Opinion
No. 5652.
Argued October 3, 1967.
Decided November 30, 1967.
1. A motion to quash an indictment under RSA 579:9 charging the respondent with the commission of an unnatural and lascivious act upon a minor female child but alleging conduct which did not involve an "unnatural . . . act" within the meaning of the statutory term or constitute a crime against nature within the common-law definition should be granted.
Indictment under RSA 579:9 charging the defendant with committing an unnatural and lascivious act upon a minor female child eleven years of age. The defendant moved to quash the indictment and the questions thereby presented were reserved and transferred without ruling by the Presiding Justice (Morris, J.).
George S. Pappagianis, Attorney General and Henry F. Spaloss, Assistant Attorney General (Mr. Spaloss orally), for the State.
Cooper, Hall Walker (Mr. Fred W. Hall, Jr. orally), for the defendant.
RSA 579:9 proscribes "any unnatural and lascivious act with another person." The defendant's primary contention is that this felony is distinct from "gross lewdness or lascivious behavior" a misdemeanor (see RSA 579:3; State v. Smith, 98 N.H. 149, 150); and that the offense with which he is charged is not sodomy or a "crime against nature" in violation of RSA 579:9, supra. In essence he argues that the offense charged does not involve "sexual relations . . . in an unnatural manner" as required by section 9.
A similar contention was made, although with respect to different facts, in State v. Vredenburg, 91 N.H. 372. It was there pointed out that the statute (then P.L., c. 386, s. 9) is "construed to be more comprehensive than the common law in the scope of the conduct prohibited." See also, State v. Desilets, 96 N.H. 245.
In the cases last cited, the perverted sex conduct complained of was deemed to be within the purview of the statute. The conduct with which this defendant is charged, was doubtless a misdemeanor under the statute prohibiting gross lewdness or lascivious behavior, RSA 579:3 (State v. Lizotte, 101 N.H. 494) and "in deviation of accepted customs and manners." Jacquith v. Commonwealth, 331 Mass. 439, 442. However it does not fall within the class of offenses charged in Vredenburg and Desilets, supra (see Briefs Cases, Nos. 3237 and 3915), and was not within the statutory term of an "unnatural . . . act," or the common-law definition of the crime against nature. See 2 Wharton's, Criminal Law and Procedure (12th ed.), ss. 751, 752; 3 Burdick, Law of Crime, ss. 876-878.
It follows that the motion to quash should be granted.
Remanded.
GRIMES, J., did not sit.