Mitchell v. State

95 S.W. 500, 49 Tex. Crim. 535, 1906 Tex. Crim. App. LEXIS 158

Opinion

DAVIDSON, Presiding Judge.

The charge was sodomy. The court in his charge submitted as a predicate for conviction that one of the parties used the mouth of the other. This is criticised in motion for new trial as not being the law. The same question was discussed in Prindle v. State, 31 Texas Crim. Rep., 551, where it was held, that such fact did not constitute the crime of sodomy. See also Peo. v. Boyle, 116 Cal., 658, 48 Pac. Rep., 800; 1 Wharton's Crim. Law, sec. 579. McClain’s Crim. Law, sec. 1153; 25 Amer. & Eng. Ency. of Law, p. 1145, and note 5, for authorities. Without further discussion of the question, we hold that the charge was not only error, but submitted a state of case upon which this crime cannot be predicated. The judgment is reversed and the cause remanded.

Reversed and remanded.