Petition for Writ of Certiorari — Carter v. Arkansas

iii: MON eae ee ee

PRrac— ~ ;

RRA = “OURT, U. 3.

cs

MICKATL!

\b iene ]

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1973

CLAUDE S. CARTER, JR., and THOMAS C. BURKHEAD,

Petitioners,

v

STATE OF ARKANSAS,

Respondent.

PETITION FOR WRIT OF CERTIORARI

Te the Supreme Court of Arkansas

JACK L. LESSENBERRY

803 West Third Street

Little Rock, Arkansas 72201

RICHARD S. ARNOLD

507 Hickory Street

Texarkana, Arkansas 75501

JIM HOOPER

406 Texas Boulevard

Texarkana, Texas 75501

Attorneys for Petitioners

St. Louis Law Printing Co.. Inc., 812 Olive Street 63101 314-231-4477

=>

INDEX

Page

ae acd ee Re KG a eka ka eas sa S08 ]

I ere ae ee ee ea as aaa Ria Gh wade ae 2

or ee ao OG oe Bh gia Wish Wo 2

Statutes and Constitutional Provisions Involved ........ 2

I ge oa cc bre ee Sa kd oe ew 58m 3

Reasons for Granting the Wet . . ..........-- 2222s, 5

Se gee eins aww Ok ace we o 12

Appendix

Opinion and Judgment of the Supreme Court of

re teed alge aii bai dain kw os ae A-l

Ooder Demying Rehearing .............-.-----.;.; A-12

CITATIONS

Cases

Acanfora v. Board of Education, 359 F. Supp. 843 (D.

EE ees Ou on ca peck kan oe eae ee ke 9

Connor v. State, 253 Ark. 854, 490 S.W.2d 114, appeal

dismissed for want of a substantial federal question, 42

U.S.L. Week 3269 (U.S. November 5, 1973) (No. 72-

earn a ete cbs val a Oak ame aa oe 5-6

SP EE A Pe, FES EN ie ce

ii

Holt v. Hutto, 363 F. Supp. 194 (E.D. Ark. 1973) ..... 10

Holt v. Sarver, 442 F.2d 304 (8th Cir. 1971), affirming

200 F. Supe. 362 GED. Agk. W97O) .... 2 2 ccecees 10

Neusser v. Utes, 333 U.S. BS CI9GB) .. 2. ccc ccc ncus 7

Norton v. Macy, 417 F.2d 1161 (D.C. Cir. 1969) ...... 9

Olmstead v. United States, 277 U.S. 438 (1928) ........ 8

| O’Neil v. Vermont, 144 U.S. 323 (1892) ............. 11

E Raley v. Ohio, 360 U.S. 423 (1959) ................. 7

: Ricks v. District of Columbia, 414 F.2d 1097 (D.C. Cir.

I a cn ot a arr re a nek tn ay ae 8

mone wv. Was, SOR ULE. FED CIR Gee on aw vc ccc ecw scses 8

) Stone v. Wainwright, 42 U.S.L. Week 3267 (U.S. Novem-

ber 5, 1973) (No. 73-122), reversing 478 F.2d 390 (5th

SO Sos cee ewnks boxe akede ee cues 6

Weems v. United States, 217 U.S. 349 (1910) ......... 11

Statutes and Other Materials

: a ee ie See 6c kk aa hs eae e eek nese nn 2, 3, 6

Se a | rr re erirarie 3,5

i a Pi Ce oc iss cack aca sbaseanaee es 10

@ Ark. Stat. Ann. §§ 41-2228, 41-2229 ............... 10

/ United States Constitution:

_ Amendment | eee rrr errr ere ter oa

od ae a acd oe eR ae 7,4

iit tis Eien, Ce 1D =. ose: 9

Ee RS ECR LE Ae eR SR RE ARO IE RET OTTTNSOT

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1973

CLAUDE S. CARTER, JR., and THOMAS C. BURKHEAD,

Petitioners,

V

STATE OF ARKANSAS,

Respondent.

PETITION FOR WRIT OF CERTIORARI

To the Supreme Court of Arkansas

Petitioners Claude S. Carter, Jr., and Thomas C. Burkhead

respectfully pray that a Writ of Certiorari issue to review the

Judgment and Opinion of the Supreme Court of Arkansas in

this proceeding, which Judgment became final on November

13, 1973.

OPINION BELOW

The Opinion of the Supreme Court of Arkansas appears in

the Appendix hereto. It is reported at 255 Ark. 225, 500

S.W.2d 368.

JURISDICTION

The Judgment of the Supreme Court of Arkansas was entered

on October 8, 1973. It became final on November 13, 1973,

when petitioners’ timely Petition for Rehearing was denied.

This Petition for Certiorari was filed within 90 days of the

latter date. This Court has jurisdiction under 28 U.S.C.

§$ 1257(3).

QUESTIONS PRESENTED

1. Whether Section 4 of the Act of the General Assembly

of Arkansas adopted December 17, 1838, as amended, which,

as construed by the Supreme Court of Arkansas, makes

criminal any “unnatural” sex act, is unconstitutionally vague.

2. Whether criminal conviction of these two petitioners, both

of whom are adults, for engaging in sexual relations with one

another in private, violates their constitutional right of privacy.

3. Whether imprisonment for eight years in the Arkansas

State Penitentiary, at which the Federal Courts have recently

found homosexual attacks to be prevalent, is, under the cir-

cumstances of this case, a cruel and unusual punishment in

violation of the Fourteenth Amendment.

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED

Section 4 of the Act of the General Assembly of Arkansas

adopted December 17, 1838, as amended by Section 1 of Act

128 of 1955, now codified as Ark. Stat. Ann. § 41-813, reads

as follows:

OEE LS BR eM A be a pedile. PR: hago. Jhb ny AEROS BEER Bae Pid at

A BRS LT OT NSEN fz RE MD OE PEPSI" MEP MNES.

Every person convicted of sodomy, or buggery shall be

imprisoned in the penitentiary for a period of not less than

one (1) nor more than twenty-one (21) years.

Section 163 of Chapter 45 of the Revised Statutes of

Arkansas of 1838, now codified as Ark. Stat. Ann. § 41-814,

reads as follows:

Proof of actual penetration into the body shall be suf-

ficient to sustain an indictment for the crime against

nature.

Section | of the Fourteenth Amendment to = Constitution

of the United States provides, in pertinent part

Nor shall any State deprive any person of life, liberty, or

property, without due process of law. .. .

STATEMENT OF THE CASE

Petitioners were arrested by two sheriffs’ deputies at about

11:00 o'clock on the night of September 27, 1972. The arrest

took place at a camping ground owned and maintained by the

State of Arkansas for the convenience of tourists and located

near Interstate Highway 30 in Miller County, Arkansas. Peti-

tioners were in the front seat of an automobile owned by the

petitioner Carter. Although four other cars and one or two

“campers” were parked in the same general area, there was no

evidence that anyone, other than the two deputies who were

the State’s only witnesses, took any notice of petitioners. After

the arrest, petitioners were charged with violation of Ark. Stat.

Ann. § 41-813, which imposes a penalty of from one to 21

years’ imprisonment for “sodomy, or buggery.” There is no

statutory definition of this crime.

This is only one of four criminal proceedings brought against

petitioner Carter at approximately the same time. He has also

LAE G90

Pate et

ra

a es

been charged with the misdemeanor of making a threatening

telephone call. This charge was tried in the Municipal Court

of Texarkana, Arkansas, and resulted in a conviction and

sentence of one year’s imprisonment. Petitioner Carter’s ap-

peal from this conviction is now pending in the Circuit Court

of Miller County, Arkansas. A charge of contempt of court,

arising out of the same situation that gave rise to the charge

of making the threatening telephone call, has also been lodged

against petitioner Carter in the Circuit Court of Miller County,

Arkansas. This charge is still pending and has not been tried.

After his testimony in the same trial court in the instant case,

petitioner Carter was also charged with perjury. The trial of

this charge resulted in a directed verdict of acquittal.

The instant case was tried in the Circuit Court of Miller

County, Arkansas, on February 19, 1973, before a jury. Be-

fore the trial, petitioners raised by Motion to Dismiss the In-

formation the contentions that the statute under which they

were charged was unconstitutionally vague and infringed their

ederal constitutional right of privacy. R. 13, 14. This Motion

was overruled on its merits. R. 32, 33. At the close of the

trial, the Motion to Dismiss was renewed, R. 145, and-was

again overruled on its merits. /bid. With respect to the defini-

tion of the crime for which petitioners were being tried, the trial

court instructed the jury as follows (R. 150):

Sodomy is the unnatural sex act by human beings with

each other, or by a human with an animal.

After deliberation, the jury returned a verdict of guilty and

fixed petitioners’ punishment at eight years in the Arkansas

State Penitentiary. (Under Arkansas law, the jury fixes the

punishment.) On appeal to the Supreme Court of Arkansas,

petitioners again raised the Federal issues of vagueness and right

of privacy. In addition, they contended that the sentence of

eight years was so disproportionate to the nature of the offense

Wg SI A ALS IN I 2 PLC PT HSN TE ED

charged as to constitute cruel and unusual punishment in viola-

tion of the Eighth and Fourteenth Amendments to the Con-

stitution of the United States. On October 8, 1973, the Su-

preme Court of Arkansas affirmed the conviction and sentence,

rejecting petitioners’ Federal claims on their merits. A timely

Petition for Rehearing was denied on November 13, 1973, and

this Petition for Certiorari followed.

REASONS FOR GRANTING THE WRIT

1. The crime of which petitioners have been convicted was

first prohibited by statute in Arkansas by Section 4 of the Act

of December 17, 1838. This statute provided that the punish-

ment for the crime of “sodomy, or buggery” would be not less

than five or more than 21 years’ imprisonment. At about the

same time, the Arkansas General Assembly adopted Section

163 of Chapter 45 of the Revised Statutes of 1838. This pro-

vision states that penetration into the body is necessary for

conviction of “the crime against nature.” The latter statute has

never been amended and is now codified as Ark. Stat. Ann.

$ 41-814. The former statute, under which petitioners have

been convicted, has been amended only once. Section 1 of Act

128 of 1955 changed the punishment so as to reduce the mini-

mum term from five years to one year. The maximum term

remained fixed at 21 years. According to Section 3 of Act 128

of 1955, the Arkansas General Assembly took this action be-

cause “there appears to be some reluctance on the part of the

juries of this State to convict a person of the crimes of sodomy

and buggery if the minimum sentence is five (5) years. . . .”

There is no statute defining “sodomy, or buggery.” Neither is

there any statute defining “the crime against nature.” The Su-

preme Court of Arkansas, however, has construed these two

statutes so as to furnish a definition. The leading case is Connor

v. State, 253 Ark. 854, 490 S.W.2d 114, appeal dismissed for

ne - 2 on ON ON Re ees SOR,

want of a substantial federal question, 42 U.S.L. Week 3269

(U.S. November 5, 1973) (No. 72-1612). Connor involved an

information charging violation of § 41-813 by the defendant

Connor with a 14-year-old boy. (By contrast, petitioner Carter

was 28 years old at the time of this trial, and petitioner Burg-

head was 51 years old.) The Supreme Court said:

“Whether it is called sodomy, buggery, or crime against

nature—as it is often called interchangeably— it boils down

to a simple definition that it is an unnatural sex act which

is condemned. It is the opposite of a natural sex act; the

manner of a natural sex act is well known, even to the

young and the uneducated.” 253 Ark. at 856, 490 S.W.2d

at 115 (emphasis in original).

Thus, the trial court was being faithful to authoritative de-

cisions of the Supreme Court of Arkansas when it told the jury

in the instant case that “sodomy is the unnatural sex act by

human beings with each other, or by a human with an animal.”

The key word in the definition, of course, is “unnaural.” The

Supreme Court of Arkansas has defined this term as “the op-

posite of . . . natural,” and has gone on to observe, as_just

noted, that “the manner of a natural sex act is well known .. .”

Accordingly, under the well-established doctrine that a statute

carries with it the construction of the highest Court of the State,

petitioners here stand convicted, in effect, of committing “an

unnatural sex act.”

The issue is simply whether the words “natural” and “un-

natural” are precise enough to justify the imposition of criminal

punishment. The cases in this Court and in the lower courts

dealing with this type of issue are legion. One of the most recent

cases is the per curiam opinion of this Court in Stone v. Wain-

wright, 42 U.S.L. Week 3267 (U.S. November 5, 1973) (No.

73-122), reversing 478 F.2d 390 (Sth Cir. 1973). There, a

Florida statute prohibiting “the abominable and detestable

a =: ee Cie aE

ns Oa

crime against nature” was held not to be unconstitutionally

vague. The basis of the decision, however, was that previous

opinions of the Supreme Court of Florida had made it clear that

the acts charged came within the statute. Here, unlike Stone,

both the most recent pronouncement of the Supreme Court of

Arkansas, and the definition of the crime given the jury by

the trial court, left the matter completely at large. The jury

were advised that they were free to convict petitioners, indeed,

that they had a duty to do so, if they found that an “unnatural

sex act” had been committed. No guidance was given as to

what “natural” or “unnatural” might mean.

As this Court observed in Raley v. Ohio, 360 U.S. 423, 438

(1959), “a State may not issue commands to its citizens, under

criminal sanctions, in lanugage so vague and undefined as to

afford no fair warning of what conduct might transgress them.”

A similar issue was discussed, though not decided on its merits,

in Musser v. Utah, 333 U.S. 95 (1948). The Utah statute in-

volved there made it a crime to conspire “to commit any act

injurious to . . . public morals.” The Court said, in words that

could well be applied to the instant case, “standing by itself

[this statute] ... would seem to be warrant for conviction for

agreement to do almost any act which a judge and jury might

find at the moment contrary to his or its notions for what was

good for health, morals, trade, commerce, justice, or order.”

333 U.S. at 97. Similarly, the Arkansas statute involved here is

warrant for conviction for doing almost any act which a judge

and jury might find at the moment “unnatural.” Even if pe-

titioners were caught in the act of fellatio, as the police officers

testified, and even if, contrary to the argument advanced later

in this Petition, the State has power to prohibit such an act in

private between consenting adults, petitioners and the public

at large are entitled to a clearer warning that their conduct

can send them to the penitentiary for as long as twenty-one

years.

’ caeadeaniniadaal

2. In Roe v. Wade, 410 U.S. 113, 152-55 (1973), this Court

made clear that the Fourteenth Amendment does create a Fed-

eral constitutional right of privacy protected against infringement

by the States except on the basis of a compelling State interest.

There are, in other words, certain things that people may do to or

for themselves that the State may not make criminal, no matter

how repulsive these acts may seem to a majority of the citizenry.

In Roe, it was held that a State may not protect a potential hu-

man life against the decision of the mother to destroy it by

abortion. A woman, the Court seemed to say, is the mistress of

her own body and may do as she pleases with it, even though

other persons or potential persons (the father and the fetus)

may be adversely affected. The Court appears to have adopted

as law the famous pronouncement of Mr. Justice Brandeis, dis-

senting, in Olmstead v. United States, 277 U.S. 438, 478 (1928),

that “the right to be let alone” is “the most comprehensive of

rights and the right most valued by civilized men.”

The instant case is a fortiori from Roe. Here, no one’s in-

terests were involved other than those of the petitioner’s them-

selves. Assuming, in accordance with the State’s evidence, that

they were engaged in sexual relations with one another, they

were doing what they wanted to do. They were adults and

sui juris. Neither of them were resisting, and no argument to

that effect has been made. Neither was there any claim made,

or evidence presented, to the effect that any person, other than

the two officers who found what they were looking for, wit-

nessed or was offended by petitioners’ acts.

The engine of criminal justice is a fearsome tool. Imprison-

ment is the harshest penalty known to our law and carries with

it the greatest stigma. This punishment has traditionally been

imposed only for the doing of harm to others. As the United

States Court of Appeals for the District of Columbia Circuit

observed in Ricks v. District of Columbia, 414 F.2d 1097, 1108

(D.C. Cir. 1968): “Definitions of crime traditionally combine a

wrongful intent with a guilty act in a causal relationship to a

—

consummated social harm” (emphasis supplied). It is true that

the land upon which petitioner Carter’s automobile was parked

belonged to the State but the act charged was in no realistic

sense performed “in public”. Petitioners were inside the car,

it was dark, and had the officers not shined their flashlights into -

the front seat, no charge would ever have been brought. Similar

conduct in an automobile on a public street (a less compelling

case than the present one) has been held to be “private conduct”.

Norton v. Macy, 417 F.2d 1161, 1167, n.27 (D.C. Cir. 1969).

The heart of the matter is that what petitioners did, assuming

arguendo that they did what was charged, hurt no one, with the

possible exception of themselves. It has recently been held

that the State of Maryland may not constitutionally exclude

homosexuals per se from employment as teachers. Acanfora v.

Board of Education, 359 F. Supp. 843, 844-53 (D. Md. 1973).

The courts would do well to heed the words of the libertarian

philosopher John Stuart Mill:

. . . The only principle for which power can rightfully be

exercised over any member of a civilized community,

against his will, is to prevent harm to others. His own

good, either physical or moral, is not sufficient warrant.

He cannot rightfully be compelled to do or forebear be-

cause it will be better for him to do so, because it will

make him happier, because, in the opinion of others, to

do so would be wise or even right. These are good reasons

for remonstrating with him, but not for compelling him

or visiting him with any evil in case he do otherwise.

To justify that, the conduct from which it is desired to

deter him must be calculated to produce evil to someone

else. The only part of the conduct of anyone for which he

is amenable to society is that which concerns others. In

the part which merely concerns himself, his independence

is, of right, absolute over himself. Over his own body and

mind, the individual is sovereign.

Mill, On Liberty ch. 1 (1859).

é

=

:

¢

:

a i

3. In any event, eight years in the Arkansas State Peniten-

tiary is more than anyone can or should seek to justify as a

proper punishment for the conduct charged here.

The Arkansas State Penitentiary, it is worth remembering, is

not just any penitentiary. Homosexual assaults and rapes, in

very recent times, have been one of the most prominent charac-

teristics of that penal institution. “Prisoners are frequently at-

tacked and raped in the dormitories and injuries and deaths

have resulted. . . . No adequate means exist to protect the

prisoners from assaults.” Holt v. Sarver, 442 F.2d 304, 308

(8th Cir. 1971), affirming 309 F. Supp. 362, 377 (E.D. Ark.

1970). It is true that conditions have improved somewhat, and

“the prison is not what it was in former days”; still, as recently

as August of 1973, the United States District Court for the

Eastern District of Arkansas found that “inmate assaults on

other inmates . . . still occur . . .” Holt v. Hutto, 363 F.

Supp. 194, 199 (E.D. Ark. 1973).

The incongruity and barbarity of what the State of Arkansas

proposes to do to petitioners is even more glaring when the

penalty visited upon them is compared with the penalty imposed

by the General Assembly for other crimes. For example, the

maximum punishment for murder in the second degree is 21

years in the penitentiary, the same as the maximum punishment

for the crime for which petitioners have been convicted. Ark.

Stat. Ann. §41-2228. Even more startling, the maximum pun-

ishment for voluntary manslaughter is seven years. Ark. Stat.

Ann. §41-2229. Arkansas defines voluntary manslaughter, in

a manner similar to that of the traditional common law, as a

voluntary killing, upon a sudden heat of passion, caused by a

provocation apparently sufficient to make the passion irresist-

able. Ark. Stat. Ann. §41-2208. Thus, if petitioners had

voluntarily killed another human being, under circumstances

deemed by a jury to constitute sufficient provocation, thev

could have been sentenced to seven years in the penitentiary at

ee ee

most. The punishment actually imposed upon them in this case

is one year more. There is no rational justification for such a

distinction.

In other words, the penalty imposed, under the circumstances

of this case, having in mind the nature of the act charged (chat

it harmed no one but the petitioners themselves), the nature of

the institution where the sentence is to be served, and the

nature of the punishment deemed appropriate by the General

Assembly of Arkansas for the voluntary taking of a human life,

is simply so disproportionate as to constitute a cruel and un-

usual punishment. It is one of those “punishments which by

their excessive length or severity are greatly disproportioned to

the offenses charged,” Weems v. United States, 217 U.S. 349,

371 (1910), quoting with apparent approval the dissenting

opinion of Mr. Justice Field in O’Neil v. Vermont, 144 U.S.

323, 329-30 (1892). Furthermore, even if the definition of

“unnatural” is thought to be sufficiently clear to avoid the diffi-

culty of unconstitutional vagueness, no one could deny that the

jury here had broad latitude to convict or acquit depending

upon their own views of what is “natural” or not. They also had

broad latitude, stretching from one year to 21, in determining

the punishment. There was wide scope for arbitrary and sub-

jective judgment—precisely the situation in which the danger

of cruel and unusual punishment is particularly great. Cf.

Furman v. Georgia, 408 U.S. 238, 280, 282 (1972) (Brennan,

J., concurring).

5

|

=

Fy

:

Berseesrs eyecare mengeenc ace tin

—

CONCLUSION

The Writ of Certiorari should be granted to review the Judg-

ment of the Supreme Court of Arkansas. On plenary considera-

tion, that Judgment should be reversed and the cause remanded

with directions to dismiss the information.

Respectfully submitted

JACK L. LESSENBERRY

803 West Third Street

Little Rock. Arkansas 72201

RICHARD S. ARNOLD

507 Hickory Street

Texarkana, Arkansas 75501

JIM HOOPER

406 Texas Boulevard

Texarkana, Texas 75501 -

Attorneys for Petitioners

‘ +)

Wey e. PR mares erry Ty, 4 fig ‘

PENCE cerns cnr tA eT

a ee

Supreme Court of Arkansas

Claude S. “Sandy” Carter, Jr., and

Thomas C. Burkhead,

Appellants,

v. No. CR 73-82

State of Arkansas, J

Appellee.

Opinion Delivered October 8, 1973

Appeal from Miller Circuit Court; John W. Goodson, Judge

Affirmed.

John A. Fogleman, Justice

Appellants Carter and Burkhead were found guilty of

sodomy, alleged to have occurred shortly after 11:00 p-m. in

Carter’s automobile which was parked at the public rest and

tourist information facility adjacent to Interstate Highway 70,

where other parties had parked trucks, automobiles and camp-

ers. Appellants admit the evidence is sufficient to sustain

it while Patrolling the area, that he vomited thrice during the

€vening—the first time as an immediate reaction to his seeing

what was taking Place in the automobile, and the others while

appellants were in custody and being “booked.” Although both

appellants flatly denied that they had engaged in the homo-

sexual act related by the police officers, they contend that even

if they had done it, the state’s evidence only shows a con-

sensual act in which two adult Persons engaged. They were

— < pe

charged in the information on which they were tried with

voluntary participation in an unnatural sex act in violation of

Ark. Stat. Ann. § 41-813 (Repl. 1964).

The principal ground for reversal is that: the statute itself

is an invasion of their right to privacy, which they allege to be

protected by the First, Fifth, Sixth, Ninth and Fourteenth

Amendments to the United States Constitution; the statute is

so vague and ambiguous as to deprive them of rights guaran-

teed by the state and federal constitutions; the application of

the statute to them serves no legitimate state interest and that

enforcement of the statute constitutes cruel and unusual punish-

ment. Appellants introduce their argument with a statement

that they do not suggest the statute be declared unconstitutional

in every application. They contend it is “only unconstitution-

ally overbroad as applied to consenting adults because all per-

sons who engage in acts of sodomy are subject to prosecution

under the terms of the statute, including husband and wife,

consenting adults of the opposite sex, or consenting adults of

the same sex, regardless of whether the act is committed in

public or in private.”

The very strong presumption of constitutionality attendant

upon every statute, requiring that all doubt be resolved in favor

of constitutionality, is enhanced by the highly persuasive fact

that the statute was long unassailed. See Stone v. State, 254

Ark. ... (July 23, 1973); 494 S.W.2d 715; Williams v. State,

253 Ark. ... (February 12, 1973), 490 S.W.2d 217; Poole v.

State, 244 Ark. 1222, 428 S.W.2d 628. As we said in Wil-

liams, if such a statute were in violation of federal constitutional

principles, surely the thought would have long since occurred

to the many legal scholars and jurists of this state. Appellants

have not, by their multifaceted attack, met their very heavy

burden of showing that this statute is unconstitutional.

We recently had occasion to consider and reject an attack

on the constitutionality of this same statute in Connor v. State,

a on

253 Ark. — (January 29, 1973), 490 S.W.2d 114. We do not

agree with appellants that the difference in the two cases is suf-

ficient to justify a re-examination of our holding there. We will

turn our attention to arguments asserted as new and to alleged

distinctions. Appellants allege a minor was involved and consent

was not established in Connor. No point was made of the

participation of the minor in reaching our conclusion in Connor.

The mere fact that a participant is a minor does not prevent

his consenting to the act. See Strum v. State, 168 Ark. 1012,

272 S.W. 359.

We can reject all cases cited by appellants relating to acts

committed in private out of hand. No such act is involved

here, in spite of a rather frail argument that the act, if com-

mitted, was done in the privacy of Carter's automobile in a

secluded area of a roadside park. In our opinion, the record

simply does not support the idea that the act was committed

in private or in a rather remote area of the roadside park. Offi-

cer Phillips testified that the area was well lighted, and it was

unnecessary for one to use a flashlight to observe people in the

cars. The area is only 120 to 140 yards off the main inter-

state highway. It is approximately 40 to 60 yards wide. Burk-

head described the area as quite crowded. He said there were

a lot of people around and that some of the many cars parked

in the area were near the Carter automobile. No greater degree

of privacy than that shown in Connor can be said to have ex-

isted here.

We can just as readily dismiss those cases based on conduct

between married persons and those rendered in jurisdictions

where a “non-criminal physical relationship of homosexual na-

ture” was involved. We do not find anything in citations to

various “sex manuals” (even though they may have been best

sellers) to be of such compelling force or effect that we may

take judicial notice of the supposed data, arguments and rec-

ommendations of the authors, the expertise of some of whom

LP, TIE Sry 29 eam

— oe

is at least questionable. We likewise find nothing which per-

suades us that the Connor decision was wrong. If the legisla-

tive branch should, in the exercise of its investigative powers,

find these works credible considering statutory revision, we

would acknowledge not only that the matter is, but that it

should be, within its province. See People v. Hurd, 5 Cal. App.

3d 865, 85 Cal. Rptr. 718 (1970); People v. Ragsdale, 177

Cal. App. 2d 676, 2 Cal. Rptr. 640 (1960); People v. Massey,

137 Cal. App. 2d 623, 290 P.2d 906 (1955).

In some mystical manner, appellants have woven together

various unrelated decisions as support for their argument that

the statute is an overbroad invasion of their right to privacy.

These decisions all struck down some act as unconstitutional,

and include those having to do with the education of children,

compulsory sexual sterilization of habitual criminal offenders,

interracial marriage and sexual relations, access to contracep-

tion information, private possession of obscene materials, and

abortions. As we understand appellants’ argument, these cases

lend support to their position because they demonstrate that

the expansion of the “right to privacy in matters of intimate

personal preference” is based upon the courts’ having taken

cognizance of dramatic changes in social conditions which

have made legal doctrines once appropriate become unsuited

for contemporary society. If social changes have rendered our

sodomy statutes unsuitable to the society in which we now

live, we need not be concerned about the matter because there

is a branch of our government within whose purview the mak-

ing of appropriate adjustment and changes peculiarly lies. Since

that branch has not acted, we adhere to the views expressed in

Connor.

Appellants’ argument, that there is no legitimate state interest

to be served by applying the sodomy statute to them, is hinged

to a very great extent upon the contention that somehow the

statute is constitutionally forbidden by that clause of the First

—

Amendment to the Constitution of the United States prohibiting

laws respecting establishment of religion. We rejected this argu-

ment in Connor and reject it here, and for the same reasons.

The appellants additionally assert that the state must articulate

the secular, social interests the statute under attack seeks to

protect, suggesting that the failure to do so shows that the only

purposes served to relate to establishment of religion. We do

not think a recitation of purpose in the statute is necessary.

Even if we should concede, and we do not, that the state had

no interest in the suppression or minimization of sexual per-

version, the condition existing at the time of this offense is

illustrative of a valid state interest. Officer Phillips testified

that the site is often frequented by children. The two male

appellants, purportedly unacquainted, met there and in only

a few minutes were in an automobile in the well' lighted area

enjoying fellatio. On cross-examination, Officer Phillips was

asked to read his arrest report. It disclosed that this area, con-

structed for enjoyment and rest by travelers, had come to be

frequented by homosexuals and that the sheriff's office had

received many complaints of such acts being observed and of

visitors being approached by homosexuals. This is a clear and

sufficient indication of the public interest to be served by the

sodomy statute. People who come to such places for rest, re-

cuperation and reiaxation have a right to be unmolested, par-

ticularly by those in search of the exercise of their claimed right

to sexual perversion, and should not expect to find in such

havens as this the type of activities with which appellants were

charged.

The police power is very broad and comprehensive and em-

braces maintenance of good order and quiet of the community,

and preservation of the public morals, Williams v. State, 85

Ark. 464, 108 S.W. 838, 26 L.N.S. 482, 122 Am. St. Rep. 47,

affd 217 U.S. 79, 30 S. Ct. 493, 54 L. Ed. 673, 18 Ann. Cas.

865; City of Helena v. Dwyer, 64 Ark. 424, 42 S.W. 1071.

Under it, the legislature may, within constitutional limitations.

MOLLE RIAL CLS Reo, |

Nv cee emit tna a byte

BBeeareiiinadeins:. tevnetici said iliniianndt wanewntendatinnnaiinannntasocrtiioib

ae i le - -_—

aay ere

prohibit all things hurtful to the comfort, safety and welfare of

the people and prescribe regulations to promote the public

health, morals and safety. Wright v. DeWitt School District,

238 Ark. 906, 385 S.W.2d 644; Williams v. State, supra; Dabbs

v. State, 39 Ark. 353, 43 Am. Rep. 275. In its exercise the

legislature has a wide discretion in determining what the public

interest demands and what measures are necessary to meet these

requirements, and is limited only by the principle that its acts

must reasonably tend to correct some evil and promote some

interest of the commonwealth not violative of any direct, posi-

tive or necessarily implied constitutional mandate, or opposed

to natural right and fundamental principles of civil liberty.

Wright v. DeWitt School District, supra; Fiser v. Clayton, 221

Ark. 528, 254 S.W.2d 315; Dabbs v. State, supra. See also,

City of Helena v. Dwyer, supra. It is the duty of the courts to

resolve all doubts in favor of the legislative action and to sustain

it unless it appears to be clearly outside the scope of reasonable

and legitimate regulation. Williams v. State, supra; Dabbs v.

State, supra. In Williams, we found a legitimate state interest

in prevention of annoyance to travelers by drummers soliciting

for physicians, bath houses, hotels, etc.

In any event, we consider the sodomy statute to be a legiti-

mate exercise of the police power by the General Assembly to

promote the public health, safety, morals and welfare. See State

v. Rhinehart, 70 Wash. 2d 649, 424 P.2d 906; People v. Hurd,

5 Cal. App. 3d 865, 85 Cal. Rptr. 718 (1970).

Although appellants nowhere state, as a point for reversal,

that our sodomy statute is void for vagueness, they somehow

weave such an assertion into their argument that the statute

serves no legitimate state interest. It is sufficient to say that

whenever the definition of general words in a criminal statute,

passed pursuant to the police power, may be adequately deter-

mined through reference to judicial decisions construing the

statute, it is not void for vagueness. See State v. Anthony, 179

4 ra

ay. ewe

Ore. 282, 169 P.2d 587 (1946). In Connor, we found the

definitions in Strum v. State, 168 Ark. 1012, 272 S.W. 359:

Mangrum v. State, 227 Ark. 381, 299 S.W.2d 80: Havens v.

State, 217 Ark. 153, 228 S.W.2d 1003; and Smith v. State,

150 Ark. 265, 234 S.W. 32, adequate to meet this challenge, if

the statute were otherwise subject to attack on this score. We

again reject this argument.

Appellants also argue that since a maximum sentence of 21

years may be imposed upon consenting adults for sodomy, and

the maximum punishment for husband and wife engaging in

normal sexual intercourse under the same circumstances would

constitute nothing more than disorderly conduct, enforcement

of the statute constitutes cruel and unusual punishment. Appel-

lants call our attention to Ark. Stat. Ann. §§ 41-1432, 41-1401

and 41-2701 (Repl. 1964). Assuming, without deciding, that

these statutes, and only these, would apply in the postulated

case, the greatest possible punishment would be a fine of $300

and a jail sentence of one year. In order to sustain appellants’

argument here, whether it be based on cruel and unusual punish-

ment or equal protection criteria, we would have to accept

their arguments hereinabove rejected as a premise. This we

cannot do. It is within the province of the legislative branch

to classify crimes and determine the punishment therefor. Stout

v. State, 249 Ark. 24, 458 S.W.2d 42; Thom v. State, 248 Ark.

180, 450 S.W.2d 550. No punishment authorized by statute,

even though severe, is cruel and unusual unless barbarous or

unknown to the law, or so wholly disproportionate to the nature

of the offense as to shock the moral sense of the community.

Davis v. State, 246 Ark. 838, 440 S.W.2d 244. We cannot say

that either appellants’ eight-year sentence or the 21-year maxi-

mum fails to meet any of these tests for constitutionality.

It is a long-standing rule of this court, and generally of other

courts, that in order for one to have standing to challenge the

constitutionality of a legislative act, the act must be unconstitu-

NOE SALA PTH YD

pa ee

tional as applied to him. If appellants’ attack, as stated and

restated by them, is hinged, in substantial part, upon the asser-

tion that the statute draws no distinction between acts com-

mitted in public and acts committed in private, the very ab-

sence of the element of privacy of the act should deprive

appellants of any standing to question the constitutionality of

the statute. Certainly they have no standing to challenge its

constitutionality as applied to husband and wife or consenting

adults of opposite sexes. See May v. State, 254 Ark. — (April

9, 1973), 492 S.W.2d 888; Connor v. State, supra; Lienhart v.

Burton, 207 Ark. 536, 181 S.W.2d 468; Connor v. Blackwood,

176 Ark. 139, 2 S.W.2d 44; Ferguson v. Hudson, 143 Ark.

187, 220 S.W. 306. See also, City of Ft. Smith v. Scruggs, 70

Ark. 549, 69 S.W. 679, 58 L.R.A. 921, 91 A.S.R. 100.

We have held that a statute long in existence, under which

many cases have been prosecuted and its validity inferentially

sustained, should not be held invalid except for very cogent

reasons and, then, only on the attack of one injuriously affected

by it. Swaim v. State, 184 Ark. 1107, 44 S.W.2d 1098. Here

we do not find cogent reasons to invalidate this act, which has

existed for over 100 years, except for a reduction of the mini-

mum punishment in 1955, and under which many prosecutions

have been sustained. We further find that appellants have not

been injuriously affected by its application.

We note that there are other jurisdictions which have re-

jected similar assaults on the constitutionality of such acts.

See, e.g., Everette v. State, 465 S.W.2d 162 (Tex. Cr. App.

1971); Pruett v. State, 463 S.W.2d 191 (Tex. Cr. App. 1970);

State v. White, 217 A.2d 212 (Me. 1966): State v. Rhinehart,

70 Wash. 2d 649, 424 P.2d 906 (1967); People v. Hurd, 5

Cal. App. 3d 865, 85 Cal. Rptr. 718 (1970); People v. Roberts,

256 Cal. App. 2d 488, 64 Cal. Rptr. 70 (1967); People v. Rags-

dale, 177 Cal. App. 2d 676, 2 Cal. Rptr. 640 (1960): People v.

Massey, 137 Cal. App. 2d 623, 290 P.2d 906 (1955); Wash-

—— Vo

ington v. Rodriguez, 82 N.M. 428, 483 P.2d 309 (Ct. App.

1971); Jaquith v. Commonwealth, 331 Mass. 439, 120 N_E.

2d 189 (1954).

We find no error in the trial court’s sustaining the prosecut-

ing attorney's objection and motion to strike testimony of the

professed fiancee of Burkhead in response to the question “Have

you ever known Tom Burkhead to have any tendencies toward

being a homosexual?” We do not take this response to be a

statement of the witness’ opinion of either the physical or men-

tal condition of Burkhead, as argued by appellants. The in-

quiry is more nearly equated with one as to this appellant's

character. We have defined character to be “what a person is”

and to include natural and acquired traits. Biddle v. Riley, 118

Ark. 206, 176 S.W. 134. Proof of character cannot be made

except by showing general reputation and not by specific acts

or conduct. In Henson v. State, 239 Ark. 727, 393 S.W.2d

856, the defendant presented the testimony of three young

women, each saying that she had been alone with the defendant

and he had never attempted to make any advance to her. The

state rebutted this testimony by testimony of two other women

that defendant had raped them. This court reversed the con-

viction, saying that none of the women should have been al-

lowed to testify, because their testimony constituted an effort

to show the character of the defendant by specific acts and

was, therefore, erroneously admitted. We said that the evidence

offered by the defendant was clearly inadmiss ble. The analogy

is certainly sufficient to justify the exclusion of this testimony

in the case before us.

In addition, however, we find authorities in other states have

treated the particular question directly. In Berger v. State, 179

Md. 410, 20 A.2d 146 (1941), the refusal to permit the wife

of a defendant charged with an unnatural and perverted attack

on another woman to be asked if her husband had ever shown

any sexual abnormalities was held proper. In State v. Sinnott,

VOU LNT CiRRRLORYS srcartronmtr magma

— A-10 —

24 N.J. 408, 132 A.2d 298 (1957), a sodomy case, the court

refused to allow psychiatric testimony that the defendant did

not have sexual deviate traits. Both courts held that such in-

quiries went to the character of the defendant, which could

be proved only by general reputation of the accused and not

by evidence of particular acts or conduct or testimony of in-

timates. Attempted showing of good character of one charged

with taking indecent liberties with females under the age of

15, by showing a lack of previous incidents, was also held

improper in State v. Fairbanks, 25 Wash. 2d 686, 171 P.2d

845 (1946). We find ample authority for the rejection of the

testimony in the cases cited and find textual support in 22A

C.J.S. 898, Criminal Law, § 691 (39).

Appellants also assert that reversible error was committed

by the prosecuting attorney in cross-examining Carter, and that

their motion for mistrial on that ground was erroneously denied.

The questioned interrogatory was asked after Carter had de-

clined to answer when asked if he was a homosexual unless

the word be defined by the questioner. When this occurred the

cross-examiner propounded and received a negative answer to

the following question:

. . . Is it not a fact, and I want to remind you that you

are under oath now; is it not a fact that in another matter

in this very court room, on that stand, that you testified

under oath that you were, and are, a homosexual?

aT Ee METS

vee)

At the outset we do not agree with appellants that this form

of question constitutes a stronger assertion of fact than it

would had it begun with the words “Did you know that. . .?”

We do not consider the question as worded to constitute an

assertion of fact at all, particularly since the matter was not

pursued when a negative answer was given. Neither do we

agree that there is any assertion that Carter was involved in

another prosecution. “[A]nother matter in this very court, on

DDB IS EB nese ROM Se ee en es

[RLS ec as

|

that stand” could as easily be taken to refer to a civil case as to

a criminal one, and if taken to be the latter, to the prosecution

of someone other than Carter.

In the light of Carter’s evasion of preceding questions, we

find no error here. Carter was subject to the same latitude of

cross-examiation as any other witness. But appellants contend

that Carter could be impeached only under Ark. Stat. Ann. §&§

28-707 and 708 (Repl. 1962). Appellants misapprehend the

proper application of these statutes. They are only a limit on the

introduction of evidence to impeach or contradict the witness,

but not upon his cross-examination. See Wilson v. Thurston

National Insurance Company, 251 Ark. 929, 475 S.W.2d 881:

Bockman v. Rorex, 212 Ark. 948, 208 S.W.2d 991. These

statutes probably would have come into play had the state

attempted to contradict the negative answer given by Carter.

See Holcomb v. State, 218 Ark. 608, 238 S.W.2d 505: Bock-

man v. Rorex, supra.

Appellants argue that there was reversible error in that the

trial judge, court reporter and counsel for both state and ap-

pellants went into the jury room for the purpose of answering

an inquiry by jurors. We hasten to point out that this occurred

before our decision in Martin v. State, 254 Ark. — (July 23,

1973), 497 S.W.2d 268. The record discloses an identical pro-

cedure here and in Martin. We hold that the error was not

reversible on the authority of Martin. We trust that the caveat

there is adequate to point up the hazards involved in such a

procedure, and are confident that resort will not be had to

it in the future.

Since appellants have failed to demonstrate that there was

any reversible error, the judgment is affirmed.

—;

LAW OR CHANCERY MANDATE

State of Arkansas }

In the Supreme Court \

Be It Remembered, That at a term of the Supreme Court of

the State of Arkansas, begun and held at the Court Room in

the City of Little Rock, on the Ist day, being the first Monday

of October, A.D. 1973, amongst others were the following pro-

ceedings, to-wit:

On the 13th day of November, A.D. 1973, a day of said

ear TYE ng Oh a eM EES ea eee ee ee

Claude S. “Sandy” Carter, Jr., and -

Thomas C. Burkhead

Appellants | Appeal from Miller Cir-

No. CR73-87s. See

District

State of Arkansas

Appellee J

11-13-73 Petition for Rehearing denied.