Carroll

The information states: “The said John Carroll, on the tenth day of March, A. D. nineteen hundred and four, at the said city and county of San Francisco, state of California, did then and there willfully, unlawfully and feloniously commit the crime against nature with and upon one Frank Derby by then and there having carnal knowledge of the body of said Frank Derby, contrary to the form, etc. ...” Defendant was found “guilty as charged in the information,” and sentenced to a term of seventeen years in the state prison. He now claims that the information does not charge a public offense, and that is the only question that need be considered.

Defendant was prosecuted under section 286 of the Penal Code, which reads as follows: “Every person who is guilty of the infamous crime against nature, committed with mankind or with any animal, is punishable by imprisonment in the state prison not less than five years. ’ ’

The section does not define the crime nor state in what it consists, but denominates it “the infamous crime against nature.”

At common law the crime attempted to be charged was called sodomy. Blackstone speaks of it as the “infamous crime against nature committed with…