State v. Gardner, 30032

CourtUnited States State Supreme Court of Iowa
Writing for the CourtSALINGER, J.
Citation156 N.W. 747,174 Iowa 748
PartiesSTATE OF IOWA, Appellee, v. JAMES GARDNER, Appellant. STATE OF IOWA, Appellee, v. JAMES DEVINNEY, Appellant
Docket Number30032,30033
Decision Date14 March 1916

156 N.W. 747

174 Iowa 748

STATE OF IOWA, Appellee,
v.

JAMES GARDNER, Appellant.

STATE OF IOWA, Appellee,
v.

JAMES DEVINNEY, Appellant

No. 30032, 30033

Supreme Court of Iowa, Des Moines

March 14, 1916


Appeal from Plymouth District Court.--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.

Reversed and Remanded.

T. M. Zink, for appellant.

K. E. Sallman and Miles & Steele, Amici Curiae.

George Cosson, Attorney General, Wiley S. Rankin, Special Counsel for the State.

SALINGER, J. EVANS, C. J., LADD and GAYNOR, JJ., concur.

OPINION [156 N.W. 748]

[174 Iowa 751] SALINGER, J.

I.

The statute, Code Sec. 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 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, (Ind.) 127 Ind. 406, 26 N.E. 839.

A prostitute is "a woman who practices illicit intercourse with men for hire." (Worcester's Dictionary; Zimmerman v. McMakin, (S. C.) 53 Am. Rep. at 720; Sheehey v. Cokley, 43 Iowa 183, at 185); one "who prostitutes her body for hire" (Peterson v. Murray, (Ind.) 41 N.E. 836, at 837); a "female" given to indiscriminate lewdness or promiscuous sexual intercourse for gain (Carpenter v. People, 8 Barb. [N.Y.] 603, 611; State v. Stoyell, [Me.] 89 Am. Dec. 716; Davis v. Sladden, [Ore.] 17 Ore. 259, 21 P. 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; Haygood v. State, (Ala.) 98 Ala. 61, 13 So. 325; State v. Goodwin, (Kans.) 33 Kan. 538, 6 P. 899, 901; Fahnestock v. State, (Ind.) 102 Ind. 156, 1 N.E. 372; Osborn v. State, 52 Ind. 526, 528; Miller v. State, (Ind.) 121 Ind. 294, 23 N.E. 94, 95; State v. Brow, (N. H.) 64 N.H. 577, 15 A. 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. 93, 97; People v. Demousset, (Cal.) 71 Cal. 611, 12 P. 788, 789. It is the act or practice of prostituting or offering the body to an indiscriminate intercourse with men; common [174 Iowa 752] lewdness of a woman for gain; the act of permitting a common and indiscriminate sexual intercourse for hire--and it is said that 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, (Mo.) 19 S.W. 980, at 981; Bunfill v. People, (Ill.) 39 N.E. 565 at 566; and Century Dictionary. While cases hold that 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, [Wash.] 59 Wash. 689, 109 P. 331), all that speak on the point agree that it is the practice of a woman only.

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. The words 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 at 453. The terms "Prostitution" and "lewdness," as used in the statutes, are, by a general rule of construction, to be construed according to their most usual and best understood signification. Bunfill v. People, (Ill.) 39 N.E. 565 at 566; Fahnestock v. State, (Ind.) 1 N.E. at 376. And see, also, Commonwealth v. Cook, 12 Metc. (Mass.) 93, at 97.

2.

Since the statute does not, in terms, include men, we need not and do not pass upon whether the legislature could effectively [174 Iowa 753] declare that men can be guilty of "prostitution." We may, for the purposes of the argument, assume that 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 that 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 that 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 that the punishment was intended to apply to men.

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, Code, 1897, 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 Code 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, (Ga.) 50 S.E. 60, at 61,--such child could, on the [174 Iowa 754] 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 Code Section 4762, which makes it a crime for "any person" to seduce and debauch a female, contemplated a seduction and detachment by a female, it would be held that "any person" should not be so construed, because it must be assumed that 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 that 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 that "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) resort thereto for the purpose of lewdness; (3) using such house for prostitution; (4) occupying such house with 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 that it was a 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 [174 Iowa 755] "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. When Section 4943 was enacted, it was...

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1 practice notes
  • State v. Frey, 39274
    • United States
    • United States State Supreme Court of Iowa
    • October 23, 1928
    ...to the indictment, has waived the objection he is now seeking to urge by motion in arrest of judgment. What is said in State v. Gardner, 174 Iowa 748, 156 N.W. 747, and State v. Burns, 190 Iowa 6, 179 N.W. 843, and any other of our previous cases, contrary to the foregoing, is hereby overru......
1 cases
  • State v. Frey, 39274
    • United States
    • United States State Supreme Court of Iowa
    • October 23, 1928
    ...to the indictment, has waived the objection he is now seeking to urge by motion in arrest of judgment. What is said in State v. Gardner, 174 Iowa 748, 156 N.W. 747, and State v. Burns, 190 Iowa 6, 179 N.W. 843, and any other of our previous cases, contrary to the foregoing, is hereby overru......

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