United States v. Kelly, Cr. No. 1551.

• Decision Date: 09 March 1954
• Docket Number: Cr. No. 1551.
• Citation: 119 F. Supp. 217
• Parties: UNITED STATES v. KELLY et al.
• Court: U.S. District Court — District of Columbia

119 F. Supp. 217

UNITED STATES v. KELLY et al.

Cr. No. 1551.

United States District Court, District of Columbia.

March 9, 1954.

COPYRIGHT MATERIAL OMITTED

Leo A. Rover, U. S. Atty., E. Reilly Casey, Asst. U. S. Atty., Washington, D. C., for plaintiff.

Charles E. Ford, Washington, D. C., for defendant Kelly.

Thurman L. Dodson, Washington, D. C., for defendant Washington.

LAWS, Chief Judge.

Defendants were convicted by jury of committing an unnatural and perverted practice with each other in violation of the District of Columbia Code, § 22-3502. At the conclusion of the prosecution's evidence, defendants moved for judgment of acquittal which the Court took under advisement under Rule 29(b) of the Federal Rules of Criminal Procedure, 18 U.S.C.A. After their conviction, defendants renewed their motions for judgment of acquittal and in the alternative moved for new trial.

On a motion for judgment of acquittal, the Court must determine whether upon the evidence, giving full effect to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of facts, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. Battle v. United States, 1953, 92 U.S.App.D.C. 220, 206 F.2d 440. Since a conviction or acquittal for the offense alleged in an indictment is a bar to prosecution for a lesser offense upon which defendants could have been convicted as a part or incident of the crime charged, Ex parte Nielsen, 1889, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118, the Court must consider whether the evidence justifies a verdict of guilty not only as to the crime charged, but also as to lesser offenses that may be included in the crime.

Under the statute providing for conviction for an attempt to commit any crime, D.C.Code, § 22-103, defendants may be convicted of an attempt to commit sodomy under the indictment alleging commission of the crime. Cf. State v. Fenner, 1914, 166 N.C. 247, 80 S.E. 970. Mindful of the admonition that testimony asserting sodomy must be subjected to the most careful scrutiny, Kelly v. United States, 1952, 90 U. S.App.D.C. 125, 194 F.2d 150, the Court is of opinion the evidence fully justified a verdict of attempted sodomy. No question of identity is raised. The acts of preparation, including the wearing of a rubber prophylactic, clearly evinces the criminal intent. Unlike the facts in Hammond v. United States, 1942, 75 U. S.App.D.C. 397, 127 F.2d 752, both defendants were completely unclothed, the room was dark and otherwise unoccupied, and, as evidence of carrying out the carnal purpose going beyond mere preparation and tending to accomplish the commission of the crime, there was testimony defendants were so close together, back to front, that it was impossible to observe whether the act was completed.

Although there was some conflict in the testimony of the eyewitnesses offered by the prosecution, approaching the evidence from a standpoint most favorable to the Government, and assuming the truth of the evidence adduced in support of the indictment, United States v. Robinson, D.C.D.C. 1947, 71 F.Supp. 9, upon the evidence a reasonable mind might fairly conclude guilt beyond a reasonable doubt of attempt to commit sodomy. Defendants' motion for judgment of acquittal will accordingly be denied.

In passing upon a motion for a new trial, a different test is applied than on a motion for judgment of acquittal. If the verdict is contrary to the weight of the evidence and a miscarriage of justice may have resulted, a new trial may be granted, United States v. Robinson, supra; the weight of the evidence must support the verdict as to the crime pronounced, not merely as to lesser offenses that may be included in the verdict.

It is clear the confession of defendant Washington is not alone sufficient to support the conviction, since "* * * (1) there can be no conviction of an accused person in a criminal case upon an uncorroborated extrajudicial confession; (2) such corroboration is not sufficient if it tends merely to support the confession with also embracing substantial evidence touching and tending to prove each of the main elements or constituent parts of the corpus delicti; (3) however, such corroborating evidence need not, independent of the confession, establish the corpus delicti beyond a reasonable doubt; (4) if there is substantial evidence of the corpus delicti independent of the confession, and the two, together, are convincing beyond a reasonable doubt of a defendant's guilt, that is sufficient." Ercoli v. United States, 1942, 76 U.S.App.D.C. 360, 362-363, 131 F.2d 354, 356-357; George v. United States, 1942, 75 U.S.App.D.C. 197, 125 F.2d 559; Forte v. United States, 1937, 68 App.D.C. 111, 94 F.2d 236, 127 A.L.R. 1120. The evidence independent of the confession must first be considered to determine whether the corpus delicti is established.

The gist of the offense of sodomy, and an essential element in its proof, is penetration. State v. Fenner, supra; Almendaris v. State, Tex.Cr. App.1903, 73 S.W. 1055. Under the statute, any penetration, however slight, is sufficient to complete the crime; proof of emission is not necessary. D.C.Code, § 22-3502(b).

Undoubtedly the essential elements of an offense may be proved by circumstances and inferences, George v. United States, supra, and circumstantial evidence may be sufficient in itself to prove an accused is guilty as charged, Ercoli v. United States, supra. Accordingly, it has been held in several jurisdictions that the condition, position and proximity of defendants, as testified to by eyewitnesses, afford sufficient evidence of penetration to warrant a sodomy verdict; since it is very seldom that penetration can be observed in cases involving sex offenses, it must generally be proven by facts and circumstances. Commonwealth v. Bowes, 1950, 166 Pa. Super. 625, 74 A.2d 795; Commonwealth v. Donahue, 1939, 136 Pa.Super. 306, 7 A.2d 13; State v. Crayton, 1908, 138 Iowa 502, 116 N.W. 597. Cf. Tarrant v. State, 1915, 12 Ala.App. 172, 67 So. 626; Almendaris v. State, supra.

However, if the evidence in a prosecution for this type of crime is equally susceptible of a construction that only an attempt was made as that the crime charged was completed, a conviction of the crime charged cannot stand. State v. Swane, 1944, 21 Wash.2d 772, 153 P.2d 311. As in all criminal cases, there must be substantial evidence of facts consistent with guilt and inconsistent with every reasonable hypothesis of innocence of the crime for which convicted. Hammond v. United States, supra; United States v. McCarthy, 7 Cir., 1952, 196 F.2d 616; Johnson v. United States, 8 Cir., 1952, 195 F.2d 673; Strickland v. United States, 5 Cir., 1946, 155 F.2d 167; United States v. Laffman, 3 Cir., 1945, 152 F.2d 393; Scott v. United States, 10 Cir., 1944, 145 F.2d 405, certiorari denied 323 U.S. 801, 65 S.Ct. 561, 89 L.Ed. 639; United States v. Tatcher, 3 Cir., 1942, 131 F.2d 1002. "It is still the law that there can be no conviction of crime on circumstantial evidence unless the only possible inference to be derived from it is that of guilt. There must be evidence which forecloses and makes impossible any other conclusion." Maryland & Virginia Milk Producers Ass'n v. United States, 1951, 90 U.S.App.D.C. 14, 23, 193 F.2d 907, 917.

After consideration of the evidence adduced at the trial of defendants, the Court is of opinion that since there was no evidence other than a confession which would tend...