State v. Simpson

Citation50 N.W.2d 601,243 Iowa 65
Decision Date13 December 1951
Docket NumberNo. 47889,47889
PartiesSTATE v. SIMPSON.
CourtUnited States State Supreme Court of Iowa

Lundy, Butler & Lundy, and Donald C. Wilson, all of Eldora, for appellant.

Robert L. Larson, Atty. Gen. and Glenn L. Gray, Asst. Atty. Gen. and Lester E. Ose, Hardin County Atty., of Eldora, for appellee.

WENNERSTRUM, Justice.

The county attorney's information in the case now before us for review charged the defendant with the crime of sodomy. He entered a plea of not guilty and upon trial the jury found him guilty. a motion for new trial was overruled and thereafter he was sentenced to the penitentiary at Fort Madison for the term provided by statute. He has appealed.

The nature of the offense and the evidence presented in this case are revolting and repuslive. There would be no benefit gained by a detailed account of the facts. It is sufficient to state that the appellant was 31 years of age and married at the time of the alleged act. The complaining witness was 17 years of age at the time of the trial--at least six months after the claimed offense. He had been and was then employed as a farm laborer. In considering the evidence presented in the light most favorable to the State's viewpoint, it shows that the alleged crime was committed in appellant's automobile while it was stopped on a country road and after he had consented to take the complaining witness to a nearby town. In brief, the evidence discloses that the appellant, after some preliminary acts not necessary to here relate, and after some claimed demonstrations of force, committed what is termed in medical jurisprudence as fellatio. It is the contention of his counsel that this act did not constitute the crime of sodomy.

Our statute defines sodomy as follows: 'Whoever shall have carnal copulation in an opening of the body except sexual parts, with another human being, * * *, shall be * * * guilty of sodomy.' Section 705.1, 1950 Code, I.C.A.

The appellant makes two contentions and asserts that one of the two must be true. He first maintains that, admitting the evidence of the state to be true, the crime of sodomy was not committed in that his sexual organ was not involved in the act of which complaint is made; also it is maintained that there was no principal who has committed a crime and that one cannot aid and abet in the commission of a crime unless there is a principal who has committed the offense. It is his claim that he could not be convicted as an accessory as he could not aid and abet himself in the commission of the alleged act of sodomy.

As an alternative contention the appellant claims that if the act of sodomy was committed, the complaining witness was the principal and an accomplice and his testimony was uncorroborated. In support of this claim he asserts that inasmuch as it was the sexual organ of the younger man that was involved, he (the complaining witness) was the principal in the commission of the offense and therefore necessarily an accomplice; and also that under the facts as claimed, the appellant was, at best, an accessory and although he might be tried and convicted as a principal, yet he could not be convicted on the uncorroborated testimony of the complaining witness, and accomplice.

I. We are concerned under the facts here involved with the question whether the appellant could be held to have committed the crime charged. We think he could be. It should be kept in mind that our statute prohibits 'carnal copulation in an opening of the body except sexual parts, with another human being.' Webster's New International Dictionary (1947) defines 'copulation' as 'The act of coupling or joining, or state of being coupled or joined; union; sexual union; coition.' And 'coition' is defined as 'a coming together, conjunction, meeting.' And the same dictionary defines 'carnal' in part as 'sensual', which in turn is defined as 'gratification of the senses, or the indulgences of appetite.' It would thus appear that any gratification of the senses through the coupling or joining with the sexual organ of another 'per os' (through the mouth) could be termed 'sodomy'. It is our conclusion it was the intention of the legislature to make unlawful any unnatural copulation by means of the enactment of the statute pertaining to sodomy.

In the Ohio case of State v. Tarrant, 1948, 83 Ohio App. 199, 80 N.W.2d 509, 510, where the statute involved is similar to our statute, it is stated:

'* * * We think that the intention and purpose of the Legislature was to enact an act that would make unlawful unnatural acts of sex expression as between one human being and another and as between a human being and a beast. * * *' And it is further therein stated:

'* * * The staute in order to be given meaning, must be held to mean that there are openings of the body other than the sexual parts where there might be carnal copulation. The Courts have never hesitated to hold that when one takes the sex organs of another in his mouth, that that act constitutes the act of sodomy. * * *'

Crimes of the nature here considered are not generally defined with particularity. In State v. Cyr, 1938, 135 Me. 513, 198 A. 743, it is stated: By the [great] 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.' See Honselman v. People, 168 Ill. 172, 48 N.E. 304; Kelly v. People, 192 Ill. 119, 61 N.E. 425, 426.

We do not deem it necessary to befoul our pages with the details of the cases hereafter noted, but by reference to them it will be found that copulation 'per os' has been held to constitute the crime of sodomy. See Herring v. State, 119 Ga. 709, 46 S.E. 876; White v. State, 136 Ga. 158, 71 S.E. 135; Jones v. State, 17 Ga.App. 825, 88 S.E. 712; Comer v. State, 21 Ga.App. 306, 94 S.E. 314; State v. Guerin, 51 Mont. 250, 152 P. 747, 748; State v. Whitmarsh, 26 S.D. 426, 128 N.W. 580, 583; Ex parte Benites, 37 Nev. 145, 140 P. 436; State v. Maida, 6 Boyce, Del., 40, 96 A. 207; Glover v. State, 179 Ind. 459, 101 N.E. 629, 45 L.R.A.,N.S., 473; State v. Start, 65 Or. 178, 132 P. 512, 46 L.R.A.,N.S., 266.

The case of State v. Gage, 139 Iowa 401, 402, 116 N.W. 596, is directly in point. There the indictment charged '* * * the crime (sodomy) substantially in the language of the statute, and further stated that it was committed by using the mouth of the defendant Gage.' The demurrer to the indictment was on the ground 'that the facts alleged and set out * * * do not constitute a crime.' We affirmed the trial court's order overruling the demurrer. This case is definitely contrary to the contentions of the defendant and is controlling.

Our attention has been particularly called to the case of State v. Farris, 189 Iowa 505, 506, 178 N.W. 361, 362. The defendant in that case was charged with sodomy where the act was similar to the one with which the present defendant is charged. It was there stated: '* * * The defendant can be held, if at all, only as an accessory or an accomplice.'

We do not believe that under the facts in the instant case this is controlling. We have concluded that our statute should be construed in a broader and more inclusive manner and under the facts in this case the appellant can and should be held as a principal and not as an accessory. To the extent that the holding in State v. Farris, supra, may be at variance with our conclusions here announced, the same is overruled. We have also given consideration to the case of Sledge v. State, 142 Neb. 354, 6 N.W.2d 76. In that case where the sexual organ of the complaining witness was involved and not that of the defendant, it was the holding of the Nebraska court under a statute similar to the Iowa statute, the defendant could not be held guilty of the crime of sodomy. No authorities are cited in support of this phase of the case. However, see Kinnan v. State, 86 Neb. 234, 125 N.W. 594, 27 L.R.A.,N.S., 478; 21 Ann.Cas. 335. We have concluded that under the authorities previously cited and with a broader construction of our statute, the Nebraska authorities should not be followed.

II. Despite the fact that we have held in the prior division that the appellant could be held as a principal, yet there is a further question to consider. We are concerned in the present case whether the complaining witness consented to the act in question. A participant in a crime of the nature here considered who consents to the act is regarded as an accomplice and corroboration is required. 48 Am.Jur., Sec. 7, p. 552. However, it is our conclusion that it was for the jury to...

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10 cases
  • State v. Pilcher
    • United States
    • Iowa Supreme Court
    • 19 Mayo 1976
    ...cases have defined and brought within the statute's scope the identical act defendant was accused of committing. State v. Simpson, 243 Iowa 65, 50 N.W.2d 601 (1951); State v. Farris, 189 Iowa 505, 178 N.W. 361 The majority appropriately has cited to our rule that a statute is not so vague a......
  • State v. Brown
    • United States
    • Iowa Supreme Court
    • 6 Febrero 1962
    ...of other crimes is inadmissible is State v. Vance, 119 Iowa 685, 94 N.W. 204 (overruled on another point in State v. Simpson, 243 Iowa 65, 72, 50 N.W.2d 601, 604-605, and citations). The Vance opinion classifies five exceptions to the rule. Evidence of the Vencel transaction was receivable ......
  • State v. Langley
    • United States
    • Iowa Supreme Court
    • 17 Mayo 1978
    ...words "any opening of the body" are vague, but our decisions show that this language refers to copulation per os, State v. Simpson, 243 Iowa 65, 50 N.W.2d 601; State v. Farris, 189 Iowa 505, 178 N.W. 361, or per anus. State v. Schurman, 205 N.W.2d 732 (Iowa); State v. Kaster, 160 N.W.2d 856......
  • State v. Fetters, 55091
    • United States
    • Iowa Supreme Court
    • 15 Noviembre 1972
    ...State v. Leitzke, 206 Iowa 365, 368, 218 N.W. 936, 937; State v. Griffin, 218 Iowa 1301, 1311, 254 N.W. 841, 846; State v. Simpson, 243 Iowa 65, 50 N.W.2d 601, 604--605. State v. Vance, 119 Iowa 685, 94 N.W. 204, relied upon by defendant, has been repudiated by this court in the cited cases......
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