Dissent
Jackson, J.I cannot agree with the'conclusions reached in the majority opinion and therefore dissent thereto.
The majority opinion sufficiently sets forth the charge, the motion to quash addressed thereto, the ruling on the motion and the judgment rendered.
In my opinion the trial court committed reversible error in overruling appellant’s Motion to Quash. The case of Estes v. State (1964) 244 Ind. 691, 195 N. E. 2d 471, on which the majority opinion rests is in error as pointed out by my dissent thereto.
The very language of the statute purporting to define the offense of sodomy, is so indefinite and uncertain that its unconstitutionality follows as certainly as night follows day. It is only when the court indulges in the inference or presump*155tion of guilt on the part of the defendant that the defendant by any stretch of the imagination could be said to be informed of the nature and extent of the charge placed against him in the language of the statute, Acts 1905, ch. 169, § 473, p. 584, being § 10-4221 Burns’ 1956 Replacement. In criminal cases all doubts, inferences and presumptions are resolved in favor of the innocence of the defendant.
In Indiana we have no common law crimes, by express provision of the Constitution all crimes are statutory. Therefore unless the statute so specifically defines the crime that the defendant is fully apprised of the issue he is required to meet at the trial, it is constitutionally deficient and must fail when the sufficiency thereof is challenged by a motion to quash.
In overruling the motion to quash the court committed reversible error requiring the reversal of the judgment of the trial court. The cause should be reversed and remanded with instructions, to sustain appellant’s motion for a new trial and for further proceedings consistent, with this dissent.
Other questions presented in this appeal are not discussed as it is deemed unnecessary to do so. It is to be hoped that the incoming legislature will either clarify or abolish this anarchism reminiscent of the heyday of the witch hunts of early colonial times. In todays space age and sophisticated society it seems that the statute should spell out in language understandable by the person of average scholastic attainment and intelligence the specific nature of the crime with which he is charged and if that cannot be done then it should not be denominated a crime.
Myers, J., concurs.Note.—Reported, in 222 N. E. 2d 821.,