Opinion
No. 28,969.
Filed April 24, 1953.
CRIMINAL LAW — Sodomy — Indictment and Affidavit — Sufficiency of. — An affidavit for sodomy which does not aver commission of alleged act "with mankind or beast" is insufficient and it was error to overrule a motion to quash the affidavit. p. 236.
From the St. Joseph Probate Court, John S. Gonas, Judge.
Appellant, William Baumgartner, was charged by affidavit with crime of sodomy. A motion to quash the affidavit was overruled.
Reversed.
Scheer, Scheer Ettl and Harry S. Taylor, all of South Bend, for appellant.
J. Emmett McManamon, former Attorney General, William T. McClain, Deputy Attorney General, for appellee.
The charge is sodomy. Appellant contends that the affidavit is insufficient because it does not aver the commission of the alleged act "with mankind or beast," as the statute requires. Section 10-4221, Burns' 1942 Replacement. The Attorney General of Indiana has filed a brief in which he agrees with appellant, and states that he feels this constitutes reversible error.
We have examined the affidavit and the statute. We find the appellant and the Attorney General correct.
Judgment reversed, with instructions to sustain appellant's motion to quash the affidavit.
NOTE. — Reported in 111 N.E.2d 727.