(concurring in the result).
Appellant was convicted on two counts— one for rape and the other for sodomy. For reasons which I shall state, I believe that the conviction for. sodomy should be reversed. I am bound to concur in the result reached by my brethren, however, since-the rule is that a ¡general sentence or judgment upon an indictment containing more than one count, with a verdict of guilty upon each, will be sustained if the verdict upon any count is good, and sufficient to support the judgment.1' Nevertheless, I feel that it may serve the interests of the administration of-justice and of this appellant who has been improperly convicted of the crime of sodomy to state briefly the reasons for my view that that conviction is fatally defective.
,The code provision which defines sodomy and declares it to be a crime further provides, that
“ *■ * * in any indictment for the commission of any of the acts, hereby declared to be offenses, it shall not be necessary to set forth the particular unnatural or perverted sexual practice with the commission of which the defendant may be charged, nor to set forth the particular manner in which said unnatural or perverted sexual practice was committed, but it- shall be sufficient if, the indictment set forth that the-defendant committed a certain unnatural and perverted sexual practice with a person or animal, as the case may be: Provided, That the accused, on motion, shall be entitled to be furnished with a bill of particulars, setting forth the particular - acts which constitute the offense charged.” 2
The statute does not, however, make commission of “a certain unnatural and perverted sexual practice” a crime. The only acts “declared to be offenses,” and hence covered by the procedural provisions set out above, are those defined in detail by the first part of the statute. That part reads:
“Every person who shall be convicted of taking into his or her mouth or anus the sexual organ of any other person or animal, or who shall be convicted of placing his or her sexual organ in the mouth or anus of any other person or animal, or who shall be convicted of having carnal copulation in an opening of the body except sexual parts with another person, shall be fined not more than $1,000 or be imprisoned for a period not exceeding ten years. Any person convicted under this section of committing such act with a person under the age of sixteen years shall be fined not more $1,000 or be imprisoned for a period not exceeding twenty years. * * *
“Any penetration, however slight; is sufficient to complete the crime specified in this section. Proof of emission shall not be necessary.” 3
In this case, the trial court instructed the jury on the sodomy count by merely repeating the .charge of the indictment which alleged that the accused had “committed a certain unnatural and perverted sexual practice.” The court told the jury that.“As to the second charge [which was sodomy], nothing more need be said except that these general principles of law that I have discussed, of course, apply to the. second charge. It needs no further elaboration.” He did not- read that part of the statute defining the offense of sodomy to the jury nor did he describe or discuss *481any of the elements of the offense. This is error of the most fundamental kind. A trial court in a criminal case must instruct the jury “ ‘on all essential questions of law involved in the case’ ” 4 and those necessarily include the elements which constitute the crime charged. Here, the elements of sodomy are specifically spelled out in the statute but the jury was told nothing of them. Without a statement by the court of the essential elements of the crime, the jury is not equipped to perform its function, which is only to decide whether the evidence before it constitutes the act made criminal by the statute. As Chief Justice Vinson, then an Associate Justice of this court, said for the court in Williams v. United States, 1942, 76 U.S.App.D.C. 299, 300-301, 131 F.2d 21, 22-23 concerning similar errors not called to the court’s attention by counsel:
" * * * This charge as a whole does not give the defendant the protection that the law requires.
“A basic defect of the charge is the failure to discuss and define the offenses included within the indictment. Rape was not defined generally, much less broken down into its constituent elements; naturally, as a result, the elements were not discussed or defined. * * *
“ * * * We have always been proud that under our law the elements which go to make up a crime are definitely established. To insist that a jury be told what rape is, and, when circumstances require, what the included offenses are, in the eyes of the law, is not to demand meaningless ritual. The average man has some idea of what murder is, but we would not expect a judge to say, Jurors, you know what murder is, go and decide if this man is guilty of it. To say that the jury, under proper instruction, might not have found defendant guilty or might not have inflicted the death penalty is not to interfere with its judgment. We merely insist that the judgment of a jury be informed and be made under the safeguards of correct procedure.
* * * * * *
“ * * * It is almost, if not, as important to a defendant to have a jury instructed on the law applicable to his particular case by the judge, who knows the law, as to have a jury of his peers. The latter is supposed to safeguard our institution of fair trial by insuring impartiality. But of what value is an open mind, if it does not know, with clear delineation, the issues upon which it is to pass judgment? Just as a lawyer might be ignorant in a meeting of scientists, so may a juror be in his casual acquaintance with the law. The jury, a group of responsible citizens, is entitled to this legal instruction if it must accept the duty of passing upon the very life and death of a man. The law requires it.”
Conventional proprieties and good taste cannot excuse leaving a jury in total ignorance to speculate on the definition of the very crime upon which they are sitting in judgment.
Counsel for the accused did not raise the issue at any time either in the trial court or on appeal. But Rule 52(h) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., and the decided cases make it clear that we may notice errors as fundamental as this one on our own initiative.5
. Whitfield v. State of Ohio, 1936, 297 U.S. 431, 438, 56 S.Ct. 532, 80 L.Ed. 778; Claasen v. United States, 1891, 142 U.S. 140, 146-147, 12 S.Ct. 169, 35 L.Ed. 966; Marzani v. United States, 1948, 83 U.S.App.D.C. 78, 86, 168 F.2d 133, 141; Shelton v. United States, 5 Cir., 1934, 69 F.2d 223. Appellant here was sentenced to 4 12 years which is within the limit possible for a rape conviction. See D.C.Code (1940 ed.), § 22-2801.
. D.C.Code (1940), § 22-3502. (Emphasis supplied.)
. Ibid.
. Tatum v. United States, 88 U.S.App.D.C. -, 190 F.2d 612. See eases collected id. n. 4.
. See eases collected in Williams v. United States, 76 U.S.App.D.C. at 300 n. 3, 131 F.2d at 22 n. 3; and Tatum v. United States, supra note 4, at n. 3.