Estes v. State, No. 30331

Docket NºNo. 30331
Citation244 Ind. 691, 195 N.E.2d 471
Case DateJanuary 23, 1964
CourtSupreme Court of Indiana

Page 471

195 N.E.2d 471
244 Ind. 691
Alonzo Edward ESTES, Appellant,
v.
The STATE of Indiana, Appellee.
No. 30331.
Supreme Court of Indiana.
Jan. 23, 1964.

[244 Ind. 692]

Page 472

John G. Bunner, Evansville, for appellant.

Edwin K. Steers, Atty. Gen., State of Indiana, Frederick J. Graf, Deputy Atty. Gen., Indianapolis, for appellee.

ACHOR, Judge.

This is an appeal from a judgment of the Vanderburgh Circuit Court convicting the appellant of the crime of sodomy.

As cause for reversal, appellant relies upon the following two contention: (1) That the affidavit is so vague, uncertain and indefinite, appellant could not know definitely from a reading of the affidavit what he had to meet and the trial curt could not know the crime intended to be charged and, because of this indefiniteness, appellant would not be protected from the subsequent[244 Ind. 693] prosecution based upon the same facts, and (2) that the finding of the court was not sustained by sufficient evidence.

The first issue was raised by motion to quash, which motion was overruled. The pertinent part of the amended affidavit under which this conviction was had, is as follows:

'EDWARD A. SALISBURY

being duly sworn upon his oath says that

ALONZO EDWARD ESTES

on or about the 7th day of MAY A.D., * * * did then and there unlawfully and feloniously commit the abominable and destestable crime against nature with one MICHAEL STONESTREET, who was then and there a boy twelve (12) years of age.'

The first clause of the sodomy statute upon which this action is based reads as follows:

'Whoever commits the abominable and detestable crime against nature with mankind or beast; * * *' Acts 1905, ch. 169, § 473, p. 584, being § 10-4221, Burns' 1956 Repl.

In this case the affidavit, in the language of § 10-4221, supra, charged the appellant

Page 473

with having committed the 'abominable and detestable crime against nature with one Michael Stonestreet, who was then and there a boy of twelve (12) years of age.' Thus, the offense was obviously alleged to have been committed between persons of the male or masculine sex of 'mankind.'

The word 'sodomy', more fully described as the 'abominable and detestable crime against nature with mankind or beast,' as the term is used in the first clause of § 10-4221, supra, when practiced between members of the human species, has a [244 Ind. 694] clear and long established meaning. It means the copulation of the male organ of one with either the mouth or anus of the other. See Glover v. State (1913), 179 Ind. 459, 465, 101 N.E. 629, 45 L.R.A.,N.S., 473.

However, notwithstanding this limitation upon the felonious act charged, appellant contends that the statute has been held to 'encompass a vast number of sexual acts which are defined simply as crimes against nature and that an affidavit, which merely charges the offense in the language of the statute, is so vague, uncertain, and indefinite' that it is subject to a motion to quash and that the decisions of this court which have upheld the right of the state to charge a defendant with the crime of sodomy in language no more definite than that contained in the statute are in violation of the Due Process, and Equal Protection clauses of the 14th Amend. of the United States Const. § 1, and Art. 1, § 12 of the Indiana Const. Appellant does not fully and, therefore, honestly state the facts upon which he bases his argument. The affidavit does more than merely charge the offense in the language of the statute. The affidavit also makes clear that the offensive act was with another human male.

We nevertheless consider the cases cited and relied upon by appellant, in support of the above contention. They are Murray v. State (1957), 236 Ind. 688, 693, 143 N.E.2d 290; Sanders v. State (1940), 216 Ind. 663, 665, 25 N.E.2d 995, and Glover v. State, supra. We find that none of the above cited cases sustain the contention of the appellant.

The cases of Murray v. State, supra, and Sanders v. State, supra, are not relevant to the issue before us. Those cases merely hold that under the statute 'the abominable and detestable crime against nature' includes[244 Ind. 695] not only acts with mankind, but also 'acts of a bestial character [between mankind and beast] whereby degraded and perverted sexual desires are sought to be gratified contrary to nature.' The case of Glover v. State, supra, as heretofore stated, merely holds that the first clause within the sodomy statute, supra, includes the offense of copulation of the male organ of one person with the mouth or the anus of the other. No authority has been cited nor has any come to our attention which has defined or described the offense with which we are here concerned, in any other manner.

For the reasons above stated, we conclude that the amended affidavit in this case was sufficiently certain to inform the appellant as to the charge against him and to prevent his being subjected to a subsequent prosecution for the same offense; that the offense, as charged, was not subject to the constitutional deficiencies asserted and, therefore, was sufficient to withstand appellant's motion to quash.

Finally, we consider appellant's contention that the evidence was not sufficient to sustain the finding of the court. Michael Stonestreet, the prosecuting witness, a boy of 12 years of age, testified specifically regarding the offense which was committed per os [copulation with the mouth]. He further stated that the act was committed in the presence of one Allen...

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21 practice notes
  • Mitchell v. State, No. 57746
    • United States
    • United States State Supreme Court of Mississippi
    • February 27, 1989
    ...(1980); State v. Sutton, 4 N.C.App. 664, 167 S.E.2d 499 (1969); Bissell v. State, 157 Ga.App. 711, 278 S.E.2d 415 (1981); Estes v. State, 244 Ind. 691, 195 N.E.2d 471 (1964); Kerlin v. State, 255 Ind. 420, 265 N.E.2d 22 (1970); Gilman v. State, 258 Ind. 556, 282 N.E.2d 816 (1972); Pieper v.......
  • Merry v. State, No. 2--774A184
    • United States
    • Indiana Court of Appeals of Indiana
    • October 7, 1975
    ...person who was coerced into committing a similar illicit act. Lamar v. State (1964), 245 Ind. 104, 195 N.E.2d 98; Estes v. State (1964), 244 Ind. 691, 195 N.E.2d 471. In Ward v. State (1965), 246 Ind. 374, 384, 205 N.E.2d 148, 154, the Supreme Court was able to state that '. . . the law is ......
  • Derouen v. State, No. 2007-KA-01005-SCT.
    • United States
    • Mississippi Supreme Court
    • November 20, 2008
    ...(1980); State v. Sutton, 4 N.C.App. 664, 167 S.E.2d 499 (1969); Bissell v. State, 157 Ga.App. 711, 278 S.E.2d 415 (1981); Estes v. State, 244 Ind. 691, 195 N.E.2d 471 (1964); Kerlin v. State, 255 Ind. 420, 265 N.E.2d 22 (1970); Gilman v. State, 258 Ind. 556, 282 N.E.2d 816 (1972); Pieper v.......
  • Dixon v. State, No. 869S177
    • United States
    • Indiana Supreme Court of Indiana
    • April 6, 1971
    ...to support the charges. The language of the indictment in the case at bar is remarkably similar to the language in Estes v. State (1964), 244 Ind. 691, 195 N.E.2d 471, 2 Ind.Dec. 584. In that case, as in previous cases, this Court repeated its stand that the statute and the charge based upo......
  • Request a trial to view additional results
21 cases
  • Mitchell v. State, No. 57746
    • United States
    • United States State Supreme Court of Mississippi
    • February 27, 1989
    ...(1980); State v. Sutton, 4 N.C.App. 664, 167 S.E.2d 499 (1969); Bissell v. State, 157 Ga.App. 711, 278 S.E.2d 415 (1981); Estes v. State, 244 Ind. 691, 195 N.E.2d 471 (1964); Kerlin v. State, 255 Ind. 420, 265 N.E.2d 22 (1970); Gilman v. State, 258 Ind. 556, 282 N.E.2d 816 (1972); Pieper v.......
  • Merry v. State, No. 2--774A184
    • United States
    • Indiana Court of Appeals of Indiana
    • October 7, 1975
    ...person who was coerced into committing a similar illicit act. Lamar v. State (1964), 245 Ind. 104, 195 N.E.2d 98; Estes v. State (1964), 244 Ind. 691, 195 N.E.2d 471. In Ward v. State (1965), 246 Ind. 374, 384, 205 N.E.2d 148, 154, the Supreme Court was able to state that '. . . the law is ......
  • Derouen v. State, No. 2007-KA-01005-SCT.
    • United States
    • Mississippi Supreme Court
    • November 20, 2008
    ...(1980); State v. Sutton, 4 N.C.App. 664, 167 S.E.2d 499 (1969); Bissell v. State, 157 Ga.App. 711, 278 S.E.2d 415 (1981); Estes v. State, 244 Ind. 691, 195 N.E.2d 471 (1964); Kerlin v. State, 255 Ind. 420, 265 N.E.2d 22 (1970); Gilman v. State, 258 Ind. 556, 282 N.E.2d 816 (1972); Pieper v.......
  • Dixon v. State, No. 869S177
    • United States
    • Indiana Supreme Court of Indiana
    • April 6, 1971
    ...to support the charges. The language of the indictment in the case at bar is remarkably similar to the language in Estes v. State (1964), 244 Ind. 691, 195 N.E.2d 471, 2 Ind.Dec. 584. In that case, as in previous cases, this Court repeated its stand that the statute and the charge based upo......
  • Request a trial to view additional results

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