Comer v. State

94 S.E. 314, 21 Ga. App. 306, 1917 Ga. App. LEXIS 568

• Court: Court of Appeals of Georgia
• Decided: November 14, 1917
• Docket: 8995
• Status: Published

Opinions

Broyles, P. J.

1. The offense of sodomy can be committed per os, or otherwise than per anum. Herring v. State, 119 Ga. 709 (46 S. E. 876); White v. State, 136 Ga. 158 (71 S. E. 135), s. c. 9 Ga. App. 307 (71 S. E. 499); Jones v. State, 17 Ga. App. 825 (88 S. E. 712).

2. While criminal statutes must be strictly construed, yet, under the construction given to section 373 of the Penal Code of 1910 by the Supreme Court in Herring v. State and in White v. State, supra, and necessarily ' adopted by this court in White v. State and in Jones v. State, supra, it follows, as a reasonable, logical, and unescapable deduction therefrom, that where a man and a woman voluntarily have carnal knowledge and connection against the order of nature with each other, they are both guilty of sodomy, whether the offense be committed by the mouth of the man or by the mouth, of the, woman.

(ft) Penal Code section 373 reads as follows: “Sodomy is the carnal knowledge and connection against the order of nature, by man with man, or in1 the same unnatural manner with woman.”' In this section the word? “the same- unnatural manner” refer to the words “against the order of nature,” and should be so construed. Sexual intercourse by the use of the sexual organ of the female and the mouth and tongue of the male is as much “against the order of nature,” and therefore is as fully covered by the statute, as where the intercourse is consummated by the use of the sexual organ of the male and the mouth of the female, or as where the unnatural connection is accomplished by the introduction of the sexual organ of one male into the mouth of another male. It is, under the interpretation of the statute given by the Supreme Court, too narrow a construction to hold that the words “the same unnatural manner” limit the connection against the order of nature, prohibited by the statute, solely to where the connection against the order of nature is consummated in some manner by the use of the sexual organ of the male.

Decided November 14, 1917.

Indictment for sodomy; from Muscogee superior court — Judge Howard. June 18, 1917.

Ed. Wohlwender, fox plaintiff in error. G. F. McLaughlin, solicitor-general, contra.

3. The indictment in this ease charged that the defendant (who -was a woman), on the 3d day of June, 1917, in Muscogee county, Georgia, committed the offense of sodomy, by unlawfully having “carnal knowledge and connection against the order of nature and in an unnatural manner with one Blake Robinson; for that the said Mary Jane Comer [the defendant], did then and there persuade, induce, permit, and consent for the said Blake Robinson to insert into her private parts his mouth and tongue, to wit, her vagina, and uterus, and the said Blake Robinson did then and there, at her request, solicitation, knowledge, consent, and permission, insert into and penetrate her vagina and uterus his mouth and tongue, thereby having carnal knowledge and-connection with the said Blake Robinson against the order of nature and in an unnatural manner, contrary to the laws of said State, the good, order, peace, and dignity thereof.” Under the rulings stated in the preceding headnotes, the court did not err in overruling the demurrer which set up that the allegations in the indictment did not show the commission of the crime of sodomy, or of any other crime under the penal laws of this State.

Judgment affirmed.

Harwell, J., concurs. BloodwortJi, J., dissents.