Thomas E. Kepner, for Petitioner.
Geo. B. Thatcher, Attorney-General, E. T. Patrick, Deputy Attorney-General, and William Woodburn, Jr., District Attorney, for Respondent.
By the Court, McCarran, J.:
This is an original proceeding in habeas corpus. The
petitioner, Frank Benites, as is related in the petition, is now held by A. A. Burke, sheriff of Washoe County, by reason of an information filed against petitioner by the district attorney of Washoe County, which information is as follows: William Woodburn, Jr., district attorney in and for the county of Washoe, in the name and by the authority of the State of Nevada, informs the above-entitled court that Frank Benites, the defendant above named, has committed a felony, to wit, the infamous crime against nature, in the following manner: That said defendant, on the 3d day of March, A. D. 1914, or thereabouts, and before the filing of this information, at and within the county of Washoe, State of Nevada, did then and there wilfully, unlawfully, and feloniously commit the infamous crime against nature with and upon one, * * * a male human being, then and there being, by then and there inserting and placing his penis in the mouth of the said. * * * All of which is contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Nevada.
It is the contention of counsel for petitioner that the information in this case fails to state facts sufficient to constitute a public offense under the statutes of Nevada. The statute applicable to this offense, and the only statute in this state that has any bearing upon this offense, is as follows: The infamous crime against nature, either with man or beast, shall subject the offender to be punished by imprisonment in the state prison for a term not less than five years, and which may extend to life. (Section 6459, Revised Laws.)
It is the contention of petitioner that the infamous crime against nature is synonymous with sodomy as that crime was known and construed under the common law. In our judgment it is scarcely necessary to determine whether or not the term infamous crime against nature is of similar import or significance to the crime which, under the common law, was designated sodomy. In 1 Hawkins's Pleas of the Crown, p. 357, speaking of the
crime of sodomy, it is stated: All unnatural carnal copulation, whether with man or beast, seems to come under the notion of sodomy, which was felony by the ancient common law, and punished according to some authors with burning, according to others with burning alive.
It must be observed in this respect that, even in the time in which this authority wrote, all unnatural carnal copulations were embraced within the term and generally understood to be sodomy.
 It is unnecessary in our judgment to determine whether or not our legislature, in enacting the section above quoted, had in mind the common-law crime of sodomy. It is sufficient, we believe, to say that the infamous crime against nature as mentioned by our statute should be no less in its scope that that which was understood to be within the crime of sodomy as designated by Hawkins in his Pleas of the Crown, wherein he states, All unnatural carnal copulation seems to come under the notion of sodomy.
If our statute specifically mentioned or designated the crime sought to be reached as sodomy, perhaps we would be bound by the understanding of the crime as described by that word, or as that crime was construed in the earlier decisions. It must be observed, however, that the statute did not limit or define the crime which it sought to punish by designating it as sodomy, but rather sought to cover the entire field of unnatural acts of carnal copulation. In other words, it is our judgment that section 6459 of our Revised Laws seeks to define and punish acts of unnatural copulation in whatsoever form those acts may be perpetrated, and without regard to the means or manner of perpetration.
Nature has provided in the male and female the organs for the reproduction of the species. Any copulation by male with male, or by male with female, other than that copulation by and through the organs provided by nature for the reproduction of the species, is an act ...