State v. McAllister

• Citation: 67 Or. 480,136 P. 354
• Parties: STATE v. McALLISTER.
• Decision Date: 20 November 1913
• Court: Supreme Court of Oregon

136 P. 354

67 Or. 480

STATE v. McALLISTER.

Supreme Court of Oregon

November 20, 1913

In Bank. Appeal from Circuit Court, Multnomah County; J.P Kavanaugh, Judge.

E.S.J McAllister was convicted of the crime against nature, and appeals. Reversed, and new trial granted.

McBride C.J., and McNary and Eakin, JJ., dissenting.

R.J. Slater, of Portland, for appellant.

Robert F. Maguire, Deputy Dist. Atty., of Portland (Walter H. Evans, Dist. Atty., and Frank Collier, both of Portland, on the brief), for the State.

RAMSEY J.

The defendant demurred to the indictment, alleging that it does not substantially conform to the requirements of chapter 7 of title 8 of Lord's Oregon Laws, in that it does not contain such specifications of the crime attempted to be charged and the particular circumstances thereof as required by said provisions, and that the facts stated do not constitute a crime.

The charging part of the indictment is in the following words: "The said E.S.J. McAllister, on the 28th day of October, 1912, in the county of Multnomah and the state of Oregon, then and there being, did, then and there, unlawfully and feloniously commit the crime against nature in, upon, and with one Roy Kadel, he, the said Roy Kadel, then and there being a male person; said crime against nature being too well understood and too disgusting to be herein more fully set forth," etc.

Subdivision 6 of section 1448, L.O.L., requires the act charged as the crime to be clearly and distinctly set forth, in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended.

All forms of common-law pleadings in criminal actions were abolished by section 1435, L.O.L.

Section 1439, L.O.L., provides that the manner of stating the act constituting the crime, as set forth in the appendix to the Criminal Code, is sufficient in all cases where the forms there given are applicable, and said section further provides that "in other cases, forms may be used as nearly similar as the nature of the case will permit." The forms given in the appendix of the Criminal Code are very brief and use no surplus words, and, in cases where no forms are given, the pleader is authorized to follow the models given as nearly as the nature of the case will permit. No form is set forth for the crime against nature, but a form for rape is set forth on page 1011,0 L.O.L. Where the person upon whom the rape is committed is above the age of consent, the charging words are that the defendant "forcibly ravished C.D., a woman of the age of 14 years." It is not necessary to allege that the defendant "carnally knew" the person ravished. The crime against nature is much like rape as to the manner of its commission.

In the case of Com. v. Dill, 160 Mass. 536, 36 N.E. 472 [136 P. 356] --a sodomy case--the indictment charged that the defendant did "unlawfully and feloniously commit a certain unnatural and lascivious act," with a person therein named. The Massachusetts statute provided that it should not be necessary to allege a description of the crime in the indictment. Passing upon the sufficiency of the indictment, the court said: "We think the indictment good without reference to section 2 of the statute. Before the statute sodomy had long been known as a crime against nature."

In People v. Williams, 56 Cal. 647, an information for an attempt to commit the crime against nature, charged that the defendant "did willfully and unlawfully and feloniously make an assault on H.G., with intent to commit in and upon the person of H.G. the infamous crime against nature," etc. The court held it sufficient, saying: "We have examined the information in this case and consider it good. The acts constituting the offense are stated in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended; *** every person of ordinary intelligence understands what the crime against nature with a human being is."

In McClain's Criminal Laws, vol. 2, § 1154, the author says: "An indictment which charges that the defendant did unlawfully and feloniously commit a certain unnatural and lascivious act with a person named, or did feloniously, etc., commit the infamous crime against nature with, etc., is sufficient."

We hold that the indictment is sufficient, although it would be insufficient at common law. The demurrer was properly overruled.

2. On the trial, in the court below, several witnesses were permitted, over the objections of the defendant, to give evidence tending to prove that the defendant had committed, with persons other than the person named in the indictment, the crime against nature. The case of State v. Start, 132 P. 512, is a case in which the defendant was charged with the crime against nature, committed with another man. In that case the trial court had permitted to be given in evidence testimony tending to prove that the defendant had committed the crime against nature with other persons. It was held in that case, by a majority of the court, that such evidence was not admissible. In that case the opinion of the majority of the court was written by Justice Burnett, and concurred in by Justices Moore and Bean. The opinion of the majority was written by Chief Justice McBride and concurred in by Justice Eakin. Those opinions examined, with thoroughness and ability, the question as to the admissibility of evidence tending to prove that the defendant had committed the crime against nature with persons other than the one named in the indictment, and the majority of the court held that such evidence was not admissible, while the opinion of the minority came to the opposite conclusion. We do not deem it necessary to re-examine that question in this case. We hold that the rule declared in that case by a majority of the court should be followed.

In Giblin v. Jordan, 6 Cal. 418, the court says: "This case may be a hard one; but it forms no reason why the former decisions should be disregarded. The frequent instances in which courts have relaxed rules to avoid the consequences of cases like this have done more to confuse and complicate the law *** than all other cases put together. A rule once established and firmly adhered to may work apparent hardship in a few cases, but in the end will have been more beneficial than if constantly deviated from."

In Hogatt v. Bingaman, 7 How. (Miss.) 569, the court says: "It should require very controlling considerations to induce any court to break down a former decision and lay again the foundations of the law.

In his work on Bailments, Sir William Jones, commenting on the maxim "that nothing is law that is not reason" says: "This is a maxim in theory excellent, in practice dangerous; as many rules, true in the abstract, are false in the concrete. For, since the reason of Titius may, and frequently does, differ from the reasoning of Septimins, no man who is not a lawyer would ever know how to advise, unless courts were bound by authority as firmly as pagan deities were supposed to be bound by the decrees of fate."

In Grignon's Lessee v. Astor, 2 How. (U.S.) 343, 11 L.Ed. 283, the court says: "We do not deem it necessary now, or hereafter, to retrace the reasons or the authorities on which the decisions of this court in that or the other cases which preceded it rested. They are founded on the oldest and the most sacred of the principles of the common law; time has consecrated them; the courts of the states have followed, and this court has never departed from, them."

In Sydnor v. Gascoigne, 11 Tex. 455, the court says: "The rule of stare decisis, so far as it applies to decisions of our own court, should not be disregarded but on the fullest conviction that the law had been settled wrong; and, even then, we should pause and consider how far the reversal would affect transactions entered into and acted upon, under the law of this court."

In Wells on Res Adjudicata and Stare Decisis, section 596, the author says: "Hence, when once a principle has been fully recognized, it should not be changed, except it is found to be unbearably wrong, or else it is changed or abrogated by the Legislature, to whom the correction of errors ought usually to be left as to long-established principles, acted upon as a rule of property."

In State v. Clark, 9 Or. 470, the court says: "Stare decisis is the policy of the courts, and the principle upon which rests the authority of judicial decisions as precedents in subsequent litigation, and this doctrine ought not to be departed from, except when subsequent examination shows the case to have been decided contrary to principle." See, also, Multnomah County v. Sliker, 10 Or. 65; Despain v. Crow, 14 Or. 404, 12 P. 806.

We believe that the rule stated in State v. Clark, supra, is the correct one, and that a doctrine declared by a former decision of this court should not be overruled or departed from, unless the court is satisfied upon subsequent examination of the question that the former case was decided contrary to sound principle.

The case of State v. Start, supra, was thoroughly considered, and it is directly in point on this question, and a majority of the court find nothing therein contrary to sound principle, and we follow that case, holding, that all evidence received by the court tending to prove that the defendant had committed the crime against nature with persons other than Roy Kadel (the person named in the indictment) was incompetent and irrelevant, and that its admission was error.

4. The court below gave this instruction to the jury: "The court thinks that a man with normal sexual instincts is incapable of committing the crime, and that it is only a person of...