State v. Hill

176 So. 719, 179 Miss. 732, 1937 Miss. LEXIS 76

Opinion

Anderson, J.,

delivered the opinion of the court.

Appellee was indicted in the circuit court of Hinds county of the crime denounced by section 1170, Code of 1930, commonly known as sodomy. That statute is in this language: “Unnatural intercourse. — Every person who shall be convicted of the detestable and abominable crime against nature committed with mankind or with a beast, shall be punished by imprisonment in the penitentiary for a term of mot more than ten years.”

The indictment was demurred to by appellee, the demurrer was sustained, and the state granted an appeal under the authority of paragraph (1), section 19 of the Code, which provides that the state shall have the right to appeal from a judgment sustaining a demurrer to, or a motion to quash, an indictment.

That part of the indictment describing the ofíense is in this language: “Did then and there wilfully and unlawfully and feloniously commit the detestable and abominable crime against nature by having unnatural carnal intercourse with Fannie Walker, a female human by sucking her private sexual organs with his mouth, he the said J. D. Hill being a male person.”

We are of the opinion that the judgment of the circuit court is correct. Penetration of the body is essential to the offense. Yol. 1, Wharton’s Criminal Law (10 Ed.), section 579, and authorities in the notes.

Affirmed.