State v. Massey, 5698

• Decision Date: 29 January 1954
• Docket Number: No. 5698,5698
• Citation: 266 P.2d 359,1954 NMSC 18,58 N.M. 115
• Parties: STATE v. MASSEY.
• Court: New Mexico Supreme Court

Page 359

266 P.2d 359

58 N.M. 115

STATE v. MASSEY.

No. 5698.

Supreme Court of New Mexico.

Jan. 29, 1954.

N. Randolph Reese, Hobbs, for appellant.

Richard H. Robinson, Atty. Gen., Walter R. Kegel and Fred M. Standley, Asst. Atty. Gen., for appellee.

FEDERICI, District Judge.

The decisive question in the cause at bar is whether emission is a necessary element of the crime of sodomy in this jurisdiction.

We have no statute defining the crime of sodomy. Our statute, Sec. 41-704, N.M.S.tatutes 1941 Annotated, providing a penalty only, reads:

'Every person convicted of the abominable crime of sodomy, committed either with human being or any animal, on conviction thereof, shall be imprisoned for not less than one (1) year, or fined in any sum not less than one thousand dollars ($1,000), or by both.'

This Court in Bennett v. Abram, 57 N.M. 28, 253 P.2d 316, in holding that sexual copulation per os (felatio)does not constitute the crime of sodomy within the meaning of the aforequoted statute, held that since we have no statutory definition of the term 'sodomy' we must look to the common law for its meaning, and this court in said decision defined sodomy as either the the sexual copulation, per anum, of a man with another man or with a woman; or the copulation of a man or a woman with a brute animal.

The case at bar involves an accusation by information under the foregoing statute charging unlawful unnatural sexual intercourse with an animal, to wit: a dog.

The trial court refused to instruct the jury that emission was a necessary element of the crime of sodomy, and the defendant tendered a proper instruction requesting the submission of emission as a necessary element, which was refused by the court, and thus the claim of an alleged error in the instructions was properly preserved and is now before this court for decision.

It now becomes necessary to attempt to ascertain what the common law of England was in 1776, for it has been held by this court in the case of Territory v. Maxwell, 2 N.M. 250, and Browning v. Estate of Browning, 3 N.M. 659, 9 P. 677, that in order to so determine we must look to the common law, the unwritten or common law of England, and the Acts of Parliament of a general nature, not local to Great Britain, which had been passed and which were in force at the date of the War of the Revolution, and that are not in conflict with the Constitution or the laws of the United States, nor of this State or former Territory, and which were suitable to the wants and conditions of the people.

Our query therefore is whether emission was a necessary element of the crime of sodomy at common law in the year 1776.

A review of the old English authorities convincingly establishes the fact that between the years 1781 and 1829 the law in England was that emission was a necessary element of sodomy, and for that matter also of rape or carnal knowledge generally. In 1781 in Hill's case, 1 East P.C. 439 (Eng.) it was held by a divided opinion of the English Judges participating that both penetration and emission were necessary elements, and the law thus prevailed until 1829 when by statute (9 Geo. 4, Ch. 31) Parliament decreed that penetration alone was sufficient to complete the crime, the language of the statute reading:

'It shall not be necessary, in any of these cases, to prove the actual emission of seed, in order to constitute a carnal knowledge, but that the carnal knowledge shall be deemed complete upon proof of penetration only.'

So much for the law between 1781 and 1829, and since 1829.

What the common law was in England prior to 1781, and particularly at the date of the War of the American Revolution, raises a vexatious problem which troubled not only the English courts and law writers but also has caused onfusion and lack of uniformity of holdings in American state courts.

The most impressive statement we have found on the subject is by the writer in 1 East P.C. 436 (Eng.) who should have known what he was writing about, when in referring to the period of 1770, he stated unequivocally as follows:

'At this period the weight of authority was supposed to be much against the necessity of the two proofs, and that this was not changed until Hill's case in 1781.'

Hill's case is of course the case hereinabove first cited, and the two proofs spoken of by the writer in the above quotation were penetration and emission.

We could in this opinion probably stop at this point by merely concurring in the above quoted statement, but in view of the recent holding of this court in Bennett v. Abram, supra, and the failure of the last legislature to give the crime of sodomy the possible statutory definition suggested by this court in the Bennett opinion, and in view of the fact that this is a case of first impression in this court so far as deciding whether or not emission is a necessary element of sodomy is concerned it may not be amiss to refer to some of the authorities.

In the case of State v. Gray, 8 Jones Law 170, 53 N.C. 170, a case involving carnal knowledge of a female child under ten years of age, the Court in holding emission to be a necessary element of carnal knowledge says:

'In England the contrariety of opinion, as to the law on this subject, among her greatest writers and Judges, is remarkable. Lord Coke, in his 3 Inst. 59-60 says that penetration only is necessary to consummate the offense, while in his 12 Rep. 37, proof of both penetration and emission was held indispensable for conviction of the offenders. Lord Hale seems likewise to to have entertained different opinions at different times; see 1 Hawk.P.C. Chap. 4, Sec. 2; Chap. 41, Sec. 1 and 1 Hale, P.C. 628. In 1721 a case was brought before eleven judges upon a special verdict, when six of them thought both penetration and emission necessary, while the other five deemed penetration only, to be sufficient. The Judges being divided, it was proposed to discharge the special verdict and indict the prisoner for a misdemeanor; see 1 East P.Cr. 437. After that time, for about 60 years the weight of judicial authority seemed to be in favor of requiring proof of penetration only. But in 1781, a case occurred before Buller, Judge, in which the jury found there was penetration, but no emission, whereupon the learned Judge respited the prisoner until he could obtain the opinion of the other Judges. Two of them, towit, Lord Loughborough and Heath, J. held with him, that the offense was complete, but eight others, including Lord Ch. B. Skynner and Lord Mansfield, were of a contrary opinion, upon the ground the carnal knowledge must include both penetration and emission. They held, however, that the latter might be inferred from the former unless the contrary appear probable from the circumstances. * * * The opinion of the majority of the Judges in this case prevailed, without must question, until the year 1829, when by statute of 9th Geo. 4, Chap. 31, it was declared (after recital that many offenders had escaped on account of the difficulty of the proof in such crimes) that 'it shall not be necessary, in any of those cases, to prove the actual emission of seed, in order to constitute a carnal knowledge, but that the carnal knowledge shall be deemed complete upon the proof of penetration only."

In People v. Hodgkin, 94 Mich. 27, 53 N.W. 794, 795, the defendant was convicted of sodomy upon the court's instruction that proof of penetration alone was sufficient. Their statute, like ours, does not define in terms what constitutes the offense. The court held that emission was a necessary element of the crime of sodomy, and in discussing the difference of opinions, states:

'In England the question was not fully settled until 1781, when it was held that proof of emission was necessary to the consummation of the offense. Hill's Case, 1 East, P.C. 439. See Stafford's Case, 12 Coke, 37. The American cases are not uniform. The following cases support the claim of the prosecution that proof of penetration only is necessary. (Citing Virginia, Nebraska and Pennsylvania cases.) In North Carolina and Ohio the doctrine that emission is necessary obtains. State v. Gray, 8 Jones [Law] (N.C.), 170; Williams v. State, 14 Ohio 222. The question had never been decided by the supreme court of this state. But the legislature in 1841 enacted a statute, the second section of which reads: 'Whereas, upon the trials for the crimes of buggery and rape, * * * offenders may escape by reason of the difficulty of the proof which has been required of the completion of those several crimes, for a remedy thereof, be it enacted, that it shall not be necessary, in any of these cases, to prove the actual emission of seed, in order to constitute a carnal knowledge, * * *."

The court then points out that this statute has been repealed and the common law revived and states:

'But it will be observed that the act of 1841 was a clear legislative recognition of the common-law rule as laid down by the Ohio and North Carolina courts, and we think that the repeal of this statute evinces a purpose to revive the common-law rule as it was then understood to obtain in this state, and should be given force in determining what the common-law rule in this state then was, prior to the enactment of that statute. We think, therefore, that proof of emission was a necessary ingredient to the offense, and, while it may be inferred from proof of penetration, and the other circumstances of the case, yet it is a fact which the prosecution must make out before a conviction can be claimed, * * *.'

In People v. Smith, 258 Ill. 502, 101 N.E. 957, 958, the defendant was charged with committing the crime against nature and evidence disclosed he had inserted his tongue in the private parts of an eleven year old girl. In holding that such conduct did not constitute the crime against nature, the court says 'Sodomy was not proved, but we have held that the crime against nature, as that expression is used in our ...