White v. Commonwealth

73 S.W. 1120, 115 Ky. 473, 1903 Ky. LEXIS 110

• Court: Court of Appeals of Kentucky
• Decided: May 5, 1903
• Status: Published

Opinion

Opinion oe the court by

CHIEF JUSTICE BURNAM

Aotítrming.

The appellant was convicted of the crime of sodomy, and his punishment fixed at two years’ confinement in the penitentiary.

We are asked upon this appeal to reverse the judgment rendered pursuant thereto on two grounds: First, because the testimony did not establish the guilt of the accused; and, second, because the court erred in not pointing out and advising the jury as to the specific acts that constitute the offense.

Every person of ordinary intelligence understands what is meant by a charge of sodomy, and the instructions given in this case follow the language of the indictment, and are, we think, sufficiently specific. It is also insisted that the court erred in failing to give instructions covering the law of assault and battery! No assault and battery is charged against the defendant, except as a part of his assault.to commit the crime of sodomy. This is the offense sought to be punished, and we think the court did not err in failing to instruct the jury for any other offense.

It is also insisted that emission is necessary to the consummation of the offense of sodomy, and that, as the proof wholly failed on this point, the jury should have been directed to find the defendant not guilty. The decisions on this point have not been uniform, but the drift of the latter decisions in both the English and American courts is to hold that nothing more than res in re, without regard to the extent of the penetration or emission, is all that is required. See Bishop’s New Griminal Law, vol. 2, section 1127.

Finding no error in the record, the judgment is affirmed.