Before DUFFY, LINDLEY and SWAIM, Circuit Judges.
The defendant, John Patrick Gill, was found guilty on each of the three counts of an indictment which charged him with (1) an assault on one Edna Whimsett with a dangerous weapon, a piece of a broken bottle, with intent to do bodily harm and without just cause or excuse; (2) assaulting her by striking, beating and wounding her; and (3) assaulting her with intent to commit the felony of sodomy. The indictment alleged that by committing these three assaults the defendant violated sections 113(c), (d) and (b), respectively, of Title 18 of the United States Code. The indictment alleged that the three assaults occurred on a vessel registered under the laws of the United States while the vessel was on a voyage from Chicago, Illinois, to Michigan City, Indiana, upon the waters of Lake Michigan.
The applicable provisions of section 113 of Title 18, United States Code, provide as follows:
"Whoever, within the special maritime and territorial jurisdiction of the United States [this term expressly includes any vessel registered under the laws of the United States while on a voyage on the waters of any of the Great Lakes, Sec. 7(2) Title 18, U.S. Code], is guilty of an assault shall be punished as follows:
"(b) Assault with intent to commit any felony, except murder or rape, by fine of not more than $3,000 or imprisonment for not more than ten years, or both.
"(c) Assault with a dangerous weapon, with intent to do bodily harm, and without just cause or excuse, by fine of not more than $1,000 or imprisonment for not more than five years, or both.
"(d) Assault by striking, beating, or wounding, by fine of not more than $500 or imprisonment for not more than six months, or both."
Under Count III of the indictment the court assessed a fine of $3,000 and sentenced the defendant to imprisonment for a period of ten years. Under Count I of the indictment the court sentenced the defendant to imprisonment for a period of five years and under Count II to imprisonment for a period of six months. The sentences on Counts I and II were to run concurrently with the sentence on Count III.
The defendant first attacks the judgment and the sentence on the ground that Count III of the indictment, charging assault with intent to commit the felony of sodomy, did not charge "Assault with intent to commit any felony, except murder or rape," within the meaning of section 113(b) of Title 18, United States Code. The defendant says that, since we have no act of Congress defining the crime of sodomy or fixing the punishment therefor, sodomy is not a crime against the United States. It is true, as this court said in United States v. Sutter, 7 Cir., 160 F.2d 754, 756: "There are no common law crimes within the jurisdiction of the Federal Government." And, as the Supreme Court stated in Viereck v. United States, 318 U.S. 236, 241, 63 S. Ct. 561, 563, 87 L. Ed. 734: "One may be subjected to punishment for crime in the federal courts only for the commission or omission of an act defined by statute, or by regulation having legislative authority, and then only if punishment is authorized by Congress."
The present Title 18 of the United States Code, entitled "Crimes and Criminal Procedure", is a revision and codification by Congress, by Act of June 25, 1948, Ch. 645, 62 Stat. 683, of the entire subject-matter of crimes against the United States and Federal criminal procedure. The first section of that Act, Title 18, United States Code, section 1, classified offenses and in paragraph (1) defined a felony as "Any offense punishable by death or imprisonment for a term exceeding one year". In that definition of felony, found in the revision and codification of laws defining crimes against the United States, it seems clear that Congress was speaking only of offenses against the United States, offenses which Congress had defined and for which Congress had fixed a penalty.
Section 113 of Title 18 fixes the punishment for various types of assaults. Paragraph (a) of that section fixes the punishment for assault with intent to commit murder or rape as imprisonment for not more than twenty years. Paragraph (b) of the section then fixes the punishment for assault with intent to commit any felony, except murder or rape, by a fine of not more than $3,000 or imprisonment for not more than ten years, or both. Murder is defined and punishment of imprisonment for more than one year is fixed by section 1112, Title 18, United States Code. By section 2031 of Title 18, United States Code, punishment by imprisonment for more than one year is also fixed for rape. Thus both of these crimes, since they are punishable by imprisonment for a term of more than one year, are brought within the classification of felonies as defined by section 1 of the Act.
But we cannot agree with the defendant that sodomy, when committed within the boundaries of Indiana and within the maritime and territorial jurisdiction of the United States, was not a crime against the United States. Indiana, by section 10-4221 of Burns' Indiana Statutes Annotated (1942 Replacement), has defined sodomy, and fixed the punishment therefor as a fine of not less than $100 nor more than $1,000, to which may be added imprisonment in the state prison for not less than two nor more than fourteen years. The Supreme Court of Indiana has held that the acts of which this defendant is charged constituted sodomy within the meaning of the Indiana statute. Glover v. State, 179 Ind. 459, 101 N.E. 629, 45 L.R.A., N.S., 473. By the terms of 18 United States Code, section 13, Congress has provided that whoever, within the special maritime and territorial jurisdiction of the United States, is guilty of any act which, although not made punishable by any enactment of Congress, would be punishable if committed within the jurisdiction of the state in which such place is situated by the laws thereof in force at the time of such act, shall be guilty of a like offense and subject to a like punishment.
The acts here charged were committed on a voyage across Lake Michigan from Chicago, Illinois, to Michigan City, Indiana, on a vessel enrolled under the laws of the United States. Therefore, pursuant to 18 United States Code, section 7(2), at the time of the occurrences here charged the defendant, on the Pat Pam, ...