Appeal from the Circuit Court for Montgomery County; Moorman, J.
Henderson, Hammond, Horney, Marbury and Sybert, JJ. Horney, J., delivered the opinion of the Court.
The defendant, Sterling S. Bradbury, charged in a two count indictment with committing sodomy with and an assault and battery on a twelve-year old boy, was convicted by a jury on a general verdict of guilty and sentenced to ten years' imprisonment. On appeal he contends (i) that his motions for a judgment of acquittal should have been granted because the evidence was insufficient to convict him of the common law crime of sodomy and (ii) that the trial court erred in its advisory instructions to the jury.
Without reciting all of the sordid details of the offense, it will suffice to say that the boy testified that he felt the defendant's penis "trying to go in" his rectum and that "it was hard and I felt it wiggling around." Although he did not think "it went up me," he stated "it was hurting" and made him cry hard. It was agreed and stipulated by the State and the defendant that if the doctor, who had examined the boy about two hours after the commission of the offense, were called he
would have testified to the effect that he did not see any sign of strong physical abuse or find anything that would lead him to conclude there had been penetration. The county police officer testified that when the defendant was told the reason for his arrest, he admitted, among other things, that he had put "some vaseline on the boy's rectum and then placed his penis into the boy's rectum." The defendant, testifying in his own behalf, denied having sexual relations with the boy, but admitted that he was "pretty well" drunk at the time.
Since the defendant was charged with sodomy and not unnatural or perverted sexual practice, the question here is whether there was sufficient evidence of penetration. We think there was. In Canter v. State, 224 Md. 483, 168 A.2d 384 (1961), we had occasion to say that "[t]he text writers and authorities generally hold that at common law some proof of penetration is necessary to support a charge of sodomy although slight evidence may suffice." So, in the case at bar, even if some proof of penetration was necessary, we think there was sufficient evidence thereof to justify denial of the motions for a judgment of acquittal and submission of the case to the jury.
In its instructions, the trial court, among other things, advised the jury that:
"A defendant in a criminal case cannot be convicted upon his extrajudicial confession alone. There must be corroboration. * * * If the confession is voluntary and you believe it is a valid confession, then you would need but slight evidence of corroboration. Slight evidence of corroboration has been defined as an infinitesimal amount of corroboration, a very small amount of corroboration. That is a very small amount of evidence in addition to the confession if the confession were believed."
Although this part of the instructions is not as clear as might be desired, we think the trial court, since it was speaking about the confession, in ...