STATE v. HILL

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Docket Number

No. 32889.

Attorney(S)

W.D. Conn, Jr., Assistant Attorney General, for the state. The one proposition presented by this appeal is whether an act of cunnilingus is condemned by the provisions of Section 1170, Code of 1930. At the common law, of course, the term "sodomy" only included "bestiality" and "buggery." Our statute, however, is careful not to use the term "sodomy," but after heading it "Unnatural Intercourse" refers to "the detestable and abominable crime against nature committed with mankind or with a beast." Section 1396, Code of 1930, provides that words in masculine gender shall embrace the female as well as male, unless a contrary intention is made manifest, and we submit that there is no such contrary intention manifested by the provisions of Section 1170. The term "infamous crime against nature" has been held to enlarge the common law meaning of "sodomy" and that it includes all unnatural copulation, whether with man or beast, per os or per anum. Hence, cunnilingus is a crime under that denomination. State v. Altwatter, 29 Idaho, 107, 157 P. 256; State v. Griffin, 174 N.C. 767, 94 S.E. 678; Ex parte DeFord, 168 P. 58; Borden v. State, 252 P. 446; State v. Peterson, 17 P.2d 925; People v. Hopwood, 19 P.2d 824; Roberts v. State, 47 P.2d 607; Ephraim v. State, 82 Fla. 93, 89 So. 344; Jackson v. State, 84 Fla. 646, 94 So. 505; Strum v. State, 168 Ark. 1012, 272 S.W. 539; Honselman v. People, 48 N.E. 304; Kelly v. People, 61 N.E. 425; Herring v. State, 46 S.E. 876; Comer v. State, 21 Ga. App. 306, 94 S.E. 314. On the foregoing authorities, the State submits that the demurrer should have been overruled and that this court should now reverse said judgment and remand the case to the lower court for trial. Jaap Higgins, of Jackson, for appellee. Sodomy in its broadest meaning is carnal copulation by human beings with each other against nature or with a beast, in which sense it includes the crime against nature, bestiality and buggery. In its narrower sense sodomy is the carnal copulation between two male human beings per anum. 36 Cyc. 502. The act must be per anum. Prindle v. State, 21 S.W. 360, 37 A.S.R. 883. Use of the mouth does not constitute sodomy. People v. Boyle, 116 Cal. 658, 48 P. 800; Mitchell v. State, 49 Tex. 535, 95 S.W. 500; Kinnan v. State, 27 L.R.A. (N.S.) 478, 86 Neb. 234; Bishop, Crim. Law, 1191-1196; Ausman v. Veal, 10 Ind. 356; 1 Wharton Crim. Law, 575-579; 1 Russell on Crimes 937; McClain Criminal Law, 1153. If we concede, for the sake of argument, that fellation, in which there is a penetration, would constitute the crime, it cannot be said that cunnilingus is a crime, for the reason that there has not been and could not possibly be a penetration. 7 Bishop on Criminal Law, par. 946; Herzog, Medical Jurisprudence, page 793; People v. Singh, 93 Cal.App. 32, 268 P. 958; State v. Gage, 139 Iowa 501, 116 N.W. 596; State v. Fenner, 166 N.C. 247, 80 S.E. 970; State v. Start, 65 Or. 178, 46 L.R.A. (N.S.) 266; Almendaris v. State, 73 S.W. 1055. While counsel must confess that the act is very revolting to the Anglo Saxon mind, we think that this is a case that addresses itself to the wisdom of the Legislature rather than to the judiciary.

Judges

Anderson, J., delivered the opinion of the court.

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STATE v. HILL.

SODOMY.

Indictment charging accused with having unnatural carnal intercourse with a woman by sucking her private sexual organs with his mouth failed to show offense of sodomy, since penetration of the body is essential to the offense (Code 1930, section 1170).

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 not 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 offense 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. Vol. 1, Wharton's Criminal Law (10 Ed.), section 579, and authorities in the notes.

Affirmed.

STATE v. HILL.

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