ADAMS v. THE STATE

1. — Sodomy — Indictment — Sex Not a Material Issue.

In a prosecution for sodomy it would make no difference whether the party with whom sodomy was committed was man or woman, and an indictment which alleged a name which may be applicable to either sex, as the person upon whom the offense was committed, and which was otherwise according to the approved form is sufficient.

Where the warning of defendant under arrest was that any statement he made might be used in evidence either for or against him, there was no sufficient predicate to admit his confessions and they should have been excluded.

See evidence upon which it is suggested a charge on the question of permanent and temporary insanity should be given.

DAVIDSON, PRESIDING JUDGE.

Conviction for sodomy. The indictment, which is attacked, follows the form prescribed in Willson's Criminal Forms, No. 219, which is also the form prescribed by Bishop Criminal Law, volume 2, section 1013. The indictment charges the offense to have been committed upon Eric Wiley, but does not allege the sex of Eric Wiley. It is contended as the name is applicable to either sex, that the sex should have been stated; and that a venereal affair against the order of nature with a female would not be sodomy. This is not correct. Whether Eric Wiley was a male or female, the copulation being against the order of nature, such carnal knowledge would not be in the usual way, and would therefore constitute the crime of sodomy. 2 Amer. Eng. Ency. of Law, Title Sodomy. It would make no difference whether the party with whom sodomy was committed was man or woman. Lewis v. State, 35 S.W. Rep., 372. The allegation that it was committed upon Eric Wiley is sufficient in this respect, whether the party named was male or female.

The bill of exceptions shows the predicate for the admission of the written confession of appellant was based on the warning given by F.M. Johnson, a police officer, and was in writing. This officer had defendant under arrest and in his custody at the time. He testified "I told him (defendant) that any statement he made might be used in evidence either for or against him. I am the person who warned defendant. On this predicate the court admitted said written confession in evidence. This was error. Guinn v. State, 39 Tex.Crim. Rep.; Unsell v. State, 39 Tex. Crim. 330; Pryor v. State, 51 S.W. Rep., 375; McVeigh v. State, 62 S.W. Rep., 757; Perry v. State, 61 S.W. Rep., 400.

For this error the judgment must be reversed.

Upon another trial, if the facts are the same as developed by this record, we suggest that a charge be given on the question of permanent as well as temporary insanity. This question was not raised in the record, but we suggest it in view of another trial.

The judgment is reversed and the cause remanded.

Reversed and remanded.

Henderson, Judge, absent.