Ex parte Bergen

Willson, Judge. Appellant was charged by complaint before a justice of the peace with the offense of sodomy, and upon an examination of the case the justice held him to bail in the sum of one thousand dollars. Appellant applied to Hon. A. J. Hood, judge of the District Court, for a writ of habeas corpus, which was granted, and upon a hearing of the same, Judge Hood remanded appellant to the custody of the sheriff in default of bail in the sum of five hundred dollars, and from this judgment appellant now appeals to this court. It is contended by appellant’s counsel that “sodomy” is not an offense against the law of this State, because the same is not defined as an offense by the Penal Code; and that therefore the appellant, not being charged with any offense against the law , of the State, is illegally restrained of his liberty, and should be discharged from custody. Article 342 of the Penal Code provides for this offense as follows: “ If any person shall commit, with mankind or beast, the abominable and detestable crime against nature, he shall be deemed guilty of sodomy, and, on conviction thereof, he shall be punished by confinement in the penitentiary for not less than five nor more than fifteen years.” This article is a precise copy of Article 2033 of Paschal’s Digest, the same being Article 399c of the Penal Code, as amended by act of February 11, 1860, In Fennell v. The State, 32 Texas, 378, it was held that the article quoted does not so define the “crime against nature,” or sodomy, as to make it punishable in this State. Two of the justices of the Supreme Court dissented from that decision. In the following cases it was held that “fornication” was not defined in the Penal Code, and was not therefore an offense punishable by law: The State v. Smith, 32 Texas, 167; The States. Rahl, 33 Texas, 76; Wolf v. The State, 6 Texas Ct. App., 195; The State v. Foster, 31 Texas, 578. All these decisions were based upon [56] article 3 of the Penal Code, which reads as follows: “In order that the system of penal law in force in this State may be complete within itself, and that no system of foreign laws, written or unwritten, may be appealed to, it is declared that no person shall-be punished for any act or omission as a penal offense, unless the same is expressly defined and the penalty affixed by the written law of this State.” In The State v. Randle, 41 Texas, 292, the doctrine of these cases is criticised and questioned. In that case it is said, referring to Article 3: “This article was intended to prohibit the prevailing practice in this State, before the adoption of the Code, of looking to the common law, and outside of the penal' statutes of the Republic and State, for the prosecution of persons for what were designated as offenses at common law, but which were not made penal by our statutes. Article 3 was not intended, and cannot be legitimately construed, to mean that resort may not be had to other systems for illustration, or in aid of the construing any doubtful or uncertain provision of the Criminal Code. If, however, the intention of Article 3 is that contended for by appellee’s counsel, its force no longer exists. The act of February 12, 1858, Article 4 of - the Penal Code, declares that ‘The principles of the common law shall be the rule of construction, when not in conflict with the Penal Code or Code of Criminal Procedure, or with some other written statute of the the State.’ The force of the objection, based on Article 3, is destroyed when taken in connection with Article 4.” But, conceding the correctness of the decision in Fennell v. The State, and the other cases we have cited in the same line, they were based upon an ■ article of the Penal Code which has since been materially altered, and with a view, doubtless, to obviate the difficulties arising under those very decisions. That article now reads as follows: “In order that the system of penal laws in force in this State may be complete within itself, and that no system of foreign laws, written or unwritten, may be appealed to, it is declared that no person shall be punished for any act or omission, unless the same is made a penal offense, and a penalty is affixed thereto, by the written law of this State.” (Revised Penal Code, Art. 3.) It is no longer required that the offense should be “expressly defined.” (Robinson v. The State, 11 Texas Ct. App., 309.) If an act or omission, eo nomine, is made a penal offense, and a penalty is affixed thereto, it becomes an offense punishable by law. Under Article 3, as it now is, and [57] in connection with Article 4 immediately following it, we are of the opinion that “sodomy,” which is the “abominable and detestable crime against nature” known to the common law, is, by Article 343 of the Penal Code, made an offense, with a penalty affixed thereto in compliance with Article 3 of the Penal Code, and such being our opinion, and there being no other question in this case demanding our attention, the judgment of the district judge is affirmed. " . Affirmed. Opinion delivered April 13, 1883.