State v. Putman

434 P.2d 77, 78 N.M. 552

• Court: New Mexico Court of Appeals
• Decided: October 6, 1967
• Docket: 56
• Status: Published

Opinions

OPINION

■ WOOD, Judge.

By Count II of the information, defendant was accused of sodomy. The information was supplemented by a bill of particulars. The trial court sustained defendant’s motion to quash on the ground that the acts alleged did not constitute sodomy. The State appeals under § 21-2-1(5) (4), N.M.S.A. 1953.

The crime of sodomy is defined in § 40A-9-6, N.M.S.A. 1953. The portion of the statute applicable here reads:

“Sodomy consists of a person intentionally taking into his or her mouth or anus the sexual organ of any other person

The information charges:

“ * * * that said defendant did take into his mouth the sexual organ of another person. * * * ”

' Omitting the name of the female, the bill of particulars states:

“ * * *' the manner in which the defendant committed the act of sodomy upon her, is that he placed his tongue within her vagina.”

No issue is presented as to (1) whether there is a repugnancy between the allegations of the information and the bill of particulars, (2) whether uncertainty results in the information because of the acts alleged in the bill of particulars or (3) whether the acts alleged in the bill of particulars are surplusage. See § 41-6-35, 41-6-36, 41-6-37 and 41-6-38, N.M.S.A. 1953.

The issue is whether the acts alleged constitute the offense of sodomy. In ruling that the acts alleged did not constitute the offense, the trial court considered only the-acts alleged in the bill of particulars; it did not consider the acts alleged in the information.

In determining whether the acts alleged constitute the offense, the information and the bill of particulars are to be read together as a single instrument. Norton v. Reese, 76 N.M. 602, 417 P.2d 205 (1966). When read together, if the acts alleged do not constitute the offense charged, the information may be quashed. Section 41-6-9, N.M.S.A. 1953.

Our statute applies to acts per os as well as acts per anum. Compare Bennett v. Abram, 57 N.M. 28, 253 P.2d 316 (1953), which was decided before our statutory definition was enacted.

Our act defines sodomy to include a taking into the mouth “the sexual organ of any other person.” The statute is not limited to the sexual organ of the male. “Any other person” includes male and female. Compare Connell v. State, 215 Ind. 318, 19 N.E.2d 267 (1939).

Reading the information and the bill of particulars together, defendant is accused of acts constituting the offense of sodomy.

The order quashing Count II of the information is reversed. The case is remanded with instructions to set the order aside and to reinstate the charge.

It is so ordered.

HENSLEY, Jr., C. J., concurs. SPIES S, J., concurring in part and dissenting in part.