State v. Aldrich, 57150

• Decision Date: 31 July 1975
• Docket Number: No. 57150,57150
• Citation: 231 N.W.2d 890
• Parties: STATE of Iowa, Appellant, v. Jean ALDRICH, Appellee.
• Court: Iowa Supreme Court

Page 890

231 N.W.2d 890

81 A.L.R.3d 1062

STATE of Iowa, Appellant, v. Jean ALDRICH, Appellee.

No. 57150.

Supreme Court of Iowa.

July 31, 1975.

Richard C. Turner, Atty. Gen., and Lyle A. Rodenburg, County Atty., for appellant.

Thomas L. Root, Council Bluffs, for appellee.

Heard by MOORE, C.J., and REES, UHLENHOPP, REYNOLDSON and HARRIS, JJ.

REYNOLDSON, Justice.

This appeal requires us to determine the constitutionality of our criminal statute relating to dead bodies:

'714.22 Exposing dead bodies. If any person willfully and unnecessarily, and in an improper manner, indecently expose, throw away, or abandon any human body, or the remains thereof, in any public place, or in any river, stream, pond, or other place, he shall be imprisoned * * * or be fined * * *.'

A county attorney's information filed November 6, 1973 largely restated the statute by charging defendant

'Did willfully and unnecessarily, and in an improper manner, indecently expose, throw away, or abandon a human body, or the remains thereof in a hill behind the residence at 386 Lincoln, Council Bluffs, Iowa,'

in violation of § 714.22.

January 25, 1974, defendant filed her demurrer asserting § 714.22 'is too vague, incomplete, indefinite so as reasonable men would differ as to the strict construction of said statute, particularly the words used in the statute 'unnecessarily', 'improper manner' and 'indecently expose" in violation of the Iowa Constitution, Article I, section 9 and the United States Constitution, amendment 14.

On the same date trial court sustained the demurrer by order which stated, Inter alia:

'The Court, having tried a companion case to these matters and being familiar with the evidence that would be submitted herein, and having examined the minutes of the testimony relative to the charge involved * * *, believes that the evidence in this matter is to the effect that a fetus between 24 and 26 weeks of development was stillborn to one Deborah Belt. That at this time the defendants in the instant cases were present in the dwelling where this occurrence took place. That immediately thereafter, some of the parties present wrapped the fetus in a new blanket, placed it in a metal box and buried it in the back yard of the home * * *. That this occurred in January or February of 1972. That in October of 1973, the police received an anonymous telephone call * * * (and) * * * went to the area and dug up the metal box containing the fetus.'

Trial court then reasoned since the body remained buried for '18 or 19 months' defendant 'in no sense of the word' could be found guilty of exposing the body. Further, it concluded burial precluded conviction for throwing away or abandoning the body. Finally, it held the terms 'unnecessarily', 'in an improper manner' and 'indecently' were unconstitutionally vague.

Appealing, the State asserts trial court was in error in considering 'evidence' in ruling on defendant's demurrer, and erroneously determined § 714.22 was unconstitutionally vague.

I. It is apparent this demurrer basically alleged unconstitutionality of the statute on its face, and not as applied. See State v. Kueny, 215 N.W.2d 215, 217 (Iowa 1974) ('By way of exclusion, since this appeal stems from a judgment sustaining defendant's demurrer, our review is confined to alleged facial invalidity * * *'). Where a statute is thus subjected to a facial attack, the sole test of constitutionality is what May be done under its authority rather than what Was done. In re Henderson, 199 N.W.2d 111, 122 (Iowa 1972) (special concurrence by five justices); Chicago, Rock Island and Pacific R. Co. v. Liddle, 253 Iowa 402, 409, 112 N.W.2d 852, 856 (1962).

II. A careful study of trial court's order persuades us it did not consider evidence in ruling on the constitutional issue, but rather considered the circumstances alleged in the minutes attached to the information, and judicially noticed matters learned from a companion case, in determining burial of the fetus Precluded application of § 714.22.

It is obvious the order appealed from cannot be supported by this rationale. Matters alleged in the minutes are not part of the indictment or information. Any insufficiency therein will not serve as grounds for demurrer to the indictment. State v. Kobrock, 213 N.W.2d 481, 483 (Iowa 1973); State v. Salter, 162 N.W.2d 427, 431 (Iowa 1968); State v. Youngblut, 257 Iowa 343, 345, 132 N.W.2d 486, 487 (1965); see §§ 777.2, 777.5, The Code. A proper method to raise this issue would have been by motion for bill of particulars (§ 773.6) followed by a motion to set aside the information (§ 773.7). State v. Batchelor, 180 N.W.2d 457, 459 (Iowa 1970).

Moreover, it is generally impermissible for a trial court to take judicial notice of proceedings in a related but wholly different case. Johnson v. Johnson, 188 N.W.2d 288, 292--293 (Iowa 1971).

We agree with the State these matters were not before the court and could not furnish grounds for sustaining the demurrer.

III. We turn to the more troublesome issue, whether § 714.22 is unconstitutionally vague.

Applicable principles, with supporting authorities, were summarized in State v. Kueny, 215 N.W.2d 215 (Iowa 1974).

Regularly enacted statutes are accorded a strong presumption of constitutionality. Id. at 216.

When constitutionality is merely doubtful this court will not interfere as it must be shown that legislative enactments clearly, palpably and without doubt infringe upon constitutional rights before an attack will be upheld. Id. at 217.

Every reasonable basis of support for a statute must be negated by the attacking party. Id. at 217.

A statute is unconstitutionally vague, and thus offends due process, if it does not give a person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he may act accordingly. Id. at 217.

Terminology of a statute meets the constitutional test if its meaning is fairly ascertainable by reference to similar statutes, prior judicial determinations, reference to the dictionary, or if the questioned words have a common and generally accepted meaning. Id. at 217.

Defendant in this case made no constitutional attack on the words 'abandon' and 'throw away'. Apparently it was clear those words do have generally accepted meanings. Neither is a challenge made to the term 'willful' which, in the context of this statute, means an intentional act inconsistent with good faith and good intentions. Hawthorne v. Delano, 172 Iowa 44, 55, 152 N.W. 17, 20 (1915). Trial court's conclusion a broad reading of 'throw away' or 'abandon' might subject to prosection anyone burying a body ignores the judicially-recognized meaning of 'willful'.

We have already noted defendant's demurrer constitutionally attacked only the § 714.22 terms 'unnecessarily', 'improper manner' and 'indecently expose.'

The term 'unnecessarily' has not been judicially defined in Iowa. Black's Law Dictionary, p. 1707 (rev. fourth ed. 1968) defines 'unnecessary' as 'not required by the circumstances of the case.' Webster's Third New International Dictionary (1966) defines 'unnecessarily' as 'not by necessity' and 'necessity' as 'a condition arising out of circumstances that compels to a certain course of action.' The term has been defined to mean heedlessly and without necessity. St. Louis & S.F. R. Co. v. Franklin, 58 Tex.Civ.App. 41, 49, 123 S.W. 1150, 1155 (1909), and in a criminal prosecution has been held to be not so uncertain in meaning as to deprive an accused of due process. State v. Persons, 114 Vt. 435, 437, 46 A.2d 854, 856 (1946).

'Unnecessarily' is a term of common usage, has a generally accepted meaning, and clearly conveys a legislative intent to preclude from the ambit of § 714.22 prima facie violations compelled by the circumstances.

The second statutory phrase under scrutiny is 'improper manner.' The State appears to argue 'improper manner' in a § 714.22 context is treatment or disposition of a body contrary to the various reporting provisions of chapters 144 and 339, The Code. It is clear, however, these reporting sections could not serve to modify 'expose', 'throw away' or 'abandon' as the phrase 'in an improper manner' does. Nor is it evident the legislature designed § 714.22 to provide a criminal penalty for violation of the reporting statutes, which carry their own penalty. See §§ 144.53, 339.5, 339.13, The Code.

In State v. Graham, 203 N.W.2d 600, 603 (Iowa 1973) we said 'improperly' is a word of such ordinary usage and so generally understood as to permit but not require it to be instructionally defined. The same word in § 723.1, The Code ('Interference with administration of justice. If any person attempt in any manner to improperly influence, intimidate, impede, or obstruct any * * * officer * * *') withstood constitutional attack in State v. Hartung 239 Iowa 414, 428, 30 N.W.2d 491, 499 (1948), the court holding the term was not so 'indefinite' as to deprive defendant of due process under the federal and state constitutions.

As found in § 714.22 the phrase 'improper manner', when linked to the term 'willfully' and employed to assist in expressing a prohibition against throwing away or abandoning a human body in a public place or river, neither rises to crucial significance nor is so vague Per se as to deprive a person of ordinary intelligence a reasonable opportunity to know what is forbidden. The phrase as found in the statute Sub judice obviously takes its coloration from 'willfully' and carries the same connotation of intentional indignities inconsistent with good faith and good intentions. See Hawthorne v. Delano, supra.

We thus reach the final challenged phrase, 'indecently expose.' We are confronted of course with decisions holding the word 'indecent' unconstitutionally vague, the most recent being State v. Kueny, supra at 218, where we said:

'It may be that at one time words such as are here involved were deemed to have an ordinarily understandable...