(concurring in part, and dissenting in part).
I agree that defendant in this case, having admitted the act of “sodomy,” should be required to answer for his offense; but I dissent to the holding that 21 O.S.1971, § 886 is constitutional. I also dissent to the punishment imposed, which I consider to be patently excessive under the facts of this case.
As I view 21 O.S.1971, § 886, it is unconstitutionally vague as its meaning is not ascertainable from the language of the statute. The prohibited conduct is not clearly expressed so that the ordinary person of common intelligence can determine exactly what he may, or may not do.
It is fundamental that “no one may be required at peril of life, liberty or property, to speculate as to the meaning of a penal statute. All are entitled to be informed of what the State commands or forbids.” Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888 (1939). As this Court stated in Powers v. Owen, Okl.Cr., 419 P.2d 277, 279 (1966), speaking through Judge Bussey:
“[A] legislative enactment must meet the constitutional requirement that its mandates are so clearly expressed that any ordinary person can determine in advance what he may and what he may not do under it.
“ ‘A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.’ ”
In Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1972), the rule was stated by the United States Supreme Court:
“It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct,' we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.”
I hasten to admit also, that the Supreme Court of Nevada was correct when that court stated in Hogan v. State, supra, the phrase “infamous crime against nature” is a phrase of “art,” but I do not agree that it is as understandable as áre the words “robbery,” “larceny,” “burglary,” and even “murder.” At least those words can be *990found in any ordinary dictionary, but the phrase “abominable and detestable crime against nature” is not defined in any dictionary this writer has consulted. The ordinary person of common intelligence, and e.ven some lawyers, are unaware of “2 Wharton’s Criminal Law and Procedure, § 752, pg. 575”; consequently, that reference does not satisfy the test for constitutionality of the statute. In substance, if the crime is “sodomy,” then the statute should so state and not leave persons to guess at its meaning. Likewise, the fact that courts have interpreted the statute for a hundred years does not satisfy the constitutional requirement.
Also, just because the persons of 1890 and 1910, when the statute was formulated, may have been offended at the word “sodomy,” that puritan belief is no justification for perpetuating an unconstitutionally vague statute. The Supreme Court of Florida met this same question in Franklin v. State, 257 So.2d 21 (1971), when that court held a similar statute unconstitutional and said:
“We have over a long period of time upheld the statute despite earlier constitutional challenges. We are persuaded that these holdings and this statute require our reconsideration. One reason which makes this apparent is the transition of language over the span of the past 100 years of this law’s existence. The change and upheaval of modern times are of drastic proportions. People’s understandings of subjects, expressions and experiences are different than they were even a decade ago. The fact of these changes jn the land must be taken into account and appraised. Their effect and the reasonable reaction and understanding of people today relate to statutory language.
“A further reason dictating our reexamination here is the expansion of constitutional rulings on the invasion of private rights by state intrusion which must be taken into account in the consideration of this statute’s continuing validity. The language in this statute could entrap unsuspecting citizens and subject them to 20-year sentences for which the statute provides. Such a sentence is equal to that for manslaughter and would no doubt be a shocking revelation to persons who do not have an understanding of the meaning of the statute.
“Common law definitions are of course resorted to when the forbidden conduct is not defined. This may supply'the deficiency for a legal understanding of a vague statute, but it cannot meet the constitutional requirement that the language of the statute be understandable to the common man.”
More recently enacted statutes of other states, which treat the offense concerned in this case, specifically define “sodomy” and “aggravated sodomy.” Senate Bill 22, now before the first session of the 34th Oklahoma Legislature, likewise defines the offense without words of antiquity, so the ordinary person of common intelligence can understand what is prohibited.
I concurred in this Court’s decision in Warner v. State, Okl.Cr., 489 P.2d 526 (1971); but at this point in time I am convinced that 21 O.S.1971, § 886, is unconstitutional and should be so declared. Also, the facts of Warner v. State, supra, are clearly distinguishable to the instant case.
Therefore, if defendant is to be punished in this case, I believe that punishment should be accomplished under the provisions of 21 O.S.1971, § 22, “Outraging Public Decency.”