The confusion heretofore existing in reference to the term sodomy, and its actual meaning, has occasioned more than one lapse of justice. The difficulty of sustaining criminal action on an ambiguously worded bill of indictment will be readily apparent to every legal practitioner; a typical instance being furnished in the English case, Reg. v. Brown, 24, Q. B. D. 357. Here the charge was sodomy—sexual intercourse with an animal—the "animal" used being a duck.1 Counsel for the defendant argued, very correctly, according to previous rulings, that a duck was not an animal within the meaning of the law; resulting in a handing up of the cause to the Court for Crown Cases, and a consequent delay of several months in the proceedings. The matter will be better understood when we bear in mind that, in England, a fowl is not a beast, within the common-law definition; but the learned judge of the Crown Court, taking the very proper position that a fowl, when used for such a purpose, must be regarded as an animal, within the meaning of the statute, and that sodomy may be committed even with a bird, a tardy conviction finally resulted.
Owing to the same vagueness of significance as to the term, sodomy, on which the bills of indictment were framed, instead of the absolutely correct term, orastupration, it was quite recently held in a Texas court, as well as in an earlier English one, that sodomy had not been committed where the defendant had used the pathic's mouth;* which, as a matter of fact, is true; although, with a strange love for the ambiguous, the laws of most of our States persist in defining such acts as sodomy, whether birds, beasts or fishes be used, and whether the defendant, in such a case as the above, "be or be not the pathic."1
1 Sodomy, it will be remembered, even in its suppositious sense, is the crime of human pederasty—intercourse by the rectum—and birds and beasts can have no part whatever in it.