Weaver v. Territory of Arizona

Arizona Supreme Court

Weaver v. Territory of Arizona

127 P. 724, 14 Ariz. 268, 1912 Ariz. LEXIS 140

CourtArizona Supreme Court

DecidedOctober 24, 1912

DocketCriminal No. 316

StatusPublished

Cited by9 cases

This text of 127 P. 724 (Weaver v. Territory of Arizona) is published on Counsel Stack Legal Research, covering Arizona Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Weaver v. Territory of Arizona, 127 P. 724, 14 Ariz. 268, 1912 Ariz. LEXIS 140 (Ark. 1912).

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Opinion

ROSS, J.

The defendant was convicted of “the infamous crime against nature.” The act relied upon, as the evidence discloses, was committed in the mouth of another person. Our statute (Pen. Code, 1901, sec. 252) is taken word for word from the California Criminal Code, sec. 286. In People v. Boyle, 116 Cal. 658, 48 Pac. 800, upon a similar state of facts, the court said: “The facts of the case do not make out the [269]*269offense of which the defendant has been convicted. ’ ’ Prindle v. State, 31 Tex. Cr. 551, 37 Am. St. Rep. 833, 21 S. W. 360; Commonwealth v. Poindexter, 133 Ky. 720, 118 S. W. 943; Mitchell v. State, 49 Tex. Cr. 535, 95 S. W. 500; 2 Russell on Crimes, p. 698; "Wharton’s Criminal Law, sec. 1153; 2 Bishop’s Criminal Law, sec. 1194.

The trial court in holding that the facts proved constituted the infamous crime against nature relied upon Honselman v. People, 168 Ill. 172, 48 N. E. 304, and Means v. State, 125 Wis. 650, 104 N. W. 815, but we think the statutes of Illinois and Wisconsin much more comprehensive than ours. Indeed, the Wisconsin statute specifically provides that the “crime may be committed by the penetration of the mouth.” Section 4591.

We greatly regret that our statute is not broad enough to cover the facts of this and like cases, and express the hope that our legislature will extend its terms.

The judgment is reversed and defendant ordered discharged.

FRANKLIN, C. J., and CUNNINGHAM, J., concur.

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ROSS, J.

The defendant was convicted of “the infamous crime against nature.” The act relied upon, as the evidence discloses, was committed in the mouth of another person. Our statute (Pen. Code, 1901, sec. 252) is taken word for word from the California Criminal Code, sec. 286. In People v. Boyle, 116 Cal. 658, 48 Pac. 800, upon a similar state of facts, the court said: “The facts of the case do not make out the [269]*269offense of which the defendant has been convicted. ’ ’ Prindle v. State, 31 Tex. Cr. 551, 37 Am. St. Rep. 833, 21 S. W. 360; Commonwealth v. Poindexter, 133 Ky. 720, 118 S. W. 943; Mitchell v. State, 49 Tex. Cr. 535, 95 S. W. 500; 2 Russell on Crimes, p. 698; "Wharton’s Criminal Law, sec. 1153; 2 Bishop’s Criminal Law, sec. 1194.

The trial court in holding that the facts proved constituted the infamous crime against nature relied upon Honselman v. People, 168 Ill. 172, 48 N. E. 304, and Means v. State, 125 Wis. 650, 104 N. W. 815, but we think the statutes of Illinois and Wisconsin much more comprehensive than ours. Indeed, the Wisconsin statute specifically provides that the “crime may be committed by the penetration of the mouth.” Section 4591.

We greatly regret that our statute is not broad enough to cover the facts of this and like cases, and express the hope that our legislature will extend its terms.

The judgment is reversed and defendant ordered discharged.

FRANKLIN, C. J., and CUNNINGHAM, J., concur.

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127 P. 724, 14 Ariz. 268, 1912 Ariz. LEXIS 140, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weaver-v-territory-of-arizona-ariz-1912.

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