DocketNumber: 32355.
Citation Numbers: 53 S.E.2d 707, 79 Ga. App. 380, 1949 Ga. App. LEXIS 659
Judges: Sutton, Felton, Gardner, Parker, Townsend, MacIntyre
Filed Date: 6/1/1949
Status: Precedential
Modified Date: 10/19/2024
1. In an indictment charging a crime capable of being committed in more than one way, a failure to charge the manner in which the crime was committed subjects the indictment to a proper special demurrer, but not to an oral motion to quash in the nature of a general demurrer, where the indictment has charged the crime in the substantial language of the Code.
2. The charge complained of was erroneous for the reasons given in division 2 of the opinion. MacINTYRE, P. J., dissents from the ruling in this headnote.
1. Omitting the formal part, the indictment was in the following language: "For that said accused . . did then and there have carnal knowledge and connection, against the order of nature, and in an unlawful manner, with one Edgar Luckey," etc. The material portions of the motion to quash was in the following language: "The indictment does not set forth any offense against this defendant, for the reason that it is not alleged in what way and manner carnal knowledge was had, and for that reason . . we move to quash the indictment. How and in what manner it was against the order of nature, and we say . . we will have to have other information for us to represent the defendant in the way and manner in which it was done. . . There would be more than one way and manner in which this offense might be committed, and we are entitled to know the way and manner the State alleges it was committed."
"Every indictment . . shall be deemed sufficiently technical and correct, which states the offense in the terms and language of this Code, or so plainly that the nature of the offense charged may easily be understood by the jury." Code, § 27-701. Section 26-5901 defines sodomy in these terms: "Sodomy is the carnal knowledge and connection against the order of nature, by man with man, or in the same unnatural manner with woman." We should have been inclined, without question, to think that the indictment, being in the terms of the Code, was sufficient but for the decision in Herring v. State,
Since the decision in the Herring case is binding upon us on the principle enunciated there, we have no recourse but to bow to its authority, and, consequently, to determine whether the indictment should have been quashed on demurrer. However, since the court in the Thompson case refused to take a view of the crime as including "all unnatural copulations," even where *Page 383 the practice involved the odious and unnatural copulationperlinguam in vagina between two women, we shall examine rather more closely than we would have otherwise done the necessary elements of the crime. It can hardly be necessary for us to say that the subject is distasteful. The question involved, however, is one of law and cannot be brushed aside or lightly disposed of. An adequate consideration of it seems to require a somewhat full discussion, and we shall endeavor to meet this requirement without unnecessary indelicacy of expression, but also without prudery or idle denunciation of the crime. This character of conduct is, of course, a vice of depraved natures and instances of its coming before the courts of this State are fortunately rare. Courts are not, however, called upon to expound upon the esthetics or lack of esthetics of a crime in determining the law involved, and however much they may look upon the crime with disgust, their abhorrence of the crime is not to be allowed to blind them to a correct application of the principles of law involved.
The first mention of the crime of sodomy in our statutes, as far as we are aware, appears in the Penal Code of 1816, § 61, which, while it does not define the crime, provides that its punishment shall be by life imprisonment. The Penal Code of 1816 was never made operative, but the section just mentioned was reiterated in the Penal Code of 1817, § 61 (See Prince's Digest of Georgia Laws, 1820, p. 350, § 61). We are aware of no English statute which enumerates the elements of or defines the crime, unless it be true, as Justice Fortescue says in the case of The King v. Wiseman, 92 Eng. Rep. (Full Reprint), 774, the definition is given in a statute of the Edgar (ca. 959 A. D.). We are, of course, aware of and familiar with the statutes which, while not defining the crime beyond denominating it the "crime against nature, among Christians not to be named," prescribe its punishment as death (25 Henry 8, c. 6, repealed by 1 Mary 1); 5 Elizabeth c. 17 (which revived and made perpetual 25 Henry 8, c. 6). The statute of 24 25 Victoria c. 100, § 61, reduced the penalty to life imprisonment (as the Georgia statute had done some forty-five years before) or for a term of not less than ten years. Since there are no copies of the statutes of Edgar extant in the State Library or otherwise available to use, we must seek elsewhere a definition of the crime. *Page 384
The crime derives its name from the City of Sodom where it seems that the sexual perversion was prevalent (Genesis 19:1-35), and that the crime interdicted was perpetrated in one way, per anum, for in the Mosaic law it was written, "thou shalt not lie with mankind as with womankind (Leviticus 18:22; 20:13; Deuteronomy 23:17, and see I Kings 14:24; Romans 1:27, and Corinthians 6:9). The Greeks denominated the crime pederasty, connoting coition per anum, or literally, love of boys, though the frequent use of the word pais, meaning either boy or girl, would seem to indicate that the crime was likewise committed upon girls. The Romans forbade the crime spoken of as venus postica (see Petronius' Satyricon) (hence the archaic English word, "venery," meaning sexual excesses), which strongly hints that the crime prohibited was perpetrated per anum, if indeed, it does not mean exactly that! Lord Coke in his Institutes gives this definition: buggery or sodomy. "Buggery is a detestable and abominable sin, amongst Christians not to be named, committed by carnal knowledge against the ordinance of the creator, and order of nature, by mankind with mankind, or with brute beast, or by womankind with brute beast." 2 Coke's Institutes (Ed. 1797), Part III, p. 58.
Hawkins in his pleas of the Crown, p. 357, states: "All unnatural copulations, whether with man or beast, seem to come under the notion of sodomy . . ," citing 12 Coke 26, 37 (77 Eng. Rep., Full Reprint, 1318), and 3 Inst. 58. Even the most casual examination of Hawkins' citations reveals that in making the statement Hawkins was using sodomy as a generic term and meant that what was otherwise known at common law as buggery and bestiality came within the definition of sodomy, the terms being synonymous at that time. We do not think that he meant that in sodomy proper any species of copulation between man and man or man and woman, other than per anum, was to be defined sodomy. In Wharton's Criminal Law, Vol. I (12th ed., 1932), 1034, § 754, we find this statement, similar in import to what we have just said: "Sodomy is the crime against nature,' or the ``infamous crime against nature, these phrases being synonymous with the word ``sodomy' in all its various branches or designations, and is a generic term which embraces (1) sodomy proper, (2) buggery, and (3) bestiality." *Page 385 It seems that the text writers are agreed that sodomy at common law was committed per anum and not otherwise. 2 Russell, Crimes, p. 698; 2 Bishop New Crim. Law, § 1193; 25 Am. Eng. Enc. Law (2nd ed.), p. 1145; McClain, Crim. Law, § 1153; Wharton, Crim. Law 579; Wharton, Crim. Law (12th ed.), pp. 1034-1047; 3 Burdick, Law of Crime, §§ 876-880; Rex v. Jacobs, 168 Eng. Rep. (Full Reprint) 830.
In the United States where the common-law crime of sodomy has been prohibited or the statute enacted contemplated the common-law crime, the courts have uniformly, with one or two exceptions, refused to take unto themselves the legislative function of expanding the definition, leaving that function to repose within the proper power of the legislatures, where we assume it belongs. See Commonwealth v. Poindexter,
In those States where it might appear that the courts of their own motion expanded the definition, it will be found, upon an examination of the cases, that it was not the court which changed the common-law definition, but the change in the definition of sodomy was made by the statutes. See Honselman v. People,
In East's Pleas of the Crown (1803 ed., 1st ed. published in 1716), we find the identical language used in our statutes to define sodomy (Penal Code, 1833, § 36, Ga. L. 1833, p. 152; and all subsequent Codes, including Code § 26-5901): "This offence [sodomy] . . consists in a carnal knowledge committed against the order of nature by man with man, or in the same unnatural manner with woman, or by man or woman in any manner with a beast." The last phrase constitutes the definition given in our Codes for bestiality. It would seem, therefore, that our statute is nothing more or less than a codification of the common law, and in 27 L.R.A. (N.S.) 478, note, we find this comment on our statute, which, while not binding upon us, strengthens us in our view: "It appears that sodomy at common law was defined in the very words of the Georgia statute." "Content is given to many enactments of specific crimes only by resort to common-law definitions" (Common Law Crimes in the United States, 47 Columbia Law Rev. 1332); and "we [must] go to the common law to get the meaning of the words used." White v. State,
It would seem that the Supreme Court of Georgia in its interpretation of our statute has expanded the common-law definition of sodomy in the Herring case and reaffirmed its action in the White case, where this court certified the question of whether or not the crime of sodomy may be committed otherwise than per anum. It seems to us that under such interpretation the defendant is entitled to have the information as to which one of the ways the State contends that he committed the crime of *Page 387
sodomy (Johnson v. State, supra; Locke v. State, supra); and upon his calling for the information by a special demurrer in writing before pleading to the merits, where such information is not furnished him in the indictment, the indictment should be quashed. However, an oral motion in the nature of a general demurrer would not reach the defect sought to be corrected here. Hence the court did not commit reversible error in overruling the oral motion to quash in the nature of a general demurrer.Gilmore v. State,
2. In special ground 2, error is assigned upon the following excerpt from the charge of the court: "Now, gentlemen of the jury, if you find that there has been a conflict in the testimony, it is your duty to reconcile that conflict so as to impute perjury to no one." The defendant contends that this excerpt is erroneous because there was much conflict in the testimony; that the testimony of Edgar Luckey was false, and that practically all of the testimony of J. E. Harrison was false, and the charge deprived the jury of the right to consider that such evidence was false or any part of it was false, and made it "mandatory" that the jury find that no witness had sworn falsely; whereas there were many material conflicts in the evidence.
Chief Judge SUTTON and Judges FELTON, GARDNER, PARKER, and TOWNSEND hold this charge to be erroneous and are of the opinion that the case should be reversed for that reason on the following grounds: The defendant offered no witness. He only made a statement in his own behalf, and as pointed out in one of the briefs of counsel for the defendant, the court fully and correctly charged the jury as to their right to believe the defendant's statement, even in preference to the sworn testimony. There were, however, conflicts on material matters in the testimony of the State's witnesses. The plaintiff in error has the burden of showing that error was committed on the trial. SeeBeavers v. Mabry,
With this the writer cannot agree. I think that the law does make it the duty of the jury to reconcile conflicts in the evidence so as to impute perjury to no witness. Chicago Bldg. Mfg. Co. v. Butler, supra. The jury commissioners are instructed to put in the jury box upright and intelligent men. Code, § 59-106. I think, as ordinarily intelligent and reasonable men, the jurors understood from the charge of the court that, if they could not reconcile the testimony of the witnesses, it was their duty to determine whom and what they would believe. The charge here, in my opinion, is a correct statement of a general rule of law, and if the defendant had desired a more specific and more concrete instruction, he should have so requested. Tabor
v. Macon Ry. c. Co.,
The other questions raised by the special grounds of the motion for a new trial may not arise on another trial of the case, and we deem it unnecessary to consider them. Of course, since the *Page 390 case is reversed on one of the special grounds, the general grounds of the motion will not be considered.
Pursuant to the act of the General Assembly approved March 8, 1945 (Ga. L. 1945, p. 232), requiring that the whole court consider any case in which one of the judges of a division dissents, this case was considered and decided by the court as a whole.
Judgment reversed. Sutton, C. J., Felton, Gardner, Parker,and Townsend, JJ., concur. MacIntyre, P. J., dissents from theruling in division two of the opinion.
Beavers v. Mabry , 195 Ga. 169 ( 1942 )
Isom v. State , 71 Ga. App. 803 ( 1944 )
Knighton v. State , 72 Ga. App. 43 ( 1945 )
Harvey v. State , 55 Tex. Crim. 199 ( 1909 )
People v. Schmitt , 275 Mich. 575 ( 1936 )
Prindle v. State , 31 Tex. Crim. 551 ( 1893 )
Mitchell v. State , 49 Tex. Crim. 535 ( 1906 )
Lewis v. State , 36 Tex. Crim. 37 ( 1896 )
Perryman v. State , 63 Ga. App. 819 ( 1940 )
Stuckey v. State , 213 Ga. 525 ( 1957 )
Shaw v. State , 238 Ga. App. 757 ( 1999 )
State v. Black , 149 Ga. App. 389 ( 1979 )
Daniels v. State , 237 Md. 71 ( 1964 )
Scott v. State , 207 Ga. App. 533 ( 1993 )
Moak v. State , 222 Ga. App. 36 ( 1996 )
Overstreet v. State , 250 Ga. App. 336 ( 2001 )
Haska v. State , 240 Ga. App. 527 ( 1999 )