
    CONSTRUCTION OF THE STATUTES RELATING TO SODOMY.
    Common Pleas Court of Washington County.
    State of Ohio v. Douglas Price.
    
    Decided, 1911.
    
      Criminal Law — Meaning of the Phrase “Any Opening of the Body” as Used in Section 7020-1, Revised Statutes (General Code, 13043).
    
    The head is a part of the human body and the mouth is an “opening of the body” within the meaning of the statute relating to sodomy.
    
      
       Following the overruling of the demurrer in this case the defendant entered a plea of “not guilty,” and on trial was found guilty under a charge which instructed the jury that carnal copulation by the mouth was an offense within the statute. The case was taken to the circuit court and there affirmed without report, and- upon application to' the Supreme Court for leave to file a petition in error leave was refused.
    
   Jones, J.

On demurrer to indictment.

The indictment in this case charges what our criminal code calls “Sodomy.” The act is charged to have been in the mouth of the suffrant. Omitting the formal parts of the indictment:

“do find and present that one. Douglas Price, late of the said county of Washington, on the 23d day of August, 1910, at the county of Washington aforesaid, did unlawfully, willfully and maliciously have carnal copulation against nature, with a certain male person, to-wit, with one John Sersain, in an opening of the body of the said John Sersain other than the sexual parts, to-wit, in the mouth of the said John Sersain, he the said John Sersain then and there being a human being other than said Douglas Price, and that said Douglas Price then and there unlawfully committed the crime of sodomy as aforesaid, contrary to the statute,” etc.

To this indictment a demurrer is filed, and the contention of counsel for the accused is that the mouth is not “any opening of the body” within the meaning of the statute covering sodomy; that the head is not a part of “the body,” and that the term “body” means only the trunk as distinguished from the head and limbs.

In support of this claim the definition of the word “Body” as given in the American & English Enc. is cited. The definition there given is as follows: “Body. — The main part or frame of anything in distinction from the subordinate or less important; as of man in opposition to his head and limbs, or of places.”

Up to May 4, 1885, there was no statute of this state -defining sodomy, or making it a crime. On that date a- law was-enacted that read as follows:

“Whoever shall have carnal copulation against nature, with another human being or with a beast, shall be deemed guilty of sodomy, and shall, on conviction thereof, be imprisoned in the penitentiary not more than twenty years.” 82 O. L., 241.

But this statute was later deemed insufficient' by the lawmakers of the state, possibly because the terms “copulation ‘ against nature” was too indefinite and uncertain, when coupled with the term “sodomy,” which undoubtedly originally meant copulation per cmum only. But there has gradually been an extension of the meaning of the term until it now generally includes .“bestiality,” intercourse with a beast, whether in the sexual part or otherwise, and also to include all carnal intercourse with a human being except in and by the sexual parts. And the term “crime against nature” and “coptilation against nature” have come to have a very broad meaning.

At any rate the law was changed in 1889 so that it now reads as follows:

“Whoever shall have carnal copulation in any opening of the body, except the sexual parts, with another human being, or with a beast, shall be deemed guilty of sodomy. ” * •* *

This wording seems to me little improvement on that of the act of 1885, for it leaves room for a contention that copulation with a beast in the sexual part would not be within the terms of the law.

Indeed that very question has been raised, and, by at least one circuit court held to be well made. True, the comma after the word “being” may have been intended to limit the term “except the sexual parts” to intercourse “with another human being” and so make any form of intercourse with a beast “sodomy.” But a criminal statute must be strictly construed and can be little aided by intention of the Legislature. Why did not the framer say: “Whoever shall have carnal copulation in any manner with a beast, or shall have carnal copulation with any other human being except by the sexual parts, shall be punished by imprisonment,” etc.

This is a digression from the question made in this cáse, however, but may be excused in view of the loose and insufficient wording of so many of our statutes, even in criminal matters.

As I have already said, the claim of counsel, for the accused is that under the definition of the word “body” given in the Encyclopedia of Law, the head is not a part of the body, and consequently the mouth is not “any opening in the body,” and that, as the indictment here shows that the copulation was in the mouth, the indictment shows on its face that no crime was committed under the wording of the statute.

This claim is not supported by the authorities, and even resting on the definition on which the defense relies one would have to take a very narrow and' artificial view of it to so hold.

The Standard Dictionary defines “body” as “the entire phys: ical part of a man or other animal; the material or physical organism, as distinguished from the soul; as a dead body.”

The medical definition of the,term “body” is: “the material part of man as distinguished from the mind or spirit.” Foster’s Enc. Medical Dictionary.

The statute under which this indictment is drawn has never, so far as I have been able to learn, been construed by any Ohio court. Several of the states, under statutes making it a crime to have intercourse “against the order of nature,” have held that carnal copulation by the mouth was a crime. They refuse to hold that copulation per anum is the only act included in the “crime against nature.” But those states do not use the same verbiage as ours.

Most of the states go no further in their designation of the act than to call it “a crime against nature,” and say “Whoever shall commit a crime against nature with any other human being or with a beast shall be deemed guilty of sodomy,” etc.

Such statutes have been held to include carnal copulation in the mouth, as well as per anum, and in any form with a beast.

However, the term “crime against nature” seems very indefinite, and except by force of usage would mean nothing and define nothing, for murder is a crime -against nature, and so is rape. But usage has given to it the very common meaning of all unnatural forms of carnal copulation. Our statute seeks to be more definite and certain, and to define with párticularity the crime against which it is aimed.

In Iowa a statute almost identical with-our own was construed. That statute is as follows: “Whoever shall have carnal copulation in any opening of the body except the sexual parts, with any other human being, or shall have carnal copulation with a beast, shall be deemed guilty of sodomy.” It will be seen that this is in the exact wording of our present statute so far as the words “any opening of the body except the sexual parts” is concerned. This statute was construed in the case of State v. Gage, 116 N. W., 596, and was held to include the mouth as an “opening of the body.”

This seems a fair and reasonable construction of the.law.-

“The rule of strict construction of penal statutes does not require the courts to go to the extent of defeating the purpose of the statute by a severe and technical application of the rule.” Conrad v. State of Ohio, 75 O. S., 52.

But, to hold that the term “body” in this statute does not include the head, and that consequently carnal. copulation by the mouth was no crime within the statute, would be to give the term “body” a “severe, and technical application,” and one very forced and artificial.

The demurrer to the indictment will therefore be overruled.  