Opinion
No. 6246.
Decided April 28, 1972.
1. An attempt to commit the common-law crime of sodomy is within the scope of the "unnatural and lascivious" acts prohibited by RSA 579:9.
Warren B. Rudman, attorney general, and Robert V. Johnson II, assistant attorney general (Mr. Johnson orally), for the State.
Fisher, Parsons, Moran Temple, by brief, for the defendant.
Defendant was indicted for having committed an "unnatural and lascivious act", a felony under RSA 579:9. Defendant moved to dismiss on the ground that the acts alleged do not constitute the offense charged. His motion was denied by Loughlin, J., who transferred defendant's exceptions. We uphold the ruling of the trial court.
The conduct alleged would constitute an attempt to commit the common-law crime of sodomy on another male. Defendant argues that since the common-law crime was not completed it cannot be both an "unnatural and lascivious" act. But RSA 579:9 has been held to be more comprehensive in scope than the conduct prohibited by the common-law crime of sodomy. State v. Desilets, 96 N.H. 245, 73 A.2d 800 (1950); State v. Vredenburg, 91 N.H. 372, 19 A.2d 414 (1941); State v. Wickey, 108 N.H. 336, 235 A.2d 527 (1967). We hold that the attempt here alleged is embraced within the scope of the prohibited acts, it being both "unnatural and lascivious". We hold that the conduct alleged in the indictment is within the prohibition of RSA 579:9.
Defendant's exception overruled; remanded.