DocketNumber： 9953
Judges： Angstman, Adair, Bottomly, Castles, Duncan, Harrison
Filed Date： 8/4/1959
Status： Precedential
Modified Date： 11/10/2024
Defendant was accused of the infamous crime against nature alleged to have been committed on or about the 8th day of November 1957. The crime was alleged to have been committed by forcibly inserting his penis into the mouth of a nine year old boy.
The jury found defendant guilty of an attempt to commit the crime charged in the information.
He was sentenced to serve a term of fifteen and one-half years in the state prison at Deer Lodge. His motion for a new trial was denied and he has appealed from the judgment and from the order denying his motion for a new trial.
Here the record shows, as pointed out in the dissenting opinion written by MR. JUSTICE ADAIR, that the jury found defendant guilty of an attempt to commit the crime charged, whereas the judgment recites that defendant was convicted of the infamous crime against nature. This recitation in the judgment was evidently an inadvertence.
Counsel for defendant does not predicate any error on the part of the court in the respect above noted. The point was not raised in the trial court and probably for a good
Defendant would then find himself in exactly tbe same situation in which be now is. Tbe amount of tbe punishment is well within tbe limits of tbe law for one guilty of an attempt to commit tbe infamous crime against nature coupled with a prior conviction of which defendant pleaded guilty. Tbe punishment for tbe infamous crime against nature is not less than five years. Tbe maximum could be any number of years. Tbe punishment for an attempt is one-balf of tbe longest term for tbe offense attempted. R.C.M. 1947, section 94-4711. Tbat could bave been fifteen and one-balf years or more without reference to tbe prior conviction, and where there is a prior conviction tbe punishment cannot be less than ten years. R.C.M. 1947, section 94-4713.
With these considerations in mind it is not strange tbat able counsel for defendant did not raise this point either in tbe trial court or here. In tbe dissenting opinion, reference is made to tbe ease of State v. Shambo, 133 Mont. 305, 322 Pac. (2d) 657, as sustaining tbe contention tbat tbe judgment here cannot stand. Tbat ease does not touch upon tbe point here involved. Tbe jury’s verdict here was and is sustained by tbe evidence. By it, defendant was found guilty of an attempt to commit tbe infamous crime against nature. Tbe judgment, reciting as it does tbat defendant was convicted of tbe infamous crime against nature, is erroneous. It is subject to correction by tbe trial court, but to do so does not require
The prosecution was based upon section 94-4118, R.C.M. 1947, reading:
“Every person who is guilty of the infamous crime against nature, committed with mankind or with any animal, is punishable by imprisonment in the state prison not less than five years. ’ ’
The appeal presents for consideration but one legal ques-tion, and that is, may the crime denounced by section 94-4118, supra, be committed when the act complained of is alleged to have been committed by penetration of the mouth rather than of the anus. The point was raised by several assignments of error. Counsel for defendant contends that section 94-4118 can only be violated by penetration of the anus as that was the method recognized by the common law in defining- sodomy.
There are many cases supporting defendant’s contention. Among them may be cited People vs. Boyle, 116 Cal. 658, 48 Pac. 800; Prindle v. State, 31 Tex. Cr. R. 551, 21 S.W. 360, 37 Am. St. Rep. 833; State v. Johnson, 44 Utah 18, 137 Pac. 632; Davis v. Brown, 27 Ohio St. 326; Estes v. Carter, 10 Iowa 400; State v. McGruder, 125 Iowa 741, 101 N.W. 646; Ausman v. Veal, 10 Ind. 355, 71 Am. Dec. 331; Kinnan v. State, 86 Neb. 234, 125 N.W. 594, 27 L.R.A., N.S., 478.
It should be noted that many of the states where this rule was thus declared have since amended the statute so as to make it sodomy when there is penetration of the mouth.
There are also many cases, under statutes identical or similar to ours, which take the view that the statute is violated when there is penetration of the mouth. Among them may be cited State v. Start, 65 Or. 178, 132 Pac. 512, 46 L.R.A., N.S., 266; State v. Maida, 29 Del. 40, 96 A. 207; Commonwealth v. Poindexter, 133 Ky. 720, 118 S.W. 943; State v. Altwatter, 29
With decisions both ways on the subject, this court in State v. Guerin, 51 Mont. 250, 152 Pac. 747, rejected the rule contended for by defendant’s counsel herein and held specifically that the crime may be committed per os. That decision settled the question in this state. It has stood for forty-three years. The rule of stare decisis should control.
If the doctrine of stare decisis means anything it should apply here. Of that doctrine, Mr. Justice Adair in his dissenting opinion in Guardian Life Ins. Co. of America v. State Board of Equalization, 134 Mont. 526, 335 Pac. (2d) 310, 334, stated:
“Stare decisis. The Constitution of Montana and the laws enacted by the Legislature in conformity thereto will continue as the law of this jurisdiction only when the time-honored dictrine of stare decisis is observed and followed in this and the other courts of our state.
“Stare decisis is a Latin phrase. It is the principle that the decisions of this court should stand as precedents for future guidance. It means to stand by decided eases; to uphold precedents; to maintain former adjudications. In law, it means that when the highest appellate court of the jurisdiction has once laid down a principle applicable to a particular given state of facts, it will adhere to that principle and apply it to all future eases, irrespective of whether the parties and property are the same.
“Under this principle, a deliberate decision of a court, made after argument on a question of law fairly raised in the case, and necessary to its decision, is an authority of binding precedent in the same court and likewise in other courts of equal*501 or lower rank in subsequent cases where that particular point is again in controversy.
“It is not necessary that we be concerned with how good or how bad the first pronouncement of the highest appellate court of the state might be in construing and interpreting the Constitution of our state or the enactments of our state Legislative Assembly so long as that construction holds and is adhered to until such time as the people see fit to change the Constitution and the Legislature sees fit to change the laws enacted by it under the constitutional method applicable thereto. The highest appellate court of the state should stand by its decided cases and rely upon the people and the Legislature to take care of any modifications deemed necessary to the law by reason of any decisions of the Supreme Court construing or interpreting the provisions of either the Constitution or statutes of the state.”
The majority opinion in the Guardian Life Insurance case, supra, did not take issue with the dissenting opinion so far as it defined the doctrine of stare decisis. The court divided on the question as to what was decided by the case against Mr. Justice Adair sought to apply the doctrine.
This case is not comparable to that of State ex rel. Morgan v. State Board of Examiners, 131 Mont. 188, 309 Pac. (2d) 336, 340, quoted from in the dissenting opinion, wherein we followed the rule previously announced that “previous decisions should not be followed to the extent that error may be perpetuated. ’ ’
In that case we expressly overruled a former one (Bryant v. Board of Examiners, 130 Mont. 512, 305 Pac. (2d) 340) which had stood for less than three months. There were several reasons for so doing, as pointed out in the opinion; none of which apply here. In the first place it was by a divided court. It was not acquiesced in for a period of time, as is true in the Guerin case, now approaching forty-four years, but only for three months. It affected important public official
Likewise this case differs from that of State ex rel. James v. Aronson, 132 Mont. 120, 314 Pac. (2d) 849, in that there was no acquiescence in the case of State ex rel. Mitchell v. Holmes, 128 Mont. 275, 274 Pac. (2d) 611, which was overruled by the Aronson case.
The Legislature, at the first opportunity, passed a new act omitting some of the provisions condemned by this court in the Mitchell case, and in no sense acquiesced in it. It too was by a divided court and this court will more readily reexamine a legal question under such circumstances than in a case of a unanimous decision.
In addition to what was so well stated by MR. JUSTICE ADAIR as to what is meant by stare decisis, we might add that the doctrine should be applied to all questions of law which were considered and determined even though some of the justices may admit that they can write a better opinion the other way. The doctrine should be applied to the case of State v. Guerin, supra, which, as above noted, has stood for forty-three years without any change by the legislative assembly. Applying the rule of stare decisis to the Guerin case, the judgment appealed from here must be and is affirmed.