Koontz v. the People , 82 Colo. 589 ( 1927 )

Two informations were filed, and the cases were consolidated for trial. In one case (No. 28,859), the defendant was found guilty of taking indecent liberties with the person of the prosecuting witness, a male child under the age of 16 years. He was sentenced to imprisonment in the penitentiary for not less than 5 nor more than 7 years. In the other case (No. 28,777), the defendant was convicted on two counts, charging in different language, the infamous crime against nature with the prosecuting witness. Under each count the defendant received the same sentence as in case No. 28,859, the three sentences to run concurrently. The charges all concern one act, alleged to have been committed at the defendant's home on February 14, 1926.

1. We will first consider the objections relied upon to secure a reversal of the judgment in case No. 28,859, charging the defendant with taking indecent liberties.

(a) It is assigned as error that the trial court sustained objections to a question asked of the prosecuting witness, as to whether he had homosexual relations with persons other than the defendant. As we said inWilkins v. People, 72 Colo. 157, 209 P. 1047, if such evidence is competent, its admission is within the court's discretion, and we will not interfere with the court's ruling.

(b) The verdict is not so unsupported by the evidence as to justify a reversal. The evidence was in direct conflict, and it was for the jury to pass upon the credibility of the witnesses.

(c) The court refused to give an instruction requested by the defendant. That instruction, in effect, required the jury to acquit the defendant unless it found beyond a reasonable doubt that the offense was committed on February 14, 1926. The refusal was proper. The prosecuting witness, testified that he went to the defendant's home in the evening of "Saturday, February 14," and stayed with the defendant all night, and that the act was committed some time after midnight. The calendar shows that Saturday was the 13th of February, not the 14th. If the prosecuting witness was correct in saying that he went on the 14th, the act was committed on Monday, the 15th. If, however, he went on Saturday, the 13th, the act was committed on Sunday, the 14th. It was sufficient, to justify a verdict of guilty, for the jury to find that the offense was committed on either the 14th or the 15th.

(d) The assignment principally relied upon is the giving of instruction No. 3. The third instruction given to the jury is as follows: "In a prosecution of this character, the people are not bound to prove the exact date as alleged in the information. It is sufficient if it shall appear from the evidence, to your satisfaction, beyond a reasonable doubt, that the defendant committed the crime charged in the information at any period of time within three years before the 6th day of August, 1926, the date of filing the information."

The objection argued in this court is similar to the one passed upon in Eby v. People, 63 Colo. 276,165 P. 765, which case, however, is not cited in the briefs, though cases from other jurisdictions are called to our attention. No such specific objection was made to instruction 3 before the instructions were given to the jury; such objection, therefore, will not be considered on review. Supreme Court rule 7; Schwalbe v. Postle, 80 Colo. 1,249 P. 495; Sandner v. Temmer, 81 Colo. 57, 253 P. 400. If the specific objection now made had been called to the attention of the trial court at the proper time, the court could, and no doubt would, have avoided the difficulty by a few strokes of the pen. It was to give trial courts that very opportunity that rule 7 was adopted.

The judgment in case No. 28,859 is affirmed.

2. In case No. 28,777 there was a conviction on two counts. The first charges the commission of "the infamous crime against nature" with the prosecuting witness on February 14, 1926. The second count charges the commission of the same offense on the same date by carnally knowing the prosecuting witness "in the mouth of him the said" prosecuting witness. A motion to quash the second count was denied. The evidence to sustain both counts was to the effect that the act was committed per os. There was no evidence showing, or tending to show, a commission of the act per anum. If the act specifically charged in the second count constitutes "the infamous crime against nature," the motion to quash was properly denied.

The prosecution was brought under C.L., sec. 6695, which reads: "The infamous crime against nature, either with man or beast, shall subject the offender to be punished by imprisonment in the penitentiary for a term not less than one year, and such imprisonment may extend to life."

The statute does not say, "one of the crimes against nature," or "a crime against nature," or "any crime against nature," but "the infamous crime against nature." It does not define such crime. At common law, "the infamous crime against nature" was sodomy. 4 Blackstone, Comm. p. 215. Section 7145, C.L., provides that each and every person who may be convicted of "sodomy or the crime against nature," shall be deemed infamous, and shall be incapable of holding any office of honor, trust or profit, or voting at any election, or serving as a juror, or giving testimony. This section recognizes and adopts the common law designation of sodomy as the infamous crime against nature. But, even if it were otherwise, where the statute does not define a crime, but merely gives to it its common-law name or designation, resort must be had to the common law to ascertain what acts constitute the crime in question. State v.Johnson, 44 Utah 18, 137 P. 632. At common law, sodomy, "the infamous crime against nature," was committed only by penetration per anum; penetration per os did not constitute the crime. Rex v. Jacobs, 1 Russ. Ryan's Cr. Cas. 331; State v. Johnson, 44 Utah 18,137 P. 632; Weaver v. Territory, 14 Ariz. 268,127 P. 724; Kinnan v. State, 86 Neb. 234, 125 N.W. 594, 27 L.R.A. (N.S.) 478 (annotated in 21 Ann. Cases, 335);People v. Boyle, 116 Cal. 658, 48 P. 800; Prindle v.State, 31 Tex. Cr. 551, 21 S.W. 360, 37 Am. St. Rep. 833;Mitchell v. State, 49 Tex. Cr. 535, 95 S.W. 500; Lewis v.State, 36 Tex. Cr. 37, 35 S.W. 372, 61 Am. St. Rep. 831.

Counsel for the people cite the following cases to the contrary: Honselman v. People, 168 Ill. 172,48 N.E. 304; Kelly v. People, 192 Ill. 119, 61 N.E. 425, 85 Am. St. Rep. 323; Woods v. State, 10 Ala. App. 96,64 So. 508; Strum v. State, 168 Ark. 1012, 272 S.W. 359; Smithv. State, 150 Ark. 265, 234 S.W. 32; State v. Maida, 6 Boyce (Del.) 40, 96 A. 207; Ephraim v. State,82 Fla. 93, 89 So. 344; Jackson v. State, 84 Fla. 646, 94 So. 505;White v. State, 136 Ga. 158, 71 S.E. 135; Jones v. State,17 Ga. App. 825, 88 S.E. 712; Comer v. State,21 Ga. App. 306, 94 S.E. 314; Territory v. Wilson,26 Haw. 360, 362; Glover v. State, 179 Ind. 459, 101 N.E. 629, 45 L.R.A. (N.S.) 473; Young v. State, 194 Ind. 221,141 N.E. 309; State v. Hurlbert, 118 Kan. 362,234 P. 945; State v. Guerin, 51 Mont. 250, 152 P. 747; Statev. Griffin, 175 N.C. 767, 94 S.E. 678; State v. Nelson,36 N. D. 564, 163 N.W. 278; Franklin v. State, 33 Ohio Cir. Ct. 21; Ex Parte De Ford, 14 Okla. Crim. 133,168 P. 58; State v. Start, 65 Or. 178, 132 P. 512, 46 L.R.A. (N.S.) 266; State v. Wedemeyer, 65 Or. 198, 132 P. 518;State v. Whitmarsh, 26 S. D. 426, 128 N.W. 580; In reBenites, 37 Nev. 145, 140 P. 436. Many of these cases were decided under statutes materially different from ours, while in other cases, the court cites, as sustaining its ruling, the very cases controlled by such statutes. We are constrained to hold that, under our statute, insertion per os does not constitute sodomy, the infamous crime against nature. It does, however, come within the statute prohibiting the taking of indecent liberties, and was relied upon by the people to secure a conviction in case No. 28,859, the judgment in which case we have just affirmed. The act charged in this second count is so loathsome, so revolting, that courts have seized upon various statutory expressions to bring the act within the prohibition of the law. We have no such statutory expressions in this state to justify or excuse us in so holding. We cannot, because of our belief that the act charged against the defendant is even more vile and filthy than sodomy, stretch the sodomy section of the statute to include it. Robinson v. People, 23, Colo. 123, 46 P. 676. We must not permit our detestation of the act to mislead us into assuming and exercising a purely legislative function, by creating a new felony, punishable by confinement in the penitentiary for a period ranging from one year to life and by the deprivation of important civil and political rights. The Supreme Court of Utah, in State v. Johnson, 44 Utah 18, said: "It is to be regretted that there is no statute in this state making the acts charged in the information punishable as a crime. The legislature can, and no doubt will, when its attention is called to the matter, denounce them as crimes and prescribe proper penalties." We express the same regret and the same hope.

As the conviction under the first count was for the same act, as that charged in the second count, judgment in case No. 28,777 is reversed, with the direction to dismiss the case. On Rehearing