State v. Gardner, Nos. 30032

CourtUnited States State Supreme Court of Iowa
Writing for the CourtSALINGER
Citation174 Iowa 748,156 N.W. 747
PartiesSTATE v. GARDNER. STATE v. DEVINEY.
Docket Number30033.,Nos. 30032
Decision Date14 March 1916

174 Iowa 748
156 N.W. 747

STATE
v.
GARDNER.
STATE
v.
DEVINEY.

Nos. 30032, 30033.

Supreme Court of Iowa.

March 14, 1916.


Appeal from District Court, Plymouth County; William D. Boies, Judge.

Defendant appeals from a conviction on the charge that he resorted to a house of ill fame for the purpose of prostitution and lewdness. Reversed and remanded.

[156 N.W. 748]

T. M. Zink, of Le Mars, for appellant.

K. E. Sallman and Miles & Steele, all of Corydon, amici curiæ.


George Cosson, Atty. Gen., and Wiley S. Rankin, Special Counsel, of Des Moines, for the State.

SALINGER, J.

[1] I. The statute (Code, § 4943) makes it a crime to resort to a house of ill fame “for the purpose of prostitution.” We have to determine whether the trial court erred in holding that both men and women are within this statute. While in a broad sense “prostitution” means “the setting one's self to sale or of devoting to infamous purposes what is in one's power,” it will not be questioned that the word is in this statute used in a narrower sense, and is there the equivalent of sexual prostitution. Such prostitution is the conduct of a prostitute as such.

“An allegation in an indictment that a female was enticed away with the intent of rendering her a prostitute is equivalent to an allegation that it was done for the purpose of prostitution.” Nichols v. State, 127 Iowa, 406, 26 N. E. 839.

A “prostitute” is “a woman who practices illicit intercourse with men for hire” (Worcester's Dict; Zimmerman v. McMakin, 22 S. C. 372, 53 Am. Rep. 722;Sheehey v. Cokley, 43 Iowa, 185, 22 Am. Rep. 236); one “who prostitutes her body for hire” (Peterson v. Murray, 13 Ind. App. at page 423, 41 N. E. at page 837); a “female” given to indiscriminate lewdness or promiscuous sexual intercourse for gain (Carpenter v. People [N. Y.] 8 Barb. 603, 611;State v. Stoyell, 54 Me. 24, 89 Am. Dec. 716;Davis v. Sladden, 17 Or. 259, 21 Pac. 140, 142). “Prostitution” in its more restricted sense is the practice of

[156 N.W. 749]

a female offering her body to an indiscriminate intercourse with men. State v. Stoyell, 54 Me. 24, 89 Am. Dec. 716;Haygood v. State, 98 Ala. 61, 13 So. 325;State v. Goodwin, 33 Kan. 538, 6 Pac. 899, 901;Fahnestock v. State, 102 Ind. 156, 1 N. E. 372;Osborn v. State, 52 Ind. 526, 528;Miller v. State, 121 Ind. 294, 23 N. E. 94, 95;State v. Brow, 64 N. H. 577, 15 Atl. 216, 217;Carpenter v. People, 8 Barb. (N. Y.) 603, 610;State v. Toombs, 79 Iowa, 741, 45 N. W. 300;State v. Ruhl, 8 Iowa, 447, 453;Commonwealth v. Cook, 53 Mass. (12 Metc.) 93, 97;People v. Demousset, 71 Cal. 611, 12 Pac. 788, 789. It is the act or practice of prostituting or offering the body to an indiscriminate intercourse with men; common lewdness of a woman for gain; the act of permitting a common and indiscriminate sexual intercourse for hire--and it is said same is considered a heinous offense “for which the woman may be punished.” 2 Bouvier's Dictionary (Rawle) p. 785. And see State v. Gibson, 111 Mo. 92, 19 S. W. 981;Bunfill v. People, 154 Ill. 640, 39 N. E. at 566; and Century Dictionary. While cases hold there may be prostitution though there be no desire for gain (State v. Clark, 78 Iowa, 492, 43 N. W. 273;State v. Rice, 56 Iowa, 431, 9 N. W. 343;State v. Thuna, 59 Wash. 689, 109 Pac. 331, 111 Pac. 768, 140 Am. St. Rep. 902), all that speak on the point agree that it is the practice of a woman only.

[2] It follows that both “prostitute” and “prostitution” have such a fixed meaning in the approved usage of the language and such peculiar and appropriate meaning in law as that, if we give effect to such meaning, the statute in question does not contemplate that a man can be a prostitute or can practice prostitution, and does not intend to punish him for what he cannot do; for one cannot purpose to do what he knows is impossible. If a man cannot commit prostitution, he cannot go to a place for the purpose of prostitution. Having acquired such meaning, and we having ascertained “what is the appropriate and well-authorized meaning of the term,” we should hold that “in this sense the Legislature is supposed to have used it.” State v. Ruhl, 8 Iowa, 453. The terms “prostitution” and “lewdness,” as used in the statute, are by a general rule of construction to be construed according to their most usual and best-understood signification. Bunfill v. People, 154 Ill. 640, 39 N. E. 566;Fahnestock v. State, 102 Ind. 156, 1 N. E. 376. And see, also, Commonwealth v. Cook, 12 Metc. (Mass.) at 97.

[3] 2. Since the statute does not, in terms, include men, we need not and do not pass upon whether the Legislature could effectively declare that men can be guilty of “prostitution.” We may for the purposes of the argument assume such power exists. Thus we reach the question whether, though it was well understood that prostitution was the act of a woman, the Legislature intended section 4943 to include men. The trial court charged such was the intention. It said that, though “when we use the word ‘prostitute,’ we mean a woman, and [[[[though] prostitution is legally defined as the act or practice of offering the body to indiscriminate intercourse with men,” yet this section of the Code does “include men as well as women,” because it uses the words “prostitution or lewdness.” The position of appellee is that the statute includes men because it makes it a crime “for any person” to resort to a house of ill fame for the purpose of prostitution. The view expressed by the trial judge simply begs the question. It is a declaration that, though the Legislature, which imposes a punishment for resorting for the purpose of prostitution, knew prostitution is the conduct of none but women, and though the punishment provided can have effect as to women, the very use of the word “prostitution” proves the punishment was intended to apply to men.

[4] As to the position of appellee, while it is true that ordinarily the words “any person” include both men and women, this is not always so. As in all other cases, the rule of reason controls as to the interpretation of these words.

Section 4756 punishes rape upon a female committed by “any person.” Literally construed, these words would authorize a woman, or the husband of a woman assaulted, to be punished for rape, as principals. And so of section 4758, which prohibits “any person” to have carnal knowledge of “any female” imbecile or rendered insensible; and since a four year old child is a “person” (Sutton v. State, 122 Ga. 158, 50 S. E. 61), such child could, on the theory of appellee, be guilty of rape, or of carnal knowledge of an imbecile, or of a woman by it rendered insensible. No court would so interpret “any person.” If it were claimed that a statute like section 4762, which makes it a crime for “any person” to seduce or debauch a female, contemplated a seduction and debauchment by a female, it would be held that “any person” should not be so construed, because it must be assumed the Legislature believed a woman could not commit the offense. If the claim were that the words included all who entered a dwelling in the nighttime by means of any breaking, it would be held they did not include the owner of such dwelling, not because the owner could not thus enter, but because the Legislature could not in reason have intended to include him. But, whether the words are held not to include some person because the Legislature knew he could not commit what is forbidden, or because it is clear for some other reason that it could not have been intended to include him in the general words, the rule of construction to be deduced from either or both

[156 N.W. 750]

cases is to exclude him, if it be clear for any reason that it was not intended to include him. We think the point within this rule. The Legislature knew “prostitution” was generally understood to be something that men could not, and women could, be guilty of, and that this interpretation was settled in law. It used the word in the settled sense, and “any person” to avoid repetition. The statute forbids: (1) Resort to a house of ill fame for the purpose of prostitution; (2) for the purpose of lewdness; (3) using such house for prostitution; (4) occupying such house for such purpose; (5) inhabiting such house for such purpose; (6) using such house for the purpose of lewdness; (7) occupying same for such purpose; (8) inhabiting same for such purpose. The Legislature knew it was matter of common knowledge that some of these can be committed by both men and women, and some by women only. It therefore refrained from labeling four of these as applying to women only. In the light of this, it is plain that “any person” was intended to mean “any person who can be guilty of any of these”; that the purpose was to save words regarded as needless, rather than to enlarge a class of offenders. In effect, the statute is within the reasoning of cases like State v. Cooster, 10 Iowa, 453, and State v. Brandt, 41 Iowa, 593. It is its purpose to enable the state to indict in the alternative, to charge an offense that can be committed by men and women, or by men or women, or by women alone--not to permit men to be punished for what all understood they could not do. It is against reason, so long as any other explanation can be found, to suppose that a Legislature which knew that all persons believed prostitution could not be practiced by a man intended to declare that it could, and omitted to put so radical an innovation into unmistakable language. No statute that imposes a five-year imprisonment in the penitentiary should be construed to work such a change unless its words compel such interpretation.

[5] When section 4943 was enacted it was settled that men could not be guilty of prostitution. Hence they did not become punishable for prostitution unless this was effected by enacting that statute. We said in Caster v. McClellan, 132 Iowa, at page 505, 109 N. W. at page 1021:

“The general rule is, however, that words must be construed according to...

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25 practice notes
  • Schooley v. Schooley, No. 31800.
    • United States
    • United States State Supreme Court of Iowa
    • October 25, 1918
    ...have a statute prohibiting the resort by any person for the purposes of “prostitution.” But we held in State v. Gardner, 174 Iowa, 748, 156 N. W. 747, L. R. A. 1916D, 767, Ann. Cas. 1917D, 239, that, since females only may be prostitutes, a male cannot resort for the purpose of “prostitutio......
  • Ex Parte Amos
    • United States
    • United States State Supreme Court of Florida
    • January 11, 1927
    ...384, 81 N.E. 62; State ex rel. Shanks v. Board of Com'rs of Carroll County, 162 Ind. 183, 70 N.E. 138; State v. Gardner, 174 Iowa, 748, 156 N.W. 747, L. R. A. 1916D, 767, Ann. Cas. 1917D, 239; Commonwealth v. Rice, 9 Metc. (Mass.) 253; [93 Fla. 16] State v. Wade, 267 Mo. 249, 183 S.W. 598; ......
  • Jacobs v. City of Chariton, No. 48430
    • United States
    • United States State Supreme Court of Iowa
    • July 26, 1954
    ...173 Iowa 638, 640, 155 N.W. 961, a prosecution for keeping a disorderly house in violation of a city ordinance. In State v. Gardner, 174 Iowa 748, 768, 156 N.W. 747, 755, L.R.A. 1916D, 767, Ann.Cas. 1917D, 239, the defendant was charged with resorting to a house of ill fame for the purpose ......
  • Farmers' Sav. Bank of Morrison v. Jameson, No. 29825.
    • United States
    • United States State Supreme Court of Iowa
    • April 10, 1916
    ...ordinary rules of construction in tort, or, rather, in determining how a statute forbidding a tort should be construed. State v. Gardner, 156 N. W. 747, involves how the words “any person” should be construed when found in a statute which makes it a felony to resort to a house of ill fame f......
  • Request a trial to view additional results
25 cases
  • Schooley v. Schooley, No. 31800.
    • United States
    • United States State Supreme Court of Iowa
    • October 25, 1918
    ...have a statute prohibiting the resort by any person for the purposes of “prostitution.” But we held in State v. Gardner, 174 Iowa, 748, 156 N. W. 747, L. R. A. 1916D, 767, Ann. Cas. 1917D, 239, that, since females only may be prostitutes, a male cannot resort for the purpose of “prostitutio......
  • Ex Parte Amos
    • United States
    • United States State Supreme Court of Florida
    • January 11, 1927
    ...384, 81 N.E. 62; State ex rel. Shanks v. Board of Com'rs of Carroll County, 162 Ind. 183, 70 N.E. 138; State v. Gardner, 174 Iowa, 748, 156 N.W. 747, L. R. A. 1916D, 767, Ann. Cas. 1917D, 239; Commonwealth v. Rice, 9 Metc. (Mass.) 253; [93 Fla. 16] State v. Wade, 267 Mo. 249, 183 S.W. 598; ......
  • Jacobs v. City of Chariton, No. 48430
    • United States
    • United States State Supreme Court of Iowa
    • July 26, 1954
    ...173 Iowa 638, 640, 155 N.W. 961, a prosecution for keeping a disorderly house in violation of a city ordinance. In State v. Gardner, 174 Iowa 748, 768, 156 N.W. 747, 755, L.R.A. 1916D, 767, Ann.Cas. 1917D, 239, the defendant was charged with resorting to a house of ill fame for the purpose ......
  • Farmers' Sav. Bank of Morrison v. Jameson, No. 29825.
    • United States
    • United States State Supreme Court of Iowa
    • April 10, 1916
    ...ordinary rules of construction in tort, or, rather, in determining how a statute forbidding a tort should be construed. State v. Gardner, 156 N. W. 747, involves how the words “any person” should be construed when found in a statute which makes it a felony to resort to a house of ill fame f......
  • Request a trial to view additional results

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