Weaver v. Territory of Arizona

ROSS, J. The defendant was convicted of “the infamous crime against nature.” The act relied upon, as the evidence discloses, was committed in the mouth of another person. Our statute (Pen. Code, 1901, sec. 252) is taken word for word from the California Criminal Code, sec. 286. In People v. Boyle, 116 Cal. 658, 48 Pac. 800, upon a similar state of facts, the court said: “The facts of the case do not make out the [269] offense of which the defendant has been convicted. ’ ’ Prindle v. State, 31 Tex. Cr. 551, 37 Am. St. Rep. 833, 21 S. W. 360; Commonwealth v. Poindexter, 133 Ky. 720, 118 S. W. 943; Mitchell v. State, 49 Tex. Cr. 535, 95 S. W. 500; 2 Russell on Crimes, p. 698; "Wharton’s Criminal Law, sec. 1153; 2 Bishop’s Criminal Law, sec. 1194. The trial court in holding that the facts proved constituted the infamous crime against nature relied upon Honselman v. People, 168 Ill. 172, 48 N. E. 304, and Means v. State, 125 Wis. 650, 104 N. W. 815, but we think the statutes of Illinois and Wisconsin much more comprehensive than ours. Indeed, the Wisconsin statute specifically provides that the “crime may be committed by the penetration of the mouth.” Section 4591. We greatly regret that our statute is not broad enough to cover the facts of this and like cases, and express the hope that our legislature will extend its terms. The judgment is reversed and defendant ordered discharged. FRANKLIN, C. J., and CUNNINGHAM, J., concur.