State v. Guerin

152 P. 747, 51 Mont. 250, 1915 Mont. LEXIS 116

• Court: Montana Supreme Court
• Decided: November 3, 1915
• Docket: No. 3,553
• Status: Published

Opinions

MR. CHIEF JUSTICE BRANTLY

delivered the opinion of the court.

To an information charging him with the offense denounced by the statute as the infamous crime against nature, the defendant interposed a general demurrer which the court sustained. Thereupon judgment was rendered dismissing the prosecution.. The state has appealed.

"We shall not set forth the charge in detail. It suffices for [1] present purposes to state that it alleges that the defendant committed the offense by taking into his mouth by force the private member of another male person. The learned district judge was of the opinion that such an act is not within the meaning of the statute. It declares: “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.” (Rev. Codes, sec. 8359.) Section 8360 declares further: “Any sexual penetration, however slight, is sufficient to complete the crime against nature.” The conclusion of the district judge is, we must confess, in accord with the views of text-writers and courts which assume that, since the statute embodies the common-law definition of the crime of sodomy (4" Blackstone, 215), it denounces as crimes only those acts which were 'punishable as such in England, and, inasmuch as the crime at common law could be consummated with mankind only by penetration through the anus, the act charged here is not a violation of the statute. This view is founded upon the ease of Rex v. Jacobs, Russ. & R. C. C. 331. In that case the defendant had been, convicted upon proof that he had consummated the act of copulation in the same manner as that charged here. The question submitted to the judges was whether this was sodomy. They declared that it was not and directed a pardon to be applied for. The case does not give any information as to why this conclusion was reached. On the other hand, the rule was, we apprehend, as stated by Hawkins in Chapter IV, Book I, of his Pleas of the Crown, as follows: “All unnatural carnal copulation, whether with man or beast, seem to come under the notion of sodomy, which was felony by the ancient common law.” If this was the rule, then not only is the case of Bex v. Jacobs, but the interpretation given by the courts of the several states to their statutes which are identical, or substantially identical with ours, declaring that the crime can only be committed by penetration through the amas, in direct conflict with it. In denouncing the crime, the legislature concluded that it was so well understood by every intelligent person that mere mention of it by name would be sufficient. Every intelligent adult person understands fully what the ordinary course of nature demands or permits for the purpose of procreation, and that any departure from this course is against nature. It therefore seems to be trifling with our intelligence to say that copulation accomplished by the use of the anus is against nature, whereas the same act accomplished by the use of the mouth is not. This view contravenes common sense. It would be just as appropriate to say that the term “mankind,” as used in the statute, requires the prohibited act, in order to be a crime, to be accomplished upon a male person, whereas the term includes the female as well as the male.

On this subject, in State v. Start, 65 Or. 178, 46 L. R. A. (n. s.) 266, 132 Pac. 512, the supreme court of Oregon said: “In the order of nature the nourishment of the human body is accomplished by the operation of the alimentary canal, beginning with the mouth and ending with the rectum.. In this process food enters the first opening, the mouth, and residuum and waste are discharged through the nether opening of the rectum. The natural functions of the organs for the reproduction of the species are entirely different from those of the nutritive system. It is self-evident that the use of either opening of the alimentary canal for the purpose of sexual copulation is against the natural design of the human body. In other words, it is an offense against nature. There can be no difference in reason whether such an unnatural coition takes place in the mouth .or in the fundament — at one end of the alimentary canal or the other. The moral filthiness and iniquity against which the statute is aimed is the same in both eases. Each is rightfully included in the true scope and meaning of the common-law definition quoted above from Hawkins.” This statement not only recognizes and applies the rule as stated by Sergeant Hawkins, supra, but also the dictates of common sense.

It was well said in Commonwealth v. Poindexter, 133 Ky. 720, 118 S. W. 943, in which the question' was whether sodomy could be accomplished by penetration through the mouth: “We must confess that we are unable to see why the act with which appellees stand charged is not as much a crime against nature as if done in the manner sodomy is usually committed. ’ ’ After this utterance, however, the court proceeded to say, in effect, that it yielded its judgment to the authority of precedent as established by Bex v. Jacobs, supra, and the text-writers and courts which have recognized it as controlling, and held that penetration by the mouth was not criminal.

We shall not stop to comment upon the many cases cited by counsel for the defendant. They will be found collated in State v. Johnson, 44 Utah, 18, 137 Pac. 132, and Kinnan v. State, 86 Neb. 234, 21 Ann. Cas. 335, 125 N. W. 594, with the note thereto in 27 L. R. A. (n. s.) 478. That numerically considered they preponderate in favor of the judgment of the district court, we are, as we have said, compelled to admit; but that ¿hey commend themselves to a judgment founded on common sense enlightened by the observation and experience of the average man, we deny.

Section 8360 declares “any sexual penetration” is sufficient, which we take to mean penetration to any extent by any means. It means this if it means anything; and conceding that section 8359, standing alone, must be interpreted by the rule applied by the trial court, section 8360 broadens its application so as to make it include the act in question here, without regard to the so-called common-law rule.

Several of the courts have declined to restrict the reach of the statute and have declared that it covers all cases of sexual connection accomplished with mankind by any other means than that indicated by nature. In addition to State v. Start, supra, we cite and approve: Honselman v. People, 168 Ill. 172, 48 N. E. 304; Kelly v. People, 192 Ill. 119, 85 Am. St. Rep. 323, 61 N. E. 425; State v. Whitmarsh, 26 S. D. 426, 128 N. W. 580; Herring v. State, 119 Ga. 709, 46 S. E. 876. To our minds, the reasoning of these cases is conclusive. In Honselman v. People, in which the facts disclosed that the defendant had used the same means to consummate the sexual act as here, the court said: “The method employed in this case is as much against nature, in the sense of being unnatural and against the order of nature, as sodomy or any bestial or unnatural copulation that can be conceived. It is within the statute.”

The judgment is reversed, and the cause remanded for further proceedings.

Reversed and remanded.

Mr. Justice Sanner and Mr. Justice Holloway concur.