Locke v. State ( 1973 )

OPINION

RUSSELL, Judge.

Harold Locke was charged and, convicted of committing a “crime against nature” as proscribed by T.C.A. § 39-707 against Minnie R. Rogers, and his punishment set at not less than five (5) nor more than seven (7) years in the penitentiary. The State’s theory of the case was that Locke entered the apartment of a neighbor, Mrs. Rogers, late at night on the pretext of using the telephone, presented a butcher knife, and forced Mrs. Rogers to submit to two episodes of cunnilingus. This theory is adequately supported by the evidence, if we can say that what the victim testified to described cunnilingus. She was upset during her testimony as to the details of the occurrences, and counsel stopped with only these two cursory descriptions of the sex acts:

“A. * * * I told him I wasn’t taking off my clothes, so I took my panties off and he made me get up on the bed, he pulled my legs apart and he started licking on me.

“Q. Did he lick?.

“A. Yes, he did.

“Q. Your private parts?

“A. (Crying) That’s what he did.”

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“Q. You got back on the bed the second time. What did he do the second time?

“A. He opened up my legs like I said and got down right between my legs and just started licking me.

“Q. He licked your private parts again ?

“A. Yes.

We hold that this language, with reasonable inferences and in the context of the other details of the attacks, made out cunnilingus.

We next confront the question of whether or not cunnilingus is an act made unlawful as a “crime against nature” by T.C.A. § 39-707. We hold that it is. Our Supreme Court has heretofore held that £gllgtio is such a crime. Fisher v. State, 197 Tenn. 594, 277 S.W.2d 340. And, in Sherrill v. State, 204 Tenn. 427, 321 S.W.2d 811, our Supreme Court has specifically adopted the liberal Maine doctrine defining crimes against nature as bringing “all unnatural copulation with mankind or a beast, including sodomy, within its scope”, as first pronounced in the Maine case of State v. Cyr, 135 Me. 513, 198 A. 743. Maine has since broadened its case law to specifically hold cunnilingus included. State v. Townsend, 145 Me. 384, 71 A.2d 517. It would be a paradox of legal construction to say that fallatio, “which in common language means sexual perversion committed with the male sexual organ and the mouth”, Sherrill v. State, supra, is proscribed as a crime against nature, but cunnilingus is not. We recognize that many states limit crimes against nature strictly to sodomy; but the weight of authority supports the view which we follow, said to be the better reasoned in 48 Am.Jur. 549, Sodomy § 2, This court used the following language in Stephens v. State, Tenn. Cr.App., 489 S.W.2d 542 (1972):

“ * * * In its narrower sense sodomy is the carnal copulation between two human beings per anus, or by a human being in any manner with a beast. In its broader sense it is the carnal copulation by human beings with each other against nature or with a beast in which sense it includes all acts of unnatural copulation. Our Courts probably accept the broader meaning since they have held that the proscribed acts may be per os as well as per anus. * * * ”

Finally, T.C.A. § 39-707 is said to be unconstitutionally vague and indefinite. We disagree. See Stephens v. State, supra; State v. Wade M. Williams, an opinion of our Supreme Court filed May 21, 1973, at Jackson; and Charles W. Lane v. State, filed by this court in Knoxville July 23, 1973.

We express no opinion as to the constitutionality of the application of this statute to the private acts of married couples, a question inapplicable to the facts of this case, and not briefed herein. Nor does the case sub judice involve the application of the statute to consenting adults.

Affirmed.

WALKER, P. J„ concurs.