State v. Start

• Decision Date: 20 May 1913
• Parties: STATE v. START.
• Court: Oregon Supreme Court

132 P. 512

65 Or. 178

STATE v. START.

Supreme Court of Oregon

May 20, 1913

Appeal from Circuit Court, Multnomah County; O.U. Gantenbein, Judge.

Harry A. Start was convicted of the crime against nature, and he appeals. Reversed.

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

Wilson T. Hume, of San Francisco, Cal. (Sam M. Johnson, of Portland on the brief), for appellant.

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

BURNETT J.

According to the testimony of Rodby, the defendant performed the disgusting act upon him at the time mentioned in the indictment by taking into his mouth the penis of Rodby and sucking the same until a seminal emission ensued. The defendant contends that such an act does not constitute a violation of our statute, providing that, "if any person shall commit sodomy or the crime against nature, either with mankind or beast, such person, upon conviction thereof, shall be punished," etc. L.O.L. § 2099.

Many precedents are cited by the defendant in support of his theory. They are all traced back to and have their origin in the case of Rex v. Jacobs, Russell and Ryan's Crown Cases, p. 331. The prisoner there was convicted on evidence showing conclusively that he had accomplished the act by force in the mouth of a boy about seven years old, and the question was whether this was sodomy. All that is said in answer to the question in the report of the case follows "In Easter term, 1817, the judges met and were of opinion that this did not constitute the offense of sodomy and directed a pardon to be applied for." The authorities cited by the defendant have implicitly followed this ipse dixit of the English court without giving any reason therefor, always controlled solely by the doctrine of stare decisis, and often with protests against the authority of the rule. Although there are no common-law crimes in this state, we must turn to that law for the definition of certain crimes where the meaning thereof is not set forth in our Code. The rule at common law was that: "All unnatural carnal copulation whether with man or beast seem to come under the notion of sodomy." 1 Hawkins, Pleas of the Crown, p. 357. In the order of nature the nourishment of the human body is accomplished by the operation of the alimentary canal, beginning with the mouth and ending with the rectum. In this process food enters the first opening, the mouth, and residuum and waste are discharged through the nether opening of the rectum. The natural functions of the organs for the reproduction of the species are entirely different from those of the nutritive system. It is self-evident that the use of either opening of the alimentary canal for the purpose of sexual copulation is against the natural design of the human body. In other words, it is an offense against nature. There can be no difference in reason whether such an unnatural coition takes place in the mouth or in the fundament--at one end of the alimentary canal or the other. The moral filthiness and iniquity against which the statute is aimed is the same in both cases. Each is rightfully included in the true scope and meaning of the common-law definition quoted above from Hawkins. By far the better reasoning is found in the cases of State v. Whitmarsh, 26 S.D. 426, 128 N.W. 580, Herring v. State, 119 Ga. 709, 46 S.E. 876, and others which might be cited.

It is said in section 1539, L. O.L., that: "Proof of actual penetration into the body is sufficient to sustain an indictment for rape or for the crime against nature." No particular opening of the body into which penetration can be made is specified in this section. It follows that the actual penetration of the virile member into any orifice of the human body except the vaginal opening of a female is sufficient for the establishment of the crime in question.

The state called as a witness Earl Van Hulen, for the purpose of corroborating the testimony of the witness Rodby. Van Hulen was present at the time the alleged offense was committed with Rodby. Their testimony was to the effect that Rodby met Van Hulen on the street, and asked him to go with him to the office of the defendant to keep an engagement. Arriving there, the two were seated in company with the defendant, who locked the door and immediately began to talk to them about "queans," the significance of which Van Hulen understood. This conversation led up to the act charged in the indictment. He remained seated in the room and watched the performance of the act, testifying substantially that he stayed there because he thought it was better than to go out, and for the reason that if he opened the door and left the room he would be liable to disclose what was going on inside; that he told the defendant he thought it was very daring, and that it was bad enough for two without three in the room. The defendant requested the court to instruct the jury that the witnesses Rodby and Van Hulen were accomplices, and that a conviction could not be had upon such testimony unless corroborated by other evidence. This instruction was refused by the court, which gave instead thereof the following: "The state has offered the witness Van Hulen as a witness corroborating the testimony of the complaining witness, Fred Rodby. The defendant contends that this man Van Hulen was an accomplice, and that therefore his testimony was not admissible. The court was unable to agree with the contention of the defendant on that point, and you are now instructed as a matter of law that the witness Van Hulen was not an accomplice of the defendant, and that therefore his testimony may be considered by you as corroborating the testimony of the complaining witness, Rodby."

It is provided in sections 1458 and 2370, L. O.L., that: "All persons concerned in the commission of a crime whether it be felony or misdemeanor and whether they directly commit the act constituting the crime or aid and abet in its commission though not present, are principals and are to be tried and punished as such."

It is also said in section 1540 that: "A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime and the corroboration is not sufficient if it merely show the commission of the crime or the circumstances of the commission."

"To 'abet' is to countenance, assist, give aid. The word 'abet' includes knowledge of the wrongful purpose of the perpetrator and counsel and encouragement in the crime." 1 Words and Phrases, p. 15.

Considering the facts: That the two witnesses went together to the defendant's office to meet an engagement with one of them; that on arriving there nothing else was talked of except what resulted in the crime; that the witness Van Hulen was present without protest, and remained until the consummation of the act without making any effort to stop the commission of the felony, or to do anything to prevent or discourage it--there were circumstances from which the jury could believe, for instance, that he guarded the door to prevent detection, and so that he was at least abetting the commission of the crime, and hence was an accomplice. In State v. Wong Si Sam, 127 P. 683, the deceased was said to have been murdered in the room of his paramour, a Chinese woman, Oi Sen, who stood by, offered no resistance, and called for no help. This was deemed sufficient to take to the jury the question of whether or not she was an accomplice, and it was held by this court, in an opinion by Mr. Justice Bean, that if the jury found that she was an accomplice, she must be corroborated in compliance with the statute. Van Hulen in this case appears in a stronger light as an accomplice than did the Chinese prostitute. Under these circumstances the court had no right to assume, and so instruct the jury as a matter of law, that he was not an accomplice. The question should have been left to the jury, under proper instruction to determine, in the first place, whether Van Hulen was present aiding or abetting in the commission of the crime, and, next, that if so, he should be corroborated by other evidence within the meaning of the statute above quoted.

Over the objection and exception of the defendant, the court permitted the state to call several witnesses, who testified that they themselves, at other times, had participated with the defendant in a like action as that described in the indictment. The court in its charge to the jury stated that: "This evidence of other similar crimes will be admitted for whatever tendency it may have to show that he, the defendant, was in a state of mind that would naturally dispose him to commit the particular crime charged in the indictment with Fred Rodby." The defendant excepted to that instruction. The testimony showed that the transactions disclosed by the other witnesses were entirely disconnected from that with Rodby, and were committed at other times.

It is said in State v. O'Donnell, 36 Or. 222, 61 P. 892: "The rule that evidence of crimes other than that charged in the indictment is inadmissible is subject to a few exceptions, speaking of which Mr. Underhill, in his valuable work on Criminal Evidence (section 87), says: 'These exceptions are carefully limited and guarded by the courts, and their number should not be increased.' "

In that same case of State v. O'Donnell, Mr. Justice Moore sets down several exceptions to the general rule. He summarizes them as follows:

"(1) If several similar criminal acts are so connected by the prisoner, with respect to time and locality, that they form an inseparable transaction, and a complete account of the...