People v. Miller

PLUMMER, J.

On the twenty-sixth day of November, 1923, the defendant and appellant was found guilty of the infamous crime against nature, as charged in the information, and from the sentence and judgment pronounced thereupon the defendant appeals.

The information charges the defendant as follows: “That on the- day of September, 1923, and within the limits of the City of Sacramento, in the State of California, the said defendant Bud Miller, did then and there, before the filing of this complaint, and within one year prior thereto, willfully and unlawfully and feloniously and carnally, upon the person of one Parley Sheya then and there being, make an assault with the intent then and there feloniously and carnally upon the person of said Parley Sheya, to commit the infamous crime against nature, the said Parley Sheya being then and there a male person, contrary to the form, force and effect of the statute of said state in such case made and provided,” etc.

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The defendant asks a reversal of said judgment upon two grounds—first, insufficiency of the testimony to warrant the verdict; secondly, that the court erred in refusing to instruct the jury as requested by the defendant.

The testimony in the case is so utterly revolting that we shall not attempt to state it in detail. Suffice to say that it shows every element of the crime charged in the information. It shows that the defendant and one Sheya, upon whom the assault was made, and a witness by the name of Stenzel, were in a room at the Pacific Hotel in the city of Sacramento; that all of the persons in the room had been drinking more or less; that Sheya and Stenzel appear to have been very good friends; that Stenzel took Sheya to the room in the hotel mentioned and put Sheya to bed; that Sheya, at the time of being put to bed, was more or less under the influence of liquor and more or less helpless; that after Sheya had been put to bed the defendant Bud Miller began acting in such a manner as to alarm Stenzel; that Stenzel became so impressed with the idea that Miller was about to attempt the act with which he is charged that he (Stenzel) left the room and went for an officer; that upon the return of the officer, the door of the room was found closed and the officer looked over the transom, and his version of what he saw is as follows: “I stood up on the table, then I was enabled to look over the transom, a glass transom over the top of the door, and this young gentleman here, Sheya, and the defendant were both absolutely naked, both on the bed, Miller was sitting on his knees, with his back to the transom, and Sheya was resting with his head and shoulders on the bed, and his feet almost straight in the air—Miller had his arms underneath his back, the small of Sheya’s back, pulling him up close; Sheya originally had been on his back, but pulled so close his feet were standing right up, and Sheya was crying, kind of whining and crying and pleading with Miller to leave him alone, and Miller kept repeating, ‘Come on, put it up, put it up,’ and Sheya kept pleading, ‘No, leave me go,’ and whining and crying, and Miller kept repeating, ‘Put it up’; . . . suddenly Miller became furious evidently, and jumped out of bed and went to the window where his pants were hanging, and took a pocket-knife out of his pants, then turned, I think, and faced the door, and opening the knife he said,—it was partly to