State v. Spencer, 1742

• Decision Date: 14 September 1973
• Docket Number: No. 1742,1742
• Parties: STATE of Alaska, Appellant, v. Charles M. SPENCER et al., Appellees.
• Court: Alaska Supreme Court

Page 14

514 P.2d 14

STATE of Alaska, Appellant, v. Charles M. SPENCER et al., Appellees.

No. 1742.

Supreme Court of Alaska.

Sept. 14, 1973.

Harry L. Davis, Asst. Dist. Atty., Monroe N. Clayton, Dist. Atty., Fairbanks, John E. Havelock, Atty. Gen., Juneau, for appellant.

Eugene Belland, Thomas F. Keever, Charles E. Cole, David C. Backstrom, Asst. Public Defender, Fairbanks, Herbert D. Soll, Public Defender, Anchorage, for appellees.

Before RABINOWITZ, Chief Justice, and CONNOR, ERWIN, BOOCHEVER and FITZGERALD, Justices.

OPINION

PER CURIAM.

The state appeals the dismissal of indictment charging the four appellees with sodomy. The indictment reads as follows:

'That on or about the 6th day of February, 1972, at or near Fairbanks, in the Fourth Judicial District, State of Alaska, Charles M. Spencer, Timothy W. Johnson, Herbert L. Hawthorne and Eli L. Ghete did wilfully, unlawfully and feloniously commit the crime of sodomy by each inserting his penis into the mouth of John E. Knight by the use of force and threats and against the will of the said John E. Knight.

All of which is contrary to and in violation of Alaska Statute 11.40.120 and against the peace and dignity of the State of Alaska.'

The superior court granted Ghete's motion to dismiss the indictment on the basis that the indictment failed to state an offense, and he held the order to apply to Spencer, Johnson, and Hawthorne as well. The court stated that 'in deleting the words 'or has unnatural carnal copulation by means of the mouth' (the Legislature) intended simply, to strike this conduct from the prohibited list.' ¹

We agree with the superior court's interpretation of the Legislature's intent. Prior to its amendment in 1971, AS 11.40.120 labeled sodomy, the 'crime against nature', and 'unnatural carnal copulation by means of the mouth, or otherwise, either with a beast or human being' as criminal offenses. As amended in 1971 AS 11.40.120 retains sodomy alone as a crime. In Harris v. State, 457 P.2d 638, 649 (Alaska 1969) we said:

'Subsequent English cases make plain that the terms 'sodomy' and 'buggery' included at least anal penetration between man and man, but did not include oral copulation. Rex v. Jacobs, Russell & Ryan 331, 168 Eng.Rep. 830 (1817).' (Emphasis added.)

The state argues that the term 'sodomy' is broad enough to encompass oral copulation, and that the Legislature was only eliminating surplusage when it amended the statute in 1971. This overlooks the significance of Harris v. State, supra, in the sequence of events. In Harris we declared the 'crime against nature' portion of the statute void for vagueness and, therefore, unconstitutional. We also noted that the portion of the statute concerning oral copulation might be subject to the same constitutional infirmity. Thereafter the legislative amendment occurred.

In light of this sequence of events we can only conclude that the Legislature was purposely eliminating these previous offenses from statute prohibition, leaving the offense of sodomy as defined in the Harris opinion. ² Accordingly we affirm the superior court's ruing to the extent that it held that in charging forcible oral copulation the indictment failed to state an offense.

We note, however, that under AS 11.15.230, an unarmed individual 'who unlawfully assaults or threatens another in a menacing manner, or unlawfully strikes . . . another,' is punishable by fine of up to $500 and/or by imprisonment of up to six months. The facts, acts, and circumstances of an assault and battery are set forth in the indictment with sufficient certainty to constitute that offense and to apprise appellees of the nature of the charge against them. ³ Therefore, the misnomer of the crime as sodomy and its inaccurate designation as a violation of AS 11.40.120 do not, in our opinion, utterly vitiate the indictment. ⁴ A satisfactorily articulated charge of assault and battery having been lodged, the case must be remanded for further proceedings.

Remanded.

1 Before 1971, AS 11.40.120 read:

'A person who commits sodomy, or the crime against nature, or has unnatural carnal copulation by means of the...