Home/Court of Appeals of Georgia/Wharton v. State

Wharton v. State

198 S.E. 823, 58 Ga. App. 439, 1938 Ga. App. LEXIS 302
CourtCourt of Appeals of Georgia
DecidedSeptember 29, 1938
Docket26835
StatusPublished
Cited by8 cases

This text of 198 S.E. 823 (Wharton v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wharton v. State, 198 S.E. 823, 58 Ga. App. 439, 1938 Ga. App. LEXIS 302 (Ga. Ct. App. 1938).

Opinion

Broyles, C. J.

1. “‘Sodomy is the carnal knowledge and connection against the order of nature, by man with man, or in the same unnatural manner with woman.” Code, § 26-5901. “The carnal knowledge necessary to constitute this offense [sodomy] is the same that is required in the case of rape, In this offense, as in rape, the crime is complete on proof of penetration.” Russell on Crimes (7th Eng. ed.), 976. And “a conviction of sodomy can not be sustained, the evidence not showing penetration.” Green v. State (Tex. Cr. App.), 79 S. W. 34; 1 Wharton’s Crim. L. (11th ed.), 969, §§ 754, 758.

2. Sodomy may be committed by the insertion of the virile organ of the male into the rectum or the mouth of another person (White v. State, 136 Ga. 158, 71 S. E. 135; Herring v. State, 119 Ga. 709, 46 S. E. 876; Jones v. State, 17 Ga. App. 825, 88 S. E. 712), but it can not be committed by the insertion of the male organ between the legs or thighs of another person. Such an insertion is not a “penetration” within the meaning of the law.

3. Under the foregoing rulings and the undisputed facts of the instant case, the defendant was not guilty of the offense charged (sodomy), and the verdict was contrary to law and the evidence.

Judgment reversed.

MacIntyre and Guerry, JJ., concur. C. L. Hilton, T. J. Evans, for plaintiff in error. W. G. Neville, solicitor-general, contra.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Barrett
293 S.E.2d 896 (Court of Appeals of North Carolina, 1982)
State v. Ludlum
281 S.E.2d 159 (Supreme Court of North Carolina, 1981)
State v. Whittemore
122 S.E.2d 396 (Supreme Court of North Carolina, 1961)
Beckham v. State
120 S.E.2d 341 (Court of Appeals of Georgia, 1961)
State v. Shambo
322 P.2d 657 (Montana Supreme Court, 1958)
Rozar v. State
91 S.E.2d 131 (Court of Appeals of Georgia, 1956)
State v. Davis
79 So. 2d 452 (Mississippi Supreme Court, 1955)
Barton v. State
53 S.E.2d 707 (Court of Appeals of Georgia, 1949)

Cite This Page — Counsel Stack

Bluebook (online)
198 S.E. 823, 58 Ga. App. 439, 1938 Ga. App. LEXIS 302, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wharton-v-state-gactapp-1938.