State v. McGruder

• Citation: 125 Iowa 741,101 N.W. 646
• Parties: STATE v. MCGRUDER.
• Decision Date: 13 December 1904
• Court: Iowa Supreme Court

125 Iowa 741

101 N.W. 646

STATE

v.MCGRUDER.

Supreme Court of Iowa.

Dec. 13, 1904.

Appeal from District Court, Hancock County; J. F. Clyde, Judge.

The defendant was convicted of the crime of sodomy, and appeals. Reversed.Jno. A. Senneff, for appellant.

Charles W. Mullen, Atty. Gen., and Lawrence De Graff, Asst. Atty. Gen., for the State.

LADD, J.

The indictment accused the defendant of having committed the crime against nature, in that he had carnal copulation with a boy, naming him, “in an opening of the body other than the sexual parts.” This is, in substance, the language of our statute defining sodomy. Chapter 148, p. 107, Acts 29th Gen. Assem. Appellant insists the allegation is insufficient, in that the particular opening is not designated. We think it individualized the offense to such an extent as to have advised the accused of the particular crime charged. See State v. Porter, 105 Iowa, 677, 75 N. W. 519. The rule with respect to the description of offenses exacted at the common law was greatly relaxed in cases like this, where a sense of common decency was held to excuse the prosecutor from setting out the details. To charge generally the commission of the abominable crime against nature or of sodomy, merely naming it, with a designated person, was sufficient, for what was meant is said to have been “too well understood and too disgusting to be defined farther than by merely naming it.” Davis v. State, 3 Har. & J. (Md.) 154; 20 Ency. P. & P. 275; State v. Williams, 34 La. Ann. 87. See, contra, State v. Campbell, 29 Tex. 44, 94 Am. Dec. 251. Sir William Blackstone, after referring to the necessity of full proof, adds: “I will not act so disagreeable part to my readers as well as myself as to dwell longer upon a subject, the very mention of which is a disgrace to human nature. It will be more eligible to imitate in this respect the delicacy of our English law, which treats it, in its very indictments, as a crime not fit to be named.” Volume 4, p. 215. The definition of the statute is broader than that of sodomy as understood at common law. Prindle v. State, 31 Tex. Cr. R. 551, 21 S. W. 360, 37 Am. St. Rep. 833. But it is quite as detestable and no less a disgrace to human nature, and precisely the same reasons for not entering into detail, in describing it, still exist. The indictment informed the defendant that he was accused of a crime against the order of nature, and named the person with whom he was charged with having committed it. This was enough to enable him to prepare his defense, and the judgment when entered may be pleaded in bar to another prosecution. In Commonwealth v. Dill, 160 Mass. 536, 36 N. E. 472, the court held that to allege that the accused “did unlawfully and feloniously commit a certain unnatural and lascivious act” with a named person, in following language of the statute, was sufficient, even though any mode of unnatural copulation, not coming within the definition of sodomy as usually defined, was intended by the Legislature. In Honselman v. People, 168 Ill. 172, 48 N. E. 304, the statute, denouncing a penalty against “every person convicted of sodomy or other crime against nature,” was held to include any act which might be condemned under the statute of this state, and an indictment charging that defendant had committed “the infamous crime against nature upon and with Lloyd Kesler, a man then and there being,” was upheld as against precisely the same criticism urged in the instant case. In the course of the opinion the court said: “The statute gives no definition of the crime, which the law, with due regard to the sentiments of humanity, has always treated as one not fit to be named. It was never the practice to describe the particular manner or details of the commission of the act, but the offense was treated in the indictment as the abominable crime not fit to be named among Christians. The existence of such an offense is a disgrace to human nature. The Legislature has not seen fit to define it further than by the general term, and the records of the courts need not be defiled with the details of the different acts which may go to constitute it. A statement of the offense in the language of the statute, or so plainly that its nature may be easily understood by the jury, is all that is required.” These views were subsequently approved by the same court in Kelly v. People, 192 Ill. 119, 61 N. E. 425, 85 Am. St. Rep. 323. There is no reason for thinking courts of the present day less sensitive than their Anglo-Saxon predecessors. The same grounds still exist for excluding the details of the detestable crime, in so far as possible, from the public records, and we think that it is described with sufficient definiteness to answer every purpose when charged in the language of the statute.

2. Complaint is made that the court did not define with sufficient particularity the “carnal copulation” essential to constitute the crime. The jury was told, in substance, that there must have been some penetration, but of no particular distance, and also that emissio seminis was essential. In the absence of the evidence on the subject in the abstract, it cannot be said this was not sufficiently specific, and certainly the defendant has no cause of complaint. The authorities are in conflict as to whether proof of emissio seminis is essential in a case like this. A review of the early English cases by Mr. East will be found in 1 East, P. C. 437, where it is noted that Lord Coke stated in the Institutes that “there must be penetration--that is, res in re--but the least penetration maketh it carnal knowledge. Emissio seminis makes it not sodomy, but is an evidence in the case of penetration.” But in his Reports Coke seems to have expressed a different view (12 Rep. 37), though Lord Hale was of the opinion that there was a mistake therein, and that the statement in the Institutes expressed Coke's real opinion. In Duffin's Case (decided in 1722) the judges, by a vote of six to five, held emission an essential ingredient of sodomy, the five basing their conclusion largely upon the difficulty of such proof, and mentioned that no notice of the point was taken in Safford's Case, 12 Co. 37, which was a posthumous work, and differed from Institutes, 58. The trial of Ruffen for rape occurred in 1777, and the judges present unanimously approved an instruction that if there was any penetration, regardless of the other matters, he should be convicted. Mr. East observes that “at this period the weight of authorities was supposed to be much against the necessity of the two proofs” (both penetration and emissio), and thus the law stood at the time of the separation of this country from England. In Hill's Case, decided in 1781, under the direction of Buller, J., the jury found that there was penetration but no emission, and a majority of the seven to three of the judges adjudged him not guilty, Lord Mansfield expressing no opinion. The decision seems to have been put on the ground that to constitute carnal knowledge the act must be consummated. In volume 2, Bishop's New Criminal Law, § 1127 et seq., that author seems inclined to the contrary view, and also observes that, “though writers generally assume that rape and sodomy stand on common ground, reflection may suggest differences.” In his notes to Smith v. State (Ohio) 80 Am. Dec. 355, Mr. Freeman, after referring to Mr. East's statement quoted above, says that “in this country this should settle the question and establish that emission is not necessary, and that penetration is sufficient, and this is now the current of authority.” An examination of the decisions confirms this view. Penn. v. Sullivan, 1 Add. (Pa.) 143; Com. v. Thomas, 1 Va. Cas. 307;State v. Shields, 45 Conn. 256;Comstock v. State, 14 Neb. 205, 15 N. W. 355; Com. v. Hussey (Mass.) 32 N. E. 362, 34 Am. St. Rep. 270; Osgood v. State, 64 Wis. 472, 25 N. W. 529;Rodgers v. State, 30 Tex. App. 510, 17 S. W. 1077. Contra, see State v. Gray, 53 N. C. 170;Williams v. State, 14 Ohio, 226, 45 Am. Dec. 536. The unsoundness of the contrary opinion is emphasized by the enactment of statutes both in England and in many of the states, including this, eliminating the necessity of such proof in cases of rape. There is even less ground for exacting it in establishing the crime against nature, for “the enormity of the offense,” as was observed in State v. Vicknair, 52 La. Ann. 1921, 28 South. 273, “consists solely in its utter bestiality.” In that case the manner of the offense was as in this, and the court held that emissio seminis was not an essential element of the crime. The same conclusion was reached in White v. Com. (Ky.) 73 S. W. 1120. See 1 McClain's Crim. Law, 450. See, contra, People v. Hodgkin...