Young v. State

Decision Date31 October 1923
Docket NumberNo. 24278.,24278.
Citation194 Ind. 221,141 N.E. 309
PartiesYOUNG v. STATE.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Vanderburgh County; Philip O. Gould, Judge.

Benny Young was convicted of conspiring to commit a felony, and he appeals from the judgment. Affirmed.W. D. Hardy, of Evansville, for appellant.

U. S. Lesh, Atty. Gen., and D. F. Stansbury, of Indianapolis, for the State.

MYERS, J.

Appellant was indicted, tried, and convicted in the court below of an alleged felonious conspiracy to commit a felony. This indictment was predicated on sections 2647 and 2374, Burns' 1914 (sections 641 and 473, p. 584, Acts 1905). His motion for a new trial was overruled and judgment of imprisonment in the Indiana Reformatory. From this judgment appellant appealed to this court. The overruling of his motion for a new trial is the only error assigned. In support of his motion he relies entirely on insufficient evidence to support the decision of the court, and that such decision was contrary to law.

[1] Appellant has asked for an oral argument. He has briefed his case thoroughly. He has clearly stated the questions and his position in relation thereto. Nothing will be gained by an oral argument, and his petition, therefore, is denied.

The indictment charges the felony in the words of the statute. Section 2374, supra, provides that “whoever commits the abominable and detestable crime against nature with mankind or beast; or whoever entices, allures, instigates or aids any person under the age of twenty-one years to commit masturbation or self-pollution, shall be deemed guilty of sodomy,” that is to say, “whoever commits *** ; or whoever entices, etc.,” is guilty of the same offense, sodomy, and in either case, on conviction, subject to the same penalty.

The unquestioned indictment in the instant case was in one count, charging a conspiracy to commit a felony, as defined in the second clause of what is known as the sodomy statute. The evidence also makes a case which must rest upon proof of a felony defined by that clause. Appellant does not and cannot seriously question the sufficiency of the evidence to prove the contemplated and consummated act. He does, however, vigorously insist: (1) That the proven act was not an offense within the meaning of the words “masturbation or self-pollution,” and therefore not embraced within the definition of the alleged felony; (2) if the evidence disclosed an offense within the language of the statute, the actors were guilty of sodomy, and those who encouraged, aided, and counseled the commission of the offense were guilty as principals and not as conspirators.

Appellant, in support of his first contention, cites and relies largely upon the case of Sherrick v. State, 167 Ind. 345, 355, 79 N. E. 193, 196, wherein it is said:

We are not permitted to extend a statute to those within the mischief, but not within the purview. In other language, an offense not within the words cannot be adjudged a crime because within the reason.”

[2] We quite agree with appellant that statutes defining criminal offenses are, as a general rule, to be strictly construed to avoid the creation of penalties by construction. Groff v. State, 171 Ind. 547, 85 N. E. 769, 17 Ann. Cas. 133;State v. Terre Haute Brewing Co., 186 Ind. 248, 115 N. E. 772. However, this principle, well settled as it is, does not prohibit a reasonable interpretation of legislative language for the purpose of determining its design or object. If it thereby appears that the evil to be remedied is characterized by words sufficiently comprehensive to cover the legislative intention, without resorting to implication, they will be regarded as adequately defining the offense intended. State v. Goodwin, 169 Ind. 265, 82 N. E. 459;State v. Shanks, 178 Ind. 330, 99 N. E. 481;State v. Fairbanks, 187 Ind. 648, 115 N. E. 769.

[3] The obvious purpose of the last clause of the statutes was to strengthen the law prohibiting unnatural sexual practices, which were not made criminal at common law. To that end the words “masturbation or self-pollution” were chosen by the Legislature to define the evil intended to be corrected. Appellant would define these words within the common-law definition of sodomy, and there is where he falls into error. True, they should not be extended to include acts not within their clear and reasonable meaning, nor should they be limited to exclude acts which they fairly cover. However, appellant insists that the words “masturbation or self-pollution” are self-defining, meaning self-pollution or self-abuse and nothing more. Consequently, the act shown to have been committed was such that one could not have alone practiced under any conceivable condition.

[4] Courts, in passing on legislative enactments, from whatever position attacked, will assume that the lawmakers used words and language advisedly and...

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4 cases
  • Dixon v. State
    • United States
    • Indiana Supreme Court
    • April 6, 1971
    ...(1913), 179 Ind. 459, 101 N.E. 629, 45 L.R.A., N.S., 473. Cunnilingus. The charge in the case at bar described above. Young v. State (1923), 194 Ind. 221, 141 N.E. 309. The courts have held that the statute which encompasses the above acts is applicable to persons of both sexes, holding tha......
  • State v. Robbins
    • United States
    • Indiana Supreme Court
    • February 17, 1943
    ... ... on that date. When the [221 Ind. 133] state rested appellee ... asked for a peremptory instruction of not guilty ...          Enough ... has been written in the books about this crime. Glover v ... State, 1912, 179 Ind. 459, 101 N.E. 629, 45 L.R.A.,N.S., ... 473; Young v. State, 1924, 194 Ind. 221, 141 N.E ... 309; Connell v. State, 1939, 215 Ind. 318, 19 N.E.2d ... 267; Sanders v. State, 1940, 216 Ind. 663, 25 N.E.2d ... 995. Examination of the records in each of them reveals that ... in the Young and Connell cases the misconduct of the accused ... ...
  • Mendelvitz v. State
    • United States
    • Indiana Appellate Court
    • February 24, 1981
    ...to be tried. Durrett v. State (1966), 247 Ind. 692, 219 N.E.2d 814; Palmer v. State (1926), 197 Ind. 625, 150 N.E. 917; Young v. State (1923), 194 Ind. 221, 141 N.E. 309." 251 Ind. at Ind.Code 35-42-5-1 (Supp.1980) provides: "A person who knowingly or intentionally takes property from anoth......
  • State v. Lopez
    • United States
    • Indiana Appellate Court
    • June 11, 1973
    ...to the better sentiments of decent humanity, and to leave the record undefiled by details. . . .' Our Supreme Court, in Young v. State (1923), 194 Ind. 221, 141 N.E. 309, stated: 'The obvious purpose of the last clause of the statute was to strengthen the law prohibiting unnatural sexual pr......

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