose of causing the same to attain sexual orgasm,

do not constitute the crime of sodomy as contemplated by the legislature in IC 35--1--89--1, Ind.Stat.Ann. Sec. 10--4221 (Burns 1956 Repl.).

IT IS THEREFORE ORDERED that the indictments against the defendants and each of them be and hereby are quashed. The Court notes that the State of Indiana objects to said ruling and refuses to plead further. The sureties are released.'

The State filed a motion to correct errors and this is an appeal from an adverse ruling on that motion.

We have no facts of the incidents except that in oral argument counsel said the defendants were working in massage parlors.

The indictments read substantially the same in each case, except that the names of the individuals involved were changed in each indictment. A sample indictment, omitting the names of the parties, would read as follows:

'The Grand Jurors for the County of Vanderburgh and State of Indiana, upon their Oaths, present and charge that (Defendant) on or about the 6th day of May A.D., 1972 at said County did then and there knowingly, unlawfully, feloniously and purposely commit the abominable and detestable crime against nature with mankind, to-wit: (Recipient), a human being, by said defendant using her hands to rub the body of the said (Recipient) in order to sexually stimulate the said (Recipient) and that while so stimulated the said (Defendant) did then with her said hands manipulate the protuberant penis of the said (Recipient) for the purpose of causing the said (Recipient) to attain a sexual orgasm. And so the Grand Jurors aforesaid, upon their oaths, aforesaid, do find and say that the said (Defendant) did then and there knowingly, unlawfully, feloniously and purposely commit the crime of sodomy in manner and form aforesaid. . . .'

The sodomy statute, Burns § 10--4221, reads as follows:

'Whoever commits the abominable and detestable crime against nature with mankind or beast; or whoever entices, allures, instigates or aids any person under the age of twenty-one (21) years to commit masturbation or self-pollution, shall be deemed guilty of sodomy, and, on conviction, shall be fined not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000), to which may be added imprisonment in The state prison not less than two (2) years nor more than fourteen (14) years.' (Our emphasis.)

The State takes the position that the indictments alleged sufficient facts to constitute a crime under the first clause of the sodmy statute, supra, and also argues that the alleged acts in question should come within the ambit of the language and acts proscribed by the sodomy statute. The State therefore concludes that the trial court committed error in finding that the acts alleged did not constitute the crime of sodomy and the motions to quash were erroneously granted.

Appellees contend that the indictments do not constitute a public offense because they did not allege that the age of the recipient of the alleged activity to be under 21 years. Appellees contend that they were charged with sodomy by masturbation, as defined in the second clause of the sodomy statute. The appellees cite the case of Combs v. Cook (1958), 238 Ind. 392, 151 N.E.2d 144, for the proposition that all parts of a statute have definite meaning and purpose and effect must be given to every word and clause in a statute, if possible. Thus, the appellees conclude since the indictments did not charge them with enticing, luring, instigating, or aiding anyone under the age of 21 years to commit masturbation that the indictments were defective and the motions to quash were properly granted.

The State, in reply, contends that the statute should not be viewed by an extremely hypertechnical approach.

Our sodomy statute has been interpreted by courts in many ways. The underlying theme of all of these decisions is that everyone knows that sodomy is and the courts will not defile their opinions by describing the acts which constitute sodomy under the statute.

The State in oral argument urged with great fervor that under the sodomy statute the trial judge should have heard evidence in the cases before determining whether the indictments stated a criminal offense against the defendants and all of which should have been done before the court ruled on the sufficiency of the indictment. The argument as made was for the purpose, as we interpret it, to let the State itself know whether the defendants could be adequately charged under the first section of the sodomy statute or could be properly charged under the second section thereof.

Article I, § 13 of the Indiana Constitution provides, in part, as follows:

' § 13. Rights of Accused--In all criminal prosecutions, the accused shall have the right to a public trial . . .; to demand the nature and cause of the accusation against him, and to have a copy thereof; . . .'

Article I, § 14 of the Indiana Constitution is as follows, to-wit:

' § 14. Former Jeopardy-Self Incrimination--No person shall be put in jeopardy twice for the same offense. No person, in any criminal prosecution, shall be compelled to testify against himself.'

Under our constitutional safeguards the defendants were each entitled in their own separate case to have a copy of the indictment furnished to her and be fully and completely informed as to the charge under which she had been arrested and which she would have to meet in the trial of the cause. She could not be compelled to testify against herself. It is axiomatic that the indictment or affidavit must be sufficient and charge a criminal offense against a defendant before the defendant may be properly brought into a court of justice for trial. We therefore hold that the State's argument is without legal foundation and merits no consideration.

The Supreme Court said, in the case of Connell v. State (1938), 215 Ind. 318, 19 N.E.2d 267:

'. . . Sodomy is a crime the meaning of which is well known, and, as many courts have stated, its nature is too disgusting to be further defined. . . .'

The court held, in the case of Sanders v. State (1940), 216 Ind. 663, 666, 25 N.E.2d 995, 996, that the statutory definition of sodomy includes both the common law sodomy and acts of a beastial nature. The court further held:

'This was a prosecution of the 'abominable and detestable crime against nature.' The statute gives no other definition of the crime, obviously out of regard to the better sentiments of decent humanity, and to leave the record undefiled by details. . . .'

Our Supreme Court, in Young v. State (1923), 194 Ind. 221, 141 N.E. 309, stated:

'The obvious purpose of the last clause of the statute was to strengthen the law prohibiting unnatural sexual practices, which were not made criminal at common law. To that end, the words 'masturbation or self-pollution' were chosen by the legislature to define the evil intended to be corrected. . . .'

The court further stated, in Young, that the defendant-appellant fell into error when he attempted to define the quoted words within the common law definition of sodomy.

At page 226, 141 N.E. at page 311 the court further said, in Young, supra:

'. . . The enticing, alluring, instigating or aiding persons to engage in the corrupt and immoral act here charged does not depend upon the common law definition of sodomy, but upon the statutory definition . . . 'the abominable and detestable crime against nature with mankind or beast.' . . .'

It must be remembered that in Indiana it is a well settled principle of law that all crimes are statutory; there are no common law crimes in this State.

A history of sodomy statutes may be found in the case of Glover v. State (1913), 179 Ind. 459, 101 N.E. 629, which extensively covers the subject, bringing it down from its English origin.

It appears to us, from Glover, that our Legislature amended the Act of 1905 for the purpose of protecting the youth of Indiana and to also make the offense a statutory one rather than partially from the common law and partially from the statutory law.

The State quotes the case of Dixon v. State (1971), Ind., 268 N.E.2d 84, 87, in support of its position that the sodomy statute has been given a very broad interpretation. The court stated in Dixon, supra, as follows:

'. . . Courts have universally pointed out that the acts sought to be prevented by this and similar statutes are of such a nature that legislatures and courts are reluctant to engage in detailed descriptions of the many acts which the human being is capable to accomplishing which are so offensive as to be...