Canfield v. State

OPINION

BUSSEY, Judge:

Appellant, Kenneth Dale Canfield, hereinafter referred to as defendant, was charged, tried and convicted in the District Court of Oklahoma County, Case No. CRF-71-944, for the offense of Oral Sodomy, After Former Conviction of a Felony. His punishment was fixed at fifteen (15) years imprisonment, and from said *988judgment and sentence, a timely appeal has been perfected to this Court.

At the non-jury trial, the parties stipulated to the statement of facts. The defendant had been drinking in a bar in Oklahoma City when he was approached by the co-defendant, Arnold Billings, who had been drinking in the same bar, and was asked to ride around. While riding around, the two agreed to engage in the act of oral sodomy. They pulled off the road approximately 100 yards, into a clump of trees, and reclined in the seat of the automobile. A police officer driving by observed the car and, thinking it might be stolen, stopped to investigate. He walked up to the car and observed Co-defendant Billings performing an act of oral sodomy upon the defendant.

The only fact not agreed upon was whether the door to the vehicle was locked. The officer reported the door was unlocked while the defendant contended that the door was locked.

The first proposition asserts that 21 O.S., § 886, is unconstitutional “as being too broad and indefinite subjecting the defendant to rule by man rather than law.” In dealing with a similar proposition in Warner v. State, Okl.Cr., 489 P.2d 526, we stated:

“ * * * The Nevada Court faced the same contention as to the unconstitutional vagueness of their similar Crime Against Nature Statute in Hogan v. State, 84 Nev. 372, 441 P.2d 620, wherein the Court stated:
‘It should be noted that this court is not unique in this interpretation of the infamous crime against nature. At least twenty-one other states define it similarly. See 2 Wharton’s Criminal Law and Procedure, § 752, pg. 575. The phrase “infamous crime against nature” indicates an offense against nature and the laws of nature, and is as inherently .understandable as are such words as “robbery”, “larceny”, “burglary”, and even “murder.” All are “words of art” disclosing their full meaning through interpretation, usage and application.’ ”

We therefore find this proposition to be without merit.

The second proposition contends that 21 O.S., § 886 is unconstitutional “in light of the facts of this case, and is not in the protection of a public interest.” Defendant argues that the statute does not allow consenting adults to engage in sexual activity which is guaranteed to them by the Fifth and Fourteenth Amendments to the United States Constitution. In Warner, supra, we stated:

“We have examined the cases cited by defendants to support their contention that the statute was void, in that it is so broad as to cover consensual acts of married people. Griswold v. State of Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510; Buchanan v. Batchelor, D.C., 308 F.Supp. 729, and Cotner v. Henry, 7 Cir., 394 F.2d 873. We are of the opinion that the United States Supreme Court, in the landmark case of Griswold v. State of Connecticut, supra, does not prohibit the state’s regulation of sexual promiscuity or misconduct between non-married persons. We, therefore, find this proposition to be without merit.”

The third proposition asserts that the defendant has the constitutional right to have facilities provided for him that would rehabilitate his conduct and personality. We are of the opinion that this proposition is without merit. In Ex parte Combs, 87 Okl.Cr. 164, 195 P.2d 772, we stated:

“ * * * Therein we also said that the designation of the place of confinement is an administrative and not a judicial act. Moreover, we held that the legisla--ture has full authority to provide prisons, and to determine where prisoners may be sent; and the courts have no discretion as to the place to which criminal may be sentenced except as the legislature gives it. * * * ”

*989The final proposition asserts that the trial court erred in permitting the Amended Information showing a prior conviction when the previous charge of Second Degree Manslaughter had no relationship or similar elements to oral sodomy. We need only observe that the defendant does not support this proposition with the citations of authority. We have previously held that it is necessary for defendant not only to assert error but to support his contentions by both argument and the citation of authorities. Where this is not done, and it is apparent that the defendant has been deprived of no fundamental rights, this Court will not search the • books for authorities to support the mere assertion that the trial court has erred. Sandefur v. State, Okl.Cr., 461 P.2d 954.

The judgment and sentence is, accordingly, affirmed.

BLISS, P. J., concurs. BRETT, J. , concurs in part and dissents in part.