Commonwealth v. Thomas , 1 Va. 307 ( 1815 )

THIS prisoner was indicted in the Superior Court oí law of Henrico county, in April, 1812, lor the crime of buggery. The jury found the following verdict: “ We of “ the jury find that the prisoner at the bar, John Thomas, “ did, contrary to the order of nature, penetrate the body “ of a mare of Joshua Doing; but it is impossible for us “ to say whether he did, or did not emit his seed into the “ body of the said mare, or elsewhere; and if the court “shall be of opinion that the said fact of penetration, “ without the fact of emission, constitutes the crime of “ buggery, then we find the prisoner guilty, and ascertain “ the term of his imprisonment five years in the peniten- “ tiary house; otherwise we find him not guilty.”

The court adjourned to the general court, by consent of the prisoner, as a question of novelty, and of: some difficulty, the point arising from the verdict.

The general court, on the 16th day of June, 1812, consisting of judges Nelson, White, Stuart, Holmes, Brock-enbrough, Johnson, Smith, and Randolph, delivered it as the unanimous opinion of the court, “ that the penetration of a beast, by a man, against the order of nature without emission constitutes the crime of buggery.”

Note. This has been vexata qumstio amongst the lawyers, and judges in England, and decisions have frequently been made both ways, particularly in the crime of rape. The general court thought that the opinion of Coke as expressed in his 3d Institutes 59, 60, and of lord Hale (1 H. H, 628) together with those modern decisions in favour of the fact of penetration alone constituting the crime of rape as well as sodomy, were more rational than the contrary opinions and decision which require both facts to be proved, and on this ground decided as mentioned above. See 1st East’s Crown Law, p. 436 —440.