State v. Beckner

• Decision Date: 13 May 1924
• Docket Number: No. 35422.,35422.
• Citation: 197 Iowa 1252,198 N.W. 643
• Parties: STATE v. BECKNER.
• Court: Iowa Supreme Court

197 Iowa 1252

198 N.W. 643

STATE

v.BECKNER.

No. 35422.

Supreme Court of Iowa.

May 13, 1924.

Appeal from District Court, Fayette County; W. J. Springer, Judge.

The defendant was convicted of the crime of having carnal knowledge of a female naturally of imbecility of mind. Reversed.Loren Risk, of Minneapolis, Minn., E. J. O'Connor, of Oelwein, and E. S. Thayer, of Des Moines, for appellant.

Ben J. Gibson, Atty. Gen., Maxwell A. O'Brien, Asst. Atty. Gen., and J. D. Cooney, Co. Atty., of West Union, for the State.

FAVILLE, J.

The appellant challenges the competency of the prosecuting witness.

[1] The question of the competency of a witness is one for the court, and may be determined by examining him on his voir dire or by extrinsic evidence. James v. Fairall, 168 Iowa, 427, 148 N. W. 1029;Campbell v. Campbell, 130 Ill. 466, 22 N. E. 620, 6 L. R. A. 167;State v. Crouch, 130 Iowa, 478, 107 N. W. 173.

Code, § 4601, provides:

“Every human being of sufficient capacity to understand the obligation of an oath is a competent witness in all cases, except as otherwise declared.”

[2] No objection was made at the time the witness was offered, and she testified at length without any objection to her competency as a witness. Appellant was fully advised that the prosecutrix would be used as a witness, and was in a position to challenge her competency as a witness when she was offered as such. Having failed to do so, the objection to the competency of the witness will be deemed waived. State v. Hurd, 101 Iowa, 391, 70 N. W. 613;State v. Marshall, 105 Iowa, 38, 74 N. W. 763;State v. O'Malley, 132 Iowa, 696, 109 N. W. 491.

[3] The determination of the question of the competency of a witness by the trial court will not be reversed on appeal unless an abuse of discretion is shown in any event. State v. Meyer, 135 Iowa, 507, 113 N. W. 322, 124 Am. St. Rep. 291, 14 Ann. Cas. 1;State v. Gregory, 148 Iowa, 152, 126 N. W. 1109. We fail to find that there was any abuse of the discretion lodged in the trial court in this matter.

II. Appellant complains that the cross-examination of the prosecuting witness was too closely confined by the trial court. We have examined the record. We are not satisfied therefrom that the trial court abused its discretion in limiting the cross-examination as was done. A great latitude was properly allowed, and we do not think the cross-examination was unduly limited. No such abuse of discretion is shown as would justify interference on our part. State v. Chingren, 105 Iowa, 169, 74 N. W. 946;State v. Brandenberger, 151 Iowa, 197, 130 N. W. 1065;State v. Burris, 194 Iowa, 628, 635, 190 N. W. 38.

[4] III. Appellant was sentenced by the court to serve a term of imprisonment during his natural life. Appellant is 41 years of age, a married man, and the father of seven children, one of whom is married, and the others live at home. It is unnecessary that we set out the revolting details of the transaction involved in this case. The jury were warranted in finding appellant guilty of the crime charged. The punishment inflicted is severe. The matter of its review and the consideration of extenuating circumstances, if any exists, should be presented to the executive department. We do not feel that under the record in this case we would be warranted in interfering with the sentence imposed.

[5] IV. This action is brought under Code, § 4758, which provides that upon conviction under said section the defendant “shall be punished as provided in the section relating to ravishment.” The section then existing in the statute relating to ravishment was section 4756, which provided for punishment by imprisonment in the penitentiary for life or any term of years. The Thirty-Ninth General Assembly, by chapter 192, repealed section 4756 of the Code, and enacted a new section in respect to ravishment, and provided the same penalty therefor as in the former statute. This statute took effect July 4, 1921. The crime for which appellant was indicted was committed August 23, 1922. The contention of appellant is that under said state of facts there was no provision of the law in 1922 fixing any penalty for the crime of which appellant is charged. This contention of appellant cannot be sustained.

The following rule of statutory construction is stated in 2 Lewis' Sutherland, Statutory Construction (2d Ed.) pp. 787-789, § 405:

“Where one statute adopts the particular provisions of another by specific and descriptive reference to the statute or provisions adopted, the effect is the same as though the statute or provisions thereof had been incorporated bodily into the adopting statute. When so adopted, only such portion is in force as related to the particular subject of the adopting act, and as is applicable thereto. Such adoption takes the statute as it exists at the time of adoption and does not include subsequent additions or modifications of the statute so taken unless it does so by express intent. * * * The effect may be thus comprehensively stated: Where a statute is incorporated in another, the effect is the same as if the provisions of the former were re-enacted in the latter, for all the purposes of the latter statute. * * *

There is another form of adoption wherein the reference is not to any particular statute or part of a statute, but to the law generally which governs a particular subject. The reference in such case means the law as it exists from time to time or at the time the exigency arises to which the law is to be applied.”

See State ex rel. v. Leich (1906) 166 Ind. 680, 78 N. E. 189, 9 Ann. Cas. 302;Quality Clothes Shop v. Keeney, 57 Ind. App. 500, 106 N. E. 541;Fitzgerald v. Lewis, 164 Mass. 495, 41 N. E. 687;Culver v. People ex rel., 161 Ill. 89, 43 N. E. 812;Jones v. Dexter, 8 Fla. 276;Kugler's Appeal, 55 Pa. 123;Cole v. Wayne Circuit Judge, 106 Mich. 692, 64 N. W. 741;City of St. Louis v. Gunning Co., 138 Mo. 347, 39 S. W. 788;Pittsburgh, C., C. & St. L. Ry. Co. v. James, 64 Ind. App. 456, 114 N. E. 833;State v. Caseday, 58 Or. 429, 115 Pac. 287;Crohn v. Telephone Co., 131 Mo. App. 313, 109 S. W. 1068;Skelton v. City of Newberg, 76 Or. 126, 148 Pac. 53;Hutto v. Walker County, 185 Ala. 505, 64 South. 313, Ann. Cas. 1916B, 372, and note; Vallejo, etc., R. Co. v. Reed, etc., Co., 177 Cal. 249, 170 Pac. 426;State v. Ganong, 93 Or. 440, 184 Pac. 233;Darmstaetter v. Moloney, 45 Mich. 621, 8 N. W. 574;Schlaudecker v. Marshall, 72 Pa. 200;United States v. Paul, 6 Pet. 141, 8 L. Ed. 348;Kendall v. U. S., 12 Pet. 524, 9 L. Ed. 1181;Nunes v. Wellisch, 12 Bush (Ky.) 363;In re Main St., 98 N. Y. 454;State v. Davis, 22 La. Ann. 77;Evans et al. v. Illinois Surety Co., 298 Ill. 101, 131 N. E. 262;People v. Crossley, 261 Ill. 78, 103 N. E. 537;Gaston v. Lamkin, 115 Mo. 20, 21 S. W. 1100;Snell v. City of Chicago, 133 Ill. 413, 24 N. E. 532, 8 L. R. A. 858.

The Legislature in fixing the punishment adopted by reference the punishment provided in section 4756 for the crime of ravishment. If there had been no section in the statute providing any punishment for ravishment it would follow that no penalty would be provided for the crime in this case. But there was such punishment provided for in the section on ravishment. The statute therefore became operative and valid. The punishment as provided in the section relating to ravishment has remained unchanged. In other words, there has at all times been a section in the statute on ravishment fixing an unchanged punishment. The section on ravishment and the section on carnal knowledge of an imbecile are in the same chapter and refer to the same general subject-matter. The evident purpose and intent of the Legislature was to make the punishment identical for the two offenses. This it did by adoption in the manner set out. This we think was sufficient, and the statute is not subject to the claim that it does not provide any punishment for the offense.

[6] V. The court gave the jury the following instruction:

“Maggie Steffens was sworn and examined as a witness. She was a competent witness, and it is for you to determine the weight to be given to her evidence. You will take into consideration her appearance and actions while on the stand, her means of knowledge and whether or not she is corroborated by other evidence which you believe. Take all these things into consideration and then give her evidence such weight as you believe it entitled to.”

The only exception to this instruction is as follows:

“Defendant excepts to paragraph 13...