View source for Commonwealth v. J. (Pennsylvania): January 16, 1899

For a chronological, annotated timeline of all the 19th century cases that mention "buggery," "crime against nature," or "sodomy" see:
=[[Timeline: Published U.S. State Appeals Case Reports, 1800-1899]]=

The following legal case is one of the 19th century cases those that mention "buggery," "crime against nature," or "sodomy".




= Published Decision of the Court of Perry County=
==COMMONWEALTH v. J.==

This is the full text of the case as published in 21 Pa. C. 625 (1899)

Commonwealth v. J--.

Criminal law-Buggery-Acts of March 31, 1860 Sec. 33. and
June 11,  1879-Constitutional law-Title of Act-Indictment Attempt

The offense specified in Sec. 33 of the Act of March 31, 1860, does not
apply to an offense committed with an animal.

The Act of June II, 1879, P. L. 148, is unconstitutional in so far as it
extends Sec. 33 of the Act of March 31, 1860, to offenses committed with
animals.

An indictment charging an attempt must set forth some particulars of
the attempt.

Indictment for attempt to commit sodomy or buggery with
a heifer. Q. S. Perry Co. Nov. T., 1898, NO.5.
Motion in arrest of judgment.

Wm. H. Kelt, district attorney, for commonwealth.
J. L. Markel and J. M. Barnett, for defendant.

LYONS, P. ]., Jan. 16, 1899.-Before the jury was sworn
the defendant's counsel moved, to quash the bill of indictment.
This motion was overruled .and the defendant directed
to plead. The defendant was then, on Nov. 21, 1898,
tried and convicted. A motion in arrest .of judgment was
then filed for the following reasons:

1.	 The indictment fails to charge any offense under the
statute law of Pennsylvania, and the said bill concludes,
"Contrary to the form of the Act of Assembly," etc.
2. The indictment charges an attempt but fails to make
" any allegation of facts, or to charge or disclose any details in
support of the charge of an attempt whereby it may appear
from the said bill prima facie whether such attempt was in
fact made, as required in an indictment at common law.
The same reasons substantially were assigned in the motion
to quash the indictment.
The indictment was framed under the thirty-third section
of the Act of March 31, 1860, P. L. 392, Purdon, page 539,
pl. 387, which reads: "If any person shall unlawfully and
maliciously assault another with the intent to commit sodomy
or buggery, or if any person shall wickedly and unlawfully
solicit and incite, and endeavor to persuade another, to permit
and suffer such person to commit sodomy or buggery
with him, such person shall be guilty of a misdemeanor, and
being convicted of an assault with the intent aforesaid, of

[End of page 625]

so inciting another to suffer the act of sodomy or buggery
to be committed with him, shall be sentenced, etc."
It is clear that the language of this section does not cover
or include the offense charged in this bill of indictment, but
was intended to punish the act when committed between one
man and another man or between a man and a woman.
The language, "if any person shall ... assault another,
or if any person shall . . . solicit and incite, and endeavor
to persuade another to permit and suffer such person to commit
sodomy or buggery with him," is not broad enough to
include a "heifer" or other beast. Even a liberal construction
would not include the offense when committed with an
animal, and the statute is highly penal.
But it was argued that the section above referred to was
enlarged and extended so as to include this offense, by the
first clause of Sec. 1 of the Act of June 11, 1879, P. L. 148,
Purdon, page 539, pl. 388, which declares that "the terms
sodomy and buggery, as and where used in the laws of this
commonwealth, shall be understood to be a carnal copulation
by human beings with each other against nature res veneria
in ano or with a beast." Such no doubt was the legislative
intent. But the Constitution, Art. 111, Sec. 6, declares, "No
law shall be revived, amended or the provisions thereof extended
or conferred by reference to its title only, but so much
thereof as is revived, amended, extended or conferred shall
be re-enacted and published at length." The Act of 1879,
therefore, in so far as it enlarges the Act of 1860, would be in
conflict with the above provision of the Constitution.
It is also a legislative interpretation of a statute, and is
therefore an attempt to exercise judicial power and is a violation
of Art. v, Sec. I, of the Constitution of this commonwealth.
This is decided in Titusville Iron Works v. Keystone
Oil Co., 122 Pa. 627. See also East Grand Street, 121
Pa. 596. The indictment therefore cannot be sustained
under the statute.
As to the second reason assigned: It was formerly held
that "in cases of indictments for attempts it was not necessary
to point out the specific means by which the attempt was to
be consummated." See Wharton's Precedents of Indictments'
and Pleas, 2d ed., bottom page 719, note c. But in the 4th
ed. of the same work, bottom page 598, the same author says:
"The general principle was laid down that in cases of indictments
for attempts it is not necessary to point out the specific
means by which the attempt is to be consummated. But this

[End of page 626]

cannot be sustained. To charge a man with attempting to
do a wrong is almost as loose as would be to charge him with
'designing' or 'meaning' to do the thing.  While it is generally
sufficient that the offense be charged substantially in
the language of the statute there are many exceptions to the
rule. In the 9th ed. of Wharton's Criminal Pleading and
Practice, the learned author says: "It is not enough to say
that the defendant 'attempted' an offense, though this is all
the statute says: The particulars of the attempt must be
given." See Sec. 221(3). No particulars of the attempt are
set out in the indictment in this case. It is therefore too indefinite,
vague and uncertain to be supported at common law:
Randolph v. Com., 6 S. & R. 398; Mears v. Com., 2 Grant,
385.
The motion in arrest of judgment must therefore be sustained.
And now, Jan. 16, 1899, judgment is arrested and the defendant
discharged without day.

From James W. Shull, Esq., New Bloomfield, Pa.



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*[[Media:Comm v J Decision.pdf|"Commonwealth v. J.", 21 Pa.C. 625 (1899)]]



=Also see:=
=[[Timeline: Published U.S. State Appeals Case Reports, 1800-1899]]=


=Notes=
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