
    26835.
    Wharton v. The State.
    Decided September 29, 1938.
   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.  