160 Mass. 536

November 27, 1893 - February 28, 1894

Suffolk County


Sodomy — Indictment — Statute.

An indictment under St. 1887, c. 436, alleging that the defendant at a time and place named "did unlawfully and feloniously commit a certain unnatural and lascivious act" with a person named, is sufficient.

ALLEN, J. This is an indictment under St. 1887, c. 436, in two counts, each count charging that the defendant at a time and place named "did unlawfully and feloniously commit a certain unnatural and lascivious act" with a person therein named, thus following the language of the statute, without further description. Section 2 of the statute provides that "in any complaint or indictment under this act it shall not be necessary to allege a description of the act charged to have been committed, but it shall be sufficient to allege that the defendant committed an unnatural and lascivious act with the person named or referred to in the complaint or indictment, but the Superior Court in any such prosecution, upon motion of the defendant or his counsel, shall order the district attorney to furnish him with specifications of the act charged."

The defendant objects that, irrespectively of § 2, the indictment is insufficient, and that § 2 is in violation of Article 12 of the Declaration of Rights.

We think the indictment sufficient without reference to § 2 of the statute. Before this statute, sodomy had long been known and designated as a crime against nature. St. 1804, c. 133, § 1. Rev. Sts. c. 130, § 14. Gen. Sts. c. 165, § 18. Pub. Sts. c. 207, §18. But in conformity with the decision in Rex v. Jacobs, Russ. & Ry. 331, and the doctrine of the text-books, (see 2 Bish. Crim. Law, (8th ed) § 1191; 1 Russ. Crimes, (7th Am. ed.) 700,) and the description of the offence given in an early statute, St. 1784, c. 46, the Legislature may have thought the offence made punishable by Pub. Sts. c. 207, § 18, limited to a particular

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mode of unnatural copulation; and by St. 1887, c. 436, the Legislature apparently intended to include and punish any mode of unnatural copulation not coming within the definition of sodomy as usually understood. The adjectives limit the offence to some mode of unnatural copulation, and a charge in the words of the statute is sufficient to set it forth. Commonwealth v. Ashton, 125 Mass. 384. Commonwealth v. Malloy, 119 Mass. 347. Commonwealth v. Barrett, 108 Mass. 302. State v. Williams, 34 La. An. 87.

If there were any doubt upon the foregoing point, § 2 of the statute makes the indictment sufficient. We postpone to some future time a consideration of the question how far the Legislature may go in simplifying indictments. Commonwealth v. Freelove, 150 Mass. 66. Many statutes to this end have been passed, some of which may be cited. St. 1834, c. 186, § 2; Rev. Sts. c. 133, § 10; Gen. Sts. c. 161, § 42; as to embezzlements, held valid in Commonwealth v. Bennett, 118 Mass. 443. Rev. Sts. c. 127, § 14; Gen. Sts. c. 162, § 13; as to averment of intent to defraud, held valid in Commonwealth v. Butterick, 100 Mass. 12, 17. Rev. Sts. c. 128, § 25, as to administering unauthorized oaths. Rev. Sts. c. 133, § 11; Gen. Sts. c. 172, § 12; Pub. Sts. c. 214, § 14, as to averring ownership of property stolen, often recognized as valid. See cases cited in Crocker's Notes on Pub. Sts. c. 214, § 14; Rev. Sts. c. 133, § 7; Gen. Sts. c. 171, § 17, as to offences committed near the boundary lines of counties. Gen. Sts. c. 160, § 6, as to averment of murder, held valid in Green v. Commonwealth, 12 Allen 155, 170. See also Gen. Sts. c. 161, § 20; c. 168, § 2; c. 172, § 19; St. 1864, c. 250, § 1; Commonwealth v. Hall, 97 Mass. 570; Commonwealth v. Walton, 11 Allen 238. Some force is to be given to an enactment that a particular form shall be sufficient, and the statute is available in the present case for that purpose. If there is any uncertainty in the mind of a defendant as to the particular act with which he is charged, he may apply for specifications, and the statute makes it the duty of the court to pass an order accordingly. Such specifications, especially when made by statute a matter of legal right, may be considered in determining whether the offence has been sufficiently described, in conformity to the Declaration of Rights, Art. 12. Commonwealth v. Bennett, 118 Mass. 443.

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Frost's case, 127 Mass. 550, 554. Stockwell v. Silloway, 100 Mass. 287, 295. Commonwealth v. Pray, 13 Pick. 359, 363. See also Whart. Crim. Pl. & Pr. (9th ed.) §§ 702-705.

Judgment on the verdict.

J. E. Bates, for the defendant.

F. E. Hurd, First Assistant District Attorney, for the Commonwealth.