In Ex parte Bergen, 14 Texas Ct. App., 52, it was held that under our Revised Penal Code it is no longer necessary that an offense be expressly defined, and that sodomy is now, by article 342 of the Penal Code, an offense which can be punished under our law.
A motion in arrest of judgment attacked the sufficiency of the indictment, which states the offense to be that defendant (omitting formal parts) “did then and there unlawfully and wilfully commit with a mare, same being a beast-, the abominable and detestable crime against nature by then and there having carnal connection with said beast, and did then and there commit the crime of sodomy with said beast,” etc. We are of opinion that these allegations sufficiently charge the offense. In The State v. Campbell, 29 Texas, 44, the indictment simply pursued the language of the statute. It did not charge, as in this case, “ carnal knowledge ” or connection, nor did it mention even the name of the offense. It was rightly held fatally defective, though it seems that in California upon an information charging in the statutory language almost identical with the words used in article 342 it was held that the information was good. (People v. Williams, 59 Cal., 397. See, also, State v. Williams, 34 La. An., 87.) In Davis v. The State, 8 Harris & *478Johns. (Inch), 154, it was said “ the crime of sodomy is too well known to be misunderstood, and too disgusting to be defined further than by merely naming it. I think it unnecessary, therefore, to lay the carnaliter cognovit in the indictment.”
Another objection to the indictment was that it did not allege the genus of the mare or that said mare was a female of her species. Mr. Bishop says as to the name of the animal, “as where the offense is with a man his name must be given; so where it is with an animal the sort of animal must at least so far be set out that the act will appear to be of the indictable kind. It has been ruled in England sufficient to say “ an animal called a bitch.” (2 Bish. Grim. Proc. (Sd ed.), § 1015.) “A mare is the female of the horse or equine genus of quadrupeds.” (Webst. Diet.)
But it is said the proof “of carnal knowledge” is insufficient to support this conviction. “ The carnal knowledge required in this offense is the same as in rape proper,” and Mr. Bussell says the rules “ with regard to the evidence and manner of proof in cases of rape ought specially to be observed upon a trial for this still more heinous offense. When strictly and impartially proved, the offense well merits strict and impartial punishment; but it is from its nature so easily charged and the negative so difficult to be proved that the accusation ought to clearly be made out. The evidence should be plain and satisfactory in proportion as the crime is detestable.” (1 Buss, on Crimes (9th ed.), 937.) “Penetration,” as in rape, must be proven. “ There must be res in re, but to no particular depth.” . . . But “the jury may infer the penetration from circumstances, without direct proof.” (Bish. on Statutory Crimes (2d ed.), § 4S8; Brauer v. The State, 25 Wis., 413; Comm. v. Snow, 111 Mass., 411.)
The charge of the court in this case fully and plainly submitted the law of the case to the jury. But one witness testified in the case, and he could not swear to the penetration, but he testified to a state of facts from which the jury were warranted in assuming that fact. It was their province and duty to judge of the credibility and weight of the evidence. They have done so, and we cannot say the verdict is wrong. Having found no reversible error in the trial and conviction, the judgment is affirmed.
Affirmed.
[Opinion delivered January 31, 1885.]