Opinion
38849.
DECIDED MAY 17, 1961.
Sodomy. Bibb Superior Court. Before Judge Anderson.
W. E. Mull, O. L. Crumbley, for plaintiff in error.
William M. West, Solicitor-General, Jack J. Gautier, contra.
The verdict being authorized by the evidence, the court did not err in denying the motion for new trial.
DECIDED MAY 17, 1961.
John H. Beckham was indicted in Bibb County for the offense of sodomy. He entered a plea of not guilty and on May 31, 1960, was tried by the court without a jury, found guilty and sentenced to serve from two to five years in the penitentiary. The defendant excepted to the order of the court overruling his motion for new trial on the general grounds, bringing the case to this court for review.
The State offered evidence by the two arresting officers as follows: That around 9 on the night of March 1, 1960, they were patrolling in the Camp Wheeler area of Bibb County when they came upon an automobile parked on an old barracks road approximately 250 yards off Chesney Road; that as they approached this vehicle "two heads popped up" from the front seat of the car; that both officers then approached the vehicle and found two negro males on the front seat; that the defendant Beckham's pants were lowered to around his knees and the younger negro's pants were unbuttoned and the zipper loose; that both the men were trying to get their clothes back on as the officers approached; that upon being questioned at the time and place they said they were just sitting there and upon further questioning at the same time the younger negro admitted that he and the defendant had been engaged in a sodomy intercourse per anus; that one of the officers then asked the defendant Beckham "Is that right?", to which Beckham replied, "Yes, sir, that's right, that's what us was doing." Later that night the defendant Beckham wrote and signed a confession stating that he and his companion had engaged in abnormal sex relations in the manner charged in the indictment. The defendant offered no evidence.
The only question here involved is whether or not there is sufficient evidence to support the verdict of guilty. Sodomy is defined as ". . . the carnal knowledge and connection against the order of nature, by man with man, or in the same unnatural manner with woman." Code § 26-5901. "The carnal knowledge necessary to constitute this offense (sodomy) is the same that is required in the case of rape. In this offense, as in rape, the crime is complete on proof of penetration. . . And `a conviction of sodomy cannot be sustained, the evidence not showing penetration.'" Wharton v. State, 58 Ga. App. 439 ( 198 S.E. 823). The defendant here contends that the State has not proved penetration and thus failed to prove the corpus delicti of this crime. It will be noted that the State's proof of the corpus delicti consists of circumstantial evidence, statement made as part of the res gestae, and the defendant's confession. The confession offered by the State, and unchallenged by the defendant, admits the essential elements of the crime, including the penetration into the rectum of the defendant. Such a confession is direct evidence. The statement of the other party at or near the time of the act, made in the presence of the defendant and acknowledged as true by him at such time, together with the physical facts sworn to by the officers, offers ample corroboration of the defendant's confession. The corpus delicti may be established by circumstantial evidence. Sutton v. State, 17 Ga. App. 713, 714 ( 88 S.E. 122); Underwood v. State, 51 Ga. App. 735, 736 ( 181 S.E. 500); McVeigh v. State, 205 Ga. 326 ( 53 S.E.2d 462). "The law does not require that the corpus delicti be proved beyond a reasonable doubt by independent evidence as a condition precedent to the consideration by the jury of a confession, but the confession itself may legally and properly be considered as a part of the proof of the corpus delicti." Logue v. State, 198 Ga. 672 ( 32 S.E.2d 397).
The verdict being authorized by the evidence, the court did not err in denying the motion for new trial.
Judgment affirmed. Townsend, P. J., and Frankum, J., concur.