## Facts

- Louis Whitmarsh was charged under South Dakota Penal Code § 351 with assaulting a six-year-old boy with intent to commit the “detestable and abominable crime against nature.”
- The prosecution’s theory was that the intended act was forced oral sex (fellatio).
- A jury found Whitmarsh guilty, and the trial court sentenced him to three years’ imprisonment.
- The trial court denied Whitmarsh’s motion for a new trial.
- Whitmarsh appealed the judgment and the order denying a new trial.

## Issues

1. Whether South Dakota Penal Code § 351’s phrase “crime against nature” includes fellatio, even if common-law “sodomy” was limited to anal intercourse.
2. Whether Whitmarsh established reversible error based on asserted evidentiary and charging defects.
3. Whether the sentence was unlawful due to alleged improper timing or duration under the sentencing statutes.

## Decision

- The South Dakota Supreme Court affirmed the conviction and the order denying a new trial.
- The court held that § 351’s “crime against nature” language is broader than common-law sodomy and includes fellatio.
- The court rejected Whitmarsh’s remaining claims of evidentiary, charging, and sentencing error as unsupported or legally incorrect.

## Legal Principles

- When a criminal statute uses broad language (“crime against nature”) rather than a narrow common-law label (“sodomy”), courts may construe it to reach forms of “unnatural carnal copulation” beyond the common-law definition.
- Statutory interpretation may turn on legislative word choice indicating coverage of multiple “unnatural” sexual acts, not solely anal intercourse or bestiality.
- A defendant seeking reversal must show prejudicial legal error; conclusory objections to evidence, charging, or sentencing do not warrant relief absent a demonstrated violation of law.

## Conclusion

The court construed the “crime against nature” statute to include oral sex, concluding the Legislature intended § 351 to reach unnatural sexual acts beyond common-law sodomy, and it therefore affirmed Whitmarsh’s conviction for assault with intent to commit that offense and upheld the sentence.


State v. Whitmarsh, 128 N.W. 580 (S.D. 1910)