People v. Allison

SHAW, J.

Defendant was prosecuted under section 286 of the Penal Code, which provides that “Every person who is guilty of the infamous crime against nature, committed with mankind or with any animal, is punishable by imprisonment in the state prison not less than five years.”

Defendant appeals from the judgment of conviction and attacks the indictment, to which he interposed a demurrer upon the ground that the facts stated in the indictment did not constitute a public offense, which was overruled. The indictment is as follows: “James F. Allison is accused by the grand jury ... of the infamous crime against nature, committed as follows, to wit: The said James F. Allison, . . . did willfully, unlawfully and feloniously commit the infamous crime against nature with and upon one Frank B. Love, by then

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and there having carnal knowledge of the body of said Frank B. Love, ...”

Whether Frank B. Love was a male or female person is not made to appear other than by the statement that defendant had carnal knowledge of the body of said person, an act which could not have occurred save and except upon the theory that Frank B. Love was a female. Carnal knowledge is defined in Bouvier’s Law Dictionary as sexual connection. This definition is approved in

Commonwealth

v.

Squires,

97 Mass. 61;

Noble

v.

State,

22 Ohio St. 541, and

Maxey

v.

State,

66 Ark. 523, [52 S. W. 2], which hold that carnal knowledge is synonymous with and means sexual intercourse. While, therefore, the indictment accuses defendant of committing the infamous crime against nature, it states facts which preclude the idea of the commission of such crime by showing the act of defendant was sexual connection with Frank B. Love. If, therefore, Frank B. Love was a female, which we must assume, since the contrary does not appear, then the defendant is merely charged with having sexual intercourse with a female, which does not constitute a crime. As said in