Harvey v. the State

Full title: ARTHUR HARVEY v. THE STATE

Court: Court of Criminal Appeals of Texas

Date published: Jan 27, 1909

115 S.W. 1193 (Tex. Crim. App. 1909)

115 S.W. 1193

Opinion

No. 4528.

Decided January 27, 1909.

Sodomy — Indictment.

See opinion for indictment held insufficient to sustain a conviction for sodomy. See court's suggestion for additional legislation.

Appeal from the District Court of Hill. Tried below before the Hon. W.C. Wear.

Appeal from a conviction of sodomy; penalty, five years imprisonment in the penitentiary.

Leaving out the formal parts of the indictment, the same alleged that the defendant did unlawfully, wickedly, diabolically, and against the order of nature, have a venereal affair with ___________ a woman, and did carnally know the said ___________ in the vagina of her the said __________ by then and there casting her the said ___________ in her vagina with the mouth of him the said __________ and thereby and therewith penetrating the vagina of her the said ___________ and did then and there commit and perpetrate against the order of nature the abominable and detestable crime of sodomy, against the peace and dignity of the State.

Ivy, Hill Greenwood, for appellant. — Cited cases in the opinion.

F.J. McCord, Assistant Attorney-General, and A.M. Frazier, County Attorney, and V.L. Shurtleff, Assistant County Attorney, for the State. — Honselman v. People, 48 N.E. Rep., 304; Allsman v. Veal, 10 Ind. 335

RAMSEY, JUDGE.

The appellant appeals from a conviction in the court below, charged with sodomy.

The charge is too horrible to contemplate, and too revolting to discuss. We think the indictment does not charge an offense against the laws of this State. Almost this identical question was discussed and decided in the case of Lewis v. State, 35 S.W. Rep., 372. A similar transaction was held not to be sodomy under the statute in the case of Prindle v. State, 31 Tex. Crim. 551. We think that some legislation should be enacted covering these unnatural crimes.

For the reason that no offense is charged in the indictment against the laws of this State, the judgment of conviction is reversed and the prosecution ordered dismissed.

[Rehearing denied, February 10, 1909. — Reporter.]

Dismissed.