On certification from the Superior Court of the County of Maricopa. Arthur T. LaPrade, Judge. Questions (two) answered.
Mr. Richard F. Harless, County Attorney, and Mr. Darrell R. Parker, Deputy County Attorney, for Plaintiff.
Mr. Paul M. Roca, for Defendant.
[59 Ariz. 46] ROSS, J.
The sufficiency of the information being raised in the Superior Court of Maricopa County where the matter is pending, the cause, with the consent of defendant's counsel, was certified to this court for a pre-trial determination of the following questions:
"1. Does the information as amended and amplified by the Bill of Particulars filed herein charge the defendant with the commission of a public offense under the laws of the State of Arizona, and if so, what offense?
"2. Is Section 43-406, Arizona Code Annotated, 1939, violative of any of the provisions of the Constitution of the State of Arizona or of the Constitution of the United States?
The information charges the defendant with "the infamous crime against nature," in that on or about December 31, 1941, he feloniously violated section 43-406, Arizona Code 1939, "by an act of sexual intercourse with a beast, to-wit: a Holstein cow."
The section of the statute referred to in the information reads:
"43-406. Sodomy. -- Any person who shall commit sodomy, or the crime against nature, with mankind or beast, shall be punished by imprisonment in the state prison not more than five (5) years nor less than one (1) year. Said crime may be committed by the penetration of the mouth or rectum of any human being by the organ of any male person;
proof of emission shall not be required, and any sexual penetration, however slight, shall be sufficient."
This reference in the information to the statute for a description of the offense charged is permissible under the statute. Subdivision (2), section 44-711. If, therefore, the statute states an offense, the information, being in the language of the statute, is good. [59 Ariz. 47]
Under the statute the offense as between human beings may be committed in either the mouth or rectum, because such acts are against nature. As between a human being and a ...