State v. Leonard

• Decision Date: 12 November 1963
• Docket Number: No. 50891,50891
• Parties: STATE of Iowa, Appellee, v. Gilbert LEONARD, Appellant.
• Court: Iowa Supreme Court

Page 429

124 N.W.2d 429

255 Iowa 1365

STATE of Iowa, Appellee, v. Gilbert LEONARD, Appellant.

No. 50891.

Supreme Court of Iowa.

Nov. 12, 1963.

K. L. Kober, Waterloo, for appellant.

Evan L. Hultman, Atty. Gen., Walter L. Saur, Fayette County Atty., and J. G. Johnson, Asst. County Atty., for appellee.

STUART, Justice.

Defendant was convicted of violating section 728.1 of the 1958 Code of Iowa, I.C.A., which provides:

'If any person publicly use blasphemous or obscene language, to the disturbance of the public peace and quiet, he shall be imprisoned in the county jail not exceeding thirty days, or be fined not exceeding one hundred dollars.'

In view of the trial court's findings, the evidence must be viewed in the light most favorable to the state. State v. Rutledge, 243 Iowa 179, 47 N.W.2d 251. Defendant called the city clerk of Oelwein over the telephone from his own home. The call was received in the clerk's private office which is a small room located in the northwest corner of the clerk's main office in the town hall of Oelwein. In the main office are two desks which form a counter and the public comes into this office to pay water bills, issue complaints and obtain information. Although there is no need for the public to go beyond the desks, they may enter the clerk's private office without permission. The door to the private office is open at all times unless there is a special conference going on. During the telephone conversation the defendant said to the clerk: 'I'll punch you in the nose, you son-of-a-bitch' and hung up. The defendant spoke so loudly the clerk had to hold the receiver away from his ear and this statement was heard by Mayor Lonborg who was sitting at the clerk's desk and Jeanette Alsip who was working out in the main office. No other persons were present at the time.

I. Defendant's principal contention is that this evidence is not sufficient to establish the elements of the offense created by section 728.1, 1958 code, I.C.A. Consideration of this argument requires us to interpret a statute which has not been before this court previously, although it has been in the code for more than 65 years. The minor nature of the offense does not make the issues less troublesome and we are handicapped by the lack of authorities in point from other jurisdictions.

To sustain the conviction there must be evidence which would support a finding that the defendant (1) used obscene language, (2) publicly, (3) 'to the disturbance of the public peace and quiet'. Defendant claims 'you son-of-a-bitch' is not obscene within the intent and meaning of section 728.1. In support of his position he quotes definitions of obscene which limit its meaning to matters which deal with sex 'in a manner appealing to the prurient interests'. He contends the words do not incite the hearers to lewd, lascivious and lustful thoughts and desires.

The rule is well settled that criminal statutes are to be strictly construed and should not be held to include charges which are not within the fair scope and intendment of the statute. State v. Hill, 244 Iowa 405, 57 N.W.2d 58, and citations. We are not required by this rule to apply the narrowest definitions given in the dictionaries to the words used in the statutes. If other accepted and approved definitions seem to have been the sense in which the legislature intended to use the words, they may be considered without violating the rule.

We have quoted, with approval in Kuhn v. Kuhn, 125 Iowa 449, 452, 101 N.W. 151 and State v. Hill, supra, the statement of Chief Justice Marshall in the case of United States v. Wiltberger, 5 Wheat. 76, 5 L.Ed. 37, in which he said:

'* * * though penal laws are to be construed strictly, they are not to be construed so strictly as to defeat the obvious intention of the legislature. The maxim is not to be so applied as to narrow the words of the statute to the exclusion of cases which those words, in their ordinary acceptation, or in that sense in which the Legislature has obviously used them, would comprehend. The intention of the Legislature is to be collected from the words they employ. Where there is no ambiguity in the words, there is no reason for construction. The case must be a strong one, indeed, which would justify a court in departing from the plain meaning of the words, especially in a penal act, in search of an intention which the words themselves did not suggest. To determine that a case is within the intention of a statute, its language must authorize us to say so. It would be dangerous, indeed, to carry the principle that a case which is within the reason or mischief of a statute is within its provisions so far as to punish a crime not enumerated in the statute because it is of legal atrocity or of kindred character with those which are enumerated.'

Webster's Third New International Dictionary contains the following definition of obscene: '2: ofensive or revolting as countering or violating some ideal or principle: as * * * b: marked by violation of accepted language inhibitions and by the use of words regarded as taboo in polite usage * * *.'

Black's Law Dictionary, 4th Edition contains the following definition: 'Offensive to chastity of mind or to modesty, expressing or presenting to the mind or view something that delicacy, purity, and decency forbids to be expressed; offensive to modesty, decency, or chastity; impure, unchaste, indecent, lewd, offensive to senses; repulsive; disgusting; foul; * * *.' We must therefore look at the wording of the statute to determine which definition the legislature intended to apply to the term obscene.

This particular statute, by its very wording, seeks to protect the public peace rather than public morals. It is not found in Chapter 725 of the Code of Iowa, I.C.A., which deals with matters of obscenity and indecency as they affect the public morals by appealing to the prurient sexual interests. Many words and expressions which do not fit within the limited meaning urged by the defendant tend to incite the hearers to conduct likely to disturb the public peace. Few terms have provoked more violent reactions or triggered more affrays than the term applied to the complainant by the defendant. Its use is often considered an open invitation to a fight. We believe the legislature of the late 1800's intended to include s-o-b and other similar abusive, insulting, disgusting and revolting terms among the prohibitions of the statute. If we were to say it is not within the meaning of obscene, a person, with impunity, could publicly announce that 'so and so is an s.o.b' or walk down the street applying the term indiscriminately to every passerby. The more inclusive definition of obscene conforms more closely to the purpose of the statute. 'Son of a bitch' has been held to be obscene in Texas, Darnell v. State, 72 Tex.Cr.R. 271, 161 S.W. 971. We intimated we so considered the term in town of Neola v. Reichart, 131 Iowa 492, 109 N.W. 5. We need not consider if the phrase is lewd or lascivious although in Bailey v. Bailey (1895) 94 Iowa 598, 601, 63 N.W. 341, 342, this court said: 'The word 'bitch' is synonomous with 'wench' or 'hussy,' and often implies lewdness.'

II. Defendant contends the words uttered over the phone in a call from defendant's home to the city clerk's private office were not used publicly. The fact that the phone call originated in the defendant's home is unimportant. The offense is determined by the public or private nature of the place where the call is received or the words heard. The Supreme Court of South Carolina expressed this thought in the case of State v. Byrnes, 100 S.C. 230, 84 S.E. 822, in which they said: 'The 'castle' is given to a man for defense, and not for offense. It would be a hurtful and unreasonable doctrine to hold that a man may utter profanity of a loud and boisterous nature from his own storeroom, and yet be not amenable to the public therefor. If the utterer does remain in the room, the utterance does not; and if is the offense.'

We need not decide whether the clerk's private office was a public place under these facts, for the evidence is that defendant spoke so loudly that a witness working in the main office, which is without question open to the public, overheard the conversation and the obscene words of the defendant. The clerk's office is a public place and the words were heard and understood by a person in this office.

III. Defendant also contends the state did not show public peace and quiet were disturbed. He claims the language is not sufficient unless accompanied by threat of immediate violence and there was no such threat because the words were spoken over the telephone from a distance. At common law such threats were necessary, 11 C.J.S. Breach of the Peace § 1, p. 817; 48 A.L.R. 84. However, many states have adopted statutes varying greatly in form and content which have been held to make the use of spoken words a criminal offense under differing circumstances. Some are general statutes making breach of peace an offense, some make it unlawful to use threatening or quarrelsome language, some prohibit words calculated or tending to cause a breach of the peace and others, including Iowa specify vulgar, profane, obscene, insulting, blasphemous and similar words. The Iowa statute also provides that such language shall be used 'to the disturbance of the public peace and quiet'. This does not mean that such language must be accompanied by threats of immediate violence.

Public peace is defined as that ...