Judge, concurring in part and dissenting in part..
I must, in part, dissent. The evidence established that the defendant, a scoutmaster, engaged in numerous acts of fellatio with all but one of seven sub-teenage and teenage boys he took on an overnight camp-out. Although it appears that all of the acts were voluntary, the children under the age of twelve could not be deemed accomplices so as to require corroboration of their testimony under the rule set out in Sherrill v. State, 204 Tenn. 427, 321 S.W.2d 811 (1959). Appellant’s contention to the contrary, in my view, fails since T.C.A. § 39-606 specifically declares that any child under the age of twelve who is “unlawfully sexually molested or fondled ... is declared to be not an accomplice of the person charged . I would agree *905with the State’s contention, and thus am at odds with the majority’s view on this issue. While our crime against nature statute is much more general than the provisions of T.C.A. § 39-606, so general as a matter of fact that its limits have never been defined with exactitude (see Locke v. State, 501 S.W.2d 826 (1973)), still it is inescapable that the act of sexual deviation committed by the defendant included an assault and battery against male children including fondling. Those so victimized, under the law, cannot be considered accomplices.
As did the majority, I have carefully reviewed the evidence and all of the assignments pertaining thereto, as well as the charge of the court to the jury, and find them to be unmeritorious.
I would, however, sustain the appellant’s assignment of error to the action of the court in ordering three of the sentences to be served consecutively. The trial judge himself recognized that recent guidelines set down by our Supreme Court for the guidance of trial judges in determining how multiple sentences should be ordered served did not suggest consecutive sentences in this case. See Gray v. State, 538 S.W.2d 391 (Tenn.1976). Because of the loathsome nature of the crimes involved, it is apparent that the sensibilities of the trial judge lead him to go outside these guidelines. As he stated in the record:
I’ve heard all the evidence and considering all the guidelines and as I say this strictly doesn’t fall within any guideline set out by the Supreme Court that would authorize me to make consecutive sentences, however, I don’t think the Supreme Court intended that this defendant could commit one homosexual act on a child, then he could commit as many others as he pleased before he was brought to trial, and that there be no additional— —that there could be no additional punishment. I hope the Supreme Court did not mean that. I think this man is dangerous to young children. I think on the record I’ve heard that he is. I think that although he doesn’t qualify for the perhaps abnormality to the degree that the guidelines state that that guideline is also applicable.
The unfortunate nature of the criminal activity involved is such that it is generally a repetitive activity that may go on for months or even years before detection and prosecution. It might be that a practicing homosexual might have illicit relations with hundreds of willing partners before being made aware by public denouncement and prosecution just how serious an offense his sexual deviation has lead him to commit time and time again. It is to be supposed that now the defendant, apparently with no other criminal background, does know how serious may be the consequences if he repeats his crime. After ten or fifteen years of incarceration, the lesson should be painfully learned.
I agree with the trial judge that the appellant’s situation does not fit within the guidelines established by the Supreme Court:
Essentially, a consecutive sentence should be imposed only after a finding by the trial judge that confinement for such a term is necessary in order to protect the public from further criminal conduct by the defendant.
Types of offenders for which consecutive sentencing should be reserved may be classified as follows: (1) the persistent offender, defined as one who has previously been convicted of two felonies or of one felony and two misdemeanors committed at different times when he was over eighteen (18) years of age; (2) the professional criminal, one who has knowingly devoted himself to criminal acts as a major source of livelihood or who has substantial income or resources not shown to be derived from a source other than criminal activity; (3) the multiple offender, one whose record of criminal activity is extensive; (4) the dangerous mentally abnormal person, so declared by a competent psychiatrist who concludes as a result of a presentence investigation that the defendant’s criminal conduct has been characterized by a pattern of repetitive or compulsive behavior or by persist*906ent aggressive behavior with heedless indifference to consequences, and (5) the dangerous offender . . . . Gray v. State, supra at p. 393.
A judge cannot disregard these guidelines, no matter how abhorrent he may personally view the non-violent criminal activity involved.
I would affirm the judgement but modify it to provide that all sentences be served concurrently.