ARK.] SMITH V. STATE. 265 SMITH V. STATE. Opinion delivered October 24, 1921. SODOMY— SUFFICIENCY OF INDICTMENT.—An indictment for sodomy which charges that defendant, in the county and on a day named, unlawfully, feloniously and diabolically and by force, disregarding the laws of nature, in and upon one Dixie Smith, a female person, did make an assault upon and did then and there unlawfully, feloniously and diabolically carnally know and abuse her, etc., held sufficient. Appeal from Sebastian Circuit Court, Ft. Smith District; John, Brizzolara, Judge; affirmed. David Partain and G. L. Graint, for appellant.
266 SMITH V. STATE. [150 The indictment was bad, and the demurrer should, have been sustained. 81 Pac. 680 (Cal.) ; 35 CaL 675; 127 Cal. 99; 59 Pac. 836; 29 Texas 44; 94 Am. Dec. 251. The motion in arrest of judgment should have been Sustained. Th : e - court erred in admitting evidence relative to the commission of the offense by using the tongue. The prosecuting witness being herself guilty, it Would be necessary for . her to be corroborated before defendant could be convicted. 186 Pac. 388 (Cal.) ; 36 Cyc. 505 C; 111 Ark. 299. J. S. Utley, Attorney General, Elbert Godwin and W. T. Hamnbock, for appellee. . Indictment charging sodomy is sufficient, Without setting forth in detail the manner in which it was committed. 23 Standard . Encyclopedia of Procedure, pp. 962, 963; 9 Standard Encyclopedia of Procedure, 1157; 8 R. C. L. sec. 364, p. 333. There was no error in admitting testimony as to the manner' in which 'the offense was committed. Sodomy may be committed by the mouth or otherwise than per ,anvics. 71 S. E: 135; 136 Ga. 158; 46 S. E. 876-881, 882; 1 Wharton Cr. Law, (10th Ed.), sec. 579; Clark, Criminal Law (2nd. Ed.) 367. There was no request of the court to give an instruction relative to whether or not the prosecuting witness was an accomplice of the defendant. 89 Ark. 3013;' 95 Ark. 593; 101 Ark. 513; 102 Ark. 588. WOOD, J. The appellant was convicted under an indictment, which is as follows : "The grand jury* of Sebastian County, Greenwood District thereof, in the name and by the authority of the *State of Arkansas, accuse the defendant, C. V. Smith, of the crithe of sodomy, committed as follows, to-wit: The . said defendant, in . tlie county, district and ,State aforesaid,' on the 13th day of March, 1921, unlawfully, feloniously and diabolically and by force, disregarding the laWs of nature; in and Upon 'one Dixie Sndith, a fe-
ARK.] SMITH V. STATE. 261 male person, did make an assault upon and • did then and there unlawfully, feloniously and diabolically carnally know and abuse her, the said Dixie Smith, against • the peace and dignity of the State of Arkansas.", 'Was the indictment sufficient? - Section 2746 of Crawford & Moses' Digest provides: "Every person convicted of sodomy, or buggery, shall be imprisoned in the penitentiary for a period nOt less than five nor more than twenty-one years." In the absence of a more specific statutory definition as to the ingredients of the offense, we must look to the common law for such particulars. Mr. Bishop says: "Not alone to . protect the public morals, but for other reasons also, soaomy—called sometimes buggery, sometimes the offense against nature, and sometimes the horrible crime not fit to be named among Christians, being a carnal copulation by human beings with each other against nature, or with a beast—is, though committed in secret, highly criminal." .1 Bishop's Criminal Law, page 308; § 503; also 2 Bishop's Criminal Law, § 1191. And in 8 R. C. L., § 364, page 333, it is said: "The crime of sodomy, broadly and comprehensively .speaking,-consists of unnatural Sexual relations between persons of the same sex, or with beaSts, or between persons of ' different sex, but in an unnatural manner." (Citing cases.) The Supreme Court of New York, in Lambertson v. People, 5 . Parker's Criminal Rep -orth;" :iiage 200, held valid an indictment precisely similar, in essential av6r-ments, to the one now under review. The court'said: "The words usual in indictments 'Or . the ,. offehs . e of 'which the defendant was conViCted od, WhicW, were omitted in this case are not , wOrds of:this .chaiacter. The „ indictinent contains all the -, Words of: . a rt req . uired. '*. * For all .that ,the pleader , should have:stated in charging the offense is . expressly- alleged; • dr; by- fieces-sary implication, included in 'what is alle4od, in the indictment in question:"
268 [150 "An indictment or information charging sodomy, or the infamous crime against nature, naming it, with a designated person or animal, is sufficient without setting forth in detail the manner in which it was cora-mitt6d. It is unnecessary to lay the carnaliter cognovit in the indictment, in order to specify whether defendant was agent or pathic. A charge substantially in the language of the statute is, as a rule, sufficient, even though the offense is not specifically defined by the statute. An indictment charging an attempt to commit the infamous crime against nature is sufficient without an averment of a particular act constituting the attempt." 23 Standard Encyclopedia of Procedure, page 962. Cases are cited in a note in support of the text. We conclude therefore that the indictment is valid. The only other question presented is whether or not the evidence is sufficient to sustain the verdict. The evidence is revolting in detail, and it could therefore serve no good purpose to set it forth. The prosecutrix was the wife of the appellant, and, while he stoutly denies the charge and vigorously contradicts her testimony, we nevertheless find that her testimony tends to support the verdict. There is no error in the record, and the judgment is therefore affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.