State v. Nelson ( 1917 )

Bruce, Oh. J.

This is an appeal from a judgment rendered against “the defendant in a criminal prosecution which is brought under’ the provisions of § 10,250 of the Compiled Laws of 1913. The information was as follows: “That heretofore, to wit, on or about the 15.th day of July in the year of our Lord one thousand nine hundred and fifteen .at the county of Traill, in said state of North Dakota, one E. A. Nelson, late of said county of Traill and state aforesaid, did commit the crime ■of wilfully and wrongfully committing an act which grossly injured the person of another and which was injurious to public morals, committed as follows; to wit:

“That at said time and place the said E. A. Nelson, being then and there a male person of mature years, did wilfully and unlawfully entice unto himself one Grace Irene Stipp, a female child of tender years, and •after having thus secured her unto himself, did then and there wilfully ■and wrongfully expose her, the said Grace Irene Stipp’s, private parts and lap and suck the same with his tongue and mouth, to the gross injury ,of the child, who was then and there too young and inexperienced to consent to such act or to understand the nature thereof, and to the gross injury of the public morals of said county.

“This contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of North Dakota.”

The statute under which the action was brought reads as follows: “Section 10,250. Every person who wilfully and wrongfully commits any act which grossly injures the person or property of another, or which grossly disturbs the public peace or health, or which openly outrages public decency, and is injurious to public morals, although no punishment is expressly prescribed therefor by this Code, is guilty of a misdemeanor.”

A demurrer was filed to the complaint and was overruled. In our opinion it should have been sustained. If guilty at all, the defendant was guilty of the crime of sodomy as defined by § 9615 of the’Compiled Laws of 1913. Section 10,250 (under which the prosecution was brought) is, by its terms, only applicable where “no other punishment is prescribed.” Section 9615 is extremely broad in its terms. While the common-law offense of sodomy involved the direct use of the genital organs of the male, § 9615 includes carnal hwwledge of “any male or female person by the anus or by or with the mouthWe do not desire, to discuss the revolting details of an act such as that complained of.. We are satisfied, however, that it involves an attempt to carnally know with the mouth. See Psychopathia Sexualis by Krafft-Ebing.

The judgment of the District Court is reversed and the cause is, remanded.