State v. Milne

Citation95 R.I. 315,187 A.2d 136
Decision Date28 December 1962
Docket NumberNo. 10203,10203
PartiesSTATE v. Robert MILNE. Ex.
CourtUnited States State Supreme Court of Rhode Island

J. Joseph Nugent, Atty. Gen., Edward A. Capomacchio, Sp. Counsel, for the State.

Thomas H. Rosenfield, Lloyd A. G. Rustigian, Providence, for defendant.

ROBERTS, Justice.

This is an indictment wherein it is charged that the defendant received into his room in a dwelling house in the town of Westerly a person 'for the purpose of committing an indecent act * * *.' After a trial to a jury in the superior court the defendant was found guilty. Thereafter his motion for a new trial was denied by the trial justice, who then sentenced the defendant to a term of one year. The defendant has prosecuted a bill of exceptions to this court.

It appears from the record that on April 7, 1960 defendant pleaded not guilty to the indictment and that on May 12, 1960 a justice of the superior court granted his motion for a change of venue as a consequence of which the case was transferred to Providence county for trial. Thereafter in Providence county defendant's motion for the filing of special pleas was heard and denied on May 18, 1960. On June 17, 1960 his motion to quash the indictment was heard and denied. The case went to trial in the superior court on October 18, 1960, and, after having been found guilty, defendant moved for a new trial, which motion was heard and denied on November 4, 1960. On January 4 the justice of the superior court, after denying the motion of defendant to arrest the judgment, imposed the sentence above referred to.

It is not disputed that the intendment of this indictment is to charge defendant with a violation of G.L.1956, § 11-34-5, in that he received into a room in a dwelling house a sixteen-year-old boy for the purpose of committing an indecent act. Section 11-34-5 is an omnibus enactment that makes unlawful certain conduct when designed to promote prostitution and lewdness. The statute, in substance, makes it unlawful for any person to secure or transport another 'for the purpose of prostitution, or for any other lewd or indecent act' or to loiter on any thoroughfare or in any public or private place to induce, solicit or entice another 'to commit lewdness, fornication, unlawful sexual intercourse or any other indecent act * * *.' The specific provision thereof pertinent to this indictment makes it unlawful for one person 'to receive or offer or agree to receive any person into any place, structure, house, building, room, or conveyance for the purpose of committing any such acts * * *.'

It appears from evidence adduced by the prosecution and not contradicted by defendant that on the evening of September 3, 1959 a youth, then sixteen years of age, went to the dwelling house wherein defendant resided. Entering the house he went to a bedroom where he met defendant and thereafter submitted to a sexual connection per os on the part of defendant. It further appears that the submission of the youth was entirely voluntary and that at the time the act was consummated the participants were alone in the bedroom.

The specific offense then with which this defendant is charged is receiving a person in a room for the purpose of committing an indecent act therein, the conduct made unlawful by the pertinent portion of § 11-34-5. The indecent act prerequisite to guilt set out in the indictment as a 'carnal connection per-os' describes the act of copulation per os, hereinafter referred to as fellatio. The defendant relies primarily upon his contention that fellatio is not an indecent act within the contemplation of the statute inasmuch as it was not a crime at common law and has not been made one by statute. Absent an indecent act defendant argues he cannot be guilty of the conduct proscribed in the pertinent part of § 11-34-5.

The defendant, as we understand him, does not argue that fellatio, if criminal, would not be an indecent act within the purview of § 11-34-5. His contention is that fellatio is not criminal, at least when performed in the circumstances revealed by the evidence here. Therefore, he argues that in this case the act for which he received another into the room cannot be held to constitute an indecent act within the meaning of § 11-34-5.

We cannot agree with the conclusion that defendant thus reaches, it being our opinion that under the provisions of G.L.1956, § 11-10-1, fellatio has been made criminal whatever might be the circumstances in which it is committed. The statute, in pertinent part, reads: 'Every person who shall be convicted of the abominable and detestable crime against nature, either with mankind or with any beast, shall be imprisoned * * *.'

The inquiry that this court may properly make in this case is limited to ascertaining from the terms of the statute whether the legislature intended to make fellatio criminal and, if so, whether provision was made therein for any exception under which the act would not be criminal by reason of the circumstances in which it was performed. Whether the act, when performed in private between consenting adults, should be deemed to be free of criminality and excepted from the statute is a matter exclusively for determination by the legislature. If, in enacting the pertinent statute, the legislature has not so provided, then this court will not under the guise of construing the statute read into it any such exception.

There is a substantial and persuasive line of authorities supporting the proposition that statutes which make the crime against nature unlawful are not merely declaratory of the common law, which would confine the statutory offense to the doing of such acts as would constitute sodomy at the common law. To the contrary, these authorities hold that where the crime against nature is made criminal by statute, the legislation is to be given a broad and comprehensive construction so as to include within the prohibition thereof unnatural copulation in all its forms. In other words, the generality of the prohibition of statutes of this kind is significant of a legislative intent to bring within the thrust of such legislation all unnatural acts of copulation involving either man or beast and including sodomy. State v. Cyr, 135 Me. 513, 198 A. 743. In that case, the statute being identical with ours, the court said at page 514, 198 A. at page 743: 'By the weight of recent authority apparently supported by better reasoning, sodomy as used in connection with statutes prohibiting the crime against nature is interpreted in its broad sense and held to include all acts of unnatural carnal copulation with mankind or beast.' Statutes that are almost identical with the statute here under consideration have been construed as including fellatio. State v. Griffin, 175 N.C. 767, 94 S.E. 678; Sledge v. State, 142 Neb. 350, 6 N.W.2d 76; In re Benites, 37 Nev. 145, 140 P. 436; State v. Maida, 6 Boyce 40, 29 Del. 40, 96 A. 207.

The courts which adhere to this view attach significance to the phrasing employed in these statutes, noting that they do not refer to the common-law offense of sodomy but expressly prohibit the crime against nature. These courts find this phraseology significant of the legislative intention to proscribe unnatural sexual activities beyond those which were contained in the common-law offense of sodomy. In the case of Berryman v. State, Okl.Cr., 283 P.2d 558, at page 563, the court, considering a statute almost identical with ours, said: 'We emphasize again that out [sic] statute does not mention the word sodomy, but punishes the 'abominable and detestable crime against nature' which includes not only sodomy as defined at common law but all unnatural sexual copulation.'

In considering similar statutory language the Indiana court found it significant of an intention to proscribe conduct other than what which would constitute sodomy at common law. In construing a statute almost identical with the one here under consideration, that court in Murray v. State, 236 Ind. 688, at page 693, 143 N.E.2d 290, at page 292, quotes with approval from Sanders v. State, 216 Ind. 663, 25 N.E.2d 995. In that case the court said at page 664, 25 N.E.2d at page 995: 'The statute in this state defines the crime as 'the abominable and detestable crime against nature with mankind or beast.' This court has held in common with the courts of other jurisdictions under similar statutes, that the statutory definition includes both common law sodomy and acts of a bestial character whereby degraded and perverted sexual desires are sought to be gratified contrary to nature.'

We also attach significance to the use of the phrase 'crime against nature' in the instant statute. In employing this phraseology the legislature made clear an intention to change the common law with respect to the criminality of unnatural copulation and, in so doing, made inappropriate an application of the rule of statutory construction concerning the strict construction of penal statutes. Conceding the validity of the rule of strict construction of penal statutes in appropriate cases, it is not to be invoked where its effect would be to defeat a clear legislative intent, which in the instant statute is to proscribe all forms of unnatural copulation whether or not such would have constituted sodomy at common law. State v. Foster, 22 R.I. 163, 46 A. 833, 50 L.R.A. 339.

The legislative intent to proscribe all unnatural copulation in § 11-10-1 becomes abundantly clear when the provisions of title 11 are read in their entirety. The provisions thereof which relate to sexual offenses reveal in intention to proscribe all natural copulation that takes place outside of the marriage status. In view of this intention the legislature will not be presumed to have intended to reach an absurd result by further proscribing only those unnatural copulations that would have constituted sodomy at common law...

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26 cases
  • State v. Authelet
    • United States
    • Rhode Island Supreme Court
    • April 11, 1978
    ...illegal by common understanding and practice. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); State v. Milne, 95 R.I. 315, 187 A.2d 136 (1962), appeal dismissed, 373 U.S. 542, 83 S.Ct. 1539, 10 L.Ed.2d 687 We commence our "definiteness" appraisal by directing our ......
  • State v. Santos
    • United States
    • Rhode Island Supreme Court
    • March 20, 1980
    ...had the opportunity to examine §§ 11-10-1 and 11-34-5 and has upheld each statute against a vagueness challenge. In State v. Milne, 95 R.I. 315, 187 A.2d 136 (1962), a defendant convicted of receiving a person into his room for the purpose of performing fellatio, alleged that § 11-34-5, by ......
  • State v. Levitt
    • United States
    • Rhode Island Supreme Court
    • April 1, 1977
    ...318 N.E.2d 478, 480 (1974). In applying these interpretative standards to § 11-10-1, we need go no further than State v. Milne, 95 R.I. 315, 322, 187 A.2d 136, 140 (1962), appeal dismissed, 373 U.S. 542, 83 S.Ct. 1539, 10 L.Ed.2d 687 (1963), which held that fellatio falls within the statuto......
  • Coyote v. Roberts
    • United States
    • U.S. District Court — District of Rhode Island
    • December 17, 1980
    ...regardless of the marital status of the participants. See State v. Santos, R.I., 413 A.2d 58, 64-66 (1980); State v. Milne, 95 R.I. 315, 321-24, 187 A.2d 136, 139-41 (1962), appeal dismissed for want of substantial federal question, 373 U.S. 542, 83 S.Ct. 1539, 10 L.Ed.2d 687 (1963). Crimin......
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2 books & journal articles

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