The People v. William Hodgkin (Michigan): December 3, 1892
For a chronological, annotated timeline of 19th-century cases that mention "buggery," "crime against nature," or "sodomy" and that were appealed to state courts in the U.S. see:
Timeline: Published U.S. State Appeals Case Reports, 1800-1899
The following legal case involving an alleged act of bestiality is one of the 19th century cases that mention "buggery," "crime against nature," or "sodomy".
Published Decision of the Michigan Supreme Court
THE PEOPLE V. WILLIAM HODGKIN:[1]
Sodomy—Sufficiency of evidence.
Emission is necessary to the consummation of the offense of sodomy,
and, while it may be inferred from proof of penetration and
the other circumstances of the case, it is a fact which the prosecution
must establish before a conviction can be claimed.
Error to Sanilac [County]. (Beach, J.) Argued November 17,
1892. Decided December 3, 1892.
Respondent was convicted of the crime of sodomy, and
sentenced to the State House of Correction at Ionia for
three years. Judgment reversed. The facts are stated
in the opinion.
J . B. Houck and Charles H. MoGinley, for respondent.
A. A. Ellis, Attorney General, and W. H. Burgess,
Acting Prosecuting Attorney, for the people.
MONTGOMERY, J. The respondent was informed against
under section 9292, How. Stat., and convicted of the crime
of sodomy. The circuit judge instructed the jury that
the evidence of the offense was complete upon proof of
penetration only. The defendant assigns error upon this
[End page 27]
instruction, which assignment presents the only question which we deem it necessary to consider.
The statute does not, in terms, define what shall constitute
the offense. There has been some disagreement in the cases
upon the question of whether proof of emission is necessary
to establish the offense at the common law, the two
offenses of rape and sodomy having been regarded by some
courts as kindred, so far as relates to this question; but, as
stated by Mr. Bishop, "though writers generally assume
that rape and sodomy stand on common ground, reflection
may suggest differences." 2 Bish. Crim. Law, § 1127. In
England the question was not fully settled until 1781, when
it was held that proof of emission was necessary to the consummation
of the offense. Hill's Case, 1 East, P. C. 439. See
Stafford's Case, 12 Coke, 37. The American cases are not
uniform. The following cases support the claim of the prosecution
that proof of penetration only is necessary: Com. v.
Thomas, 1 Va. Cas. 307; Comstock v. State, 14 Neb. 205 (15
N. W. Rep. 355); Pennsylvania v. Sullivan, 1 Add. 143.
In North Carolina and Ohio the doctrine that emission is
necessary obtains. State v. Gray, 8 Jones (N. 0.), 170;
Williams v. State, 14 Ohio, 226.
The question has never been decided by the Supreme
Court of this State. But the Legislature in 1841 enacted
a statute, the second section of which reads:
" Whereas, upon the trials for the crimes of buggery
and rape, * * * offenders may escape by reason of
the difficulty of the proof which has been required of the
completion of those several crimes: for a remedy thereof,
be it enacted, that it shall not be necessary, in any of these
cases, to prove the actual emission of seed, in order to
constitute a carnal knowledge, but that carnal knowledge
shall be deemed complete upon proof of penetration only."
By Rev. Stat. 1846, p. 730, this statute was repealed. A
subsequent statute has been enacted which dispenses with
the necessity of proof of emission in rape. It is contended
[End page 28]
that the effect of the repeal of the statute of 1841 is to revive the common law, and such, we think, is the general rule (End. Interp. Stat. § 475), although this rule may perhaps be subject to exception. See State v. Slaughter, 70 Mo. 484. But it will be observed that the act of 1841 was a clear legislative recognition of the common-law rule as laid down by the Ohio and North Carolina courts, and we think that the repeal of this statute evinces a purpose to revive the common-law rule as it was then understood to obtain in this State, and should be given force in determining what the common-law rule in this State then was, prior to the enactment of that statute. We think, therefore, that proof of emission was a necessary ingredient of the offense, and, while it may be inferred from proof of penetration and the other circumstances of the case, yet it is a fact which the prosecution must make out before a conviction can be claimed, and the instruction was therefore erroneous.
Judgment will be reversed, and a new trial ordered.
The prisoner will be remanded, to the custody of the sheriff
of Sanilac county.
The other Justices concurred.
Links to PDFs of the Original Case Reports
People v. Hodgkin, 94 Mich. 27 (1892)
People v. Hodgkin, 53 NW 794 (1892)
Downloads of PDFS of Page Images of Court Documents
Briefs and Records from the Appellate Case before the Michigan Supreme Court:
Originals held by the Library of Michigan
See also: Timeline: Published U.S. State Appeals Case Reports, 1800-1899
Notes
- ↑ This is the text of The People v. William Hodgkin, 94 Mich 27 (1892). Also published as 53 NW 794 (1892).
