State v. McNeal

• Decision Date: 06 May 1969
• Docket Number: No. 53167,53167
• Citation: 167 N.W.2d 674
• Parties: STATE of Iowa, Appellee, v. Don Evan McNEAL, Appellant.
• Court: Iowa Supreme Court

Page 674

167 N.W.2d 674

STATE of Iowa, Appellee, v. Don Evan McNEAL, Appellant.

No. 53167.

Supreme Court of Iowa.

May 6, 1969.

Harold B. Heslinga, Oskaloosa, for appellant.

Richard C. Turner, Atty. Gen., James C. Sell, Asst. Atty. Gen., and W. K. Cash, County Atty., for appellee.

LARSON, Justice.

Pursuant to a grand jury indictment of April 30, 1968, charging defendant Donald Evan McNeal with the crime of riotous conduct--injury to person or property, in violation of section 743.9 of the 1966 Code, trial was had on May 8, 1968. A jury verdict of guilty was returned and, when judgment sentencing him to the Men's Reformatory at Anamosa for a term not to exceed five years was entered on May 31st, he appealed.

It appears that defendant, along with several Albia young men, attacked and beat five young men from Centerville, Iowa, as they emerged from the Blue Bird Cafe in Albia in the early morning of April 13, 1968, that defendant assaulted Jack Shepherd, pulled Larry Wright from an automobile and beat and kicked him into a dazed or unconscious condition, damaged the window of the automobile with his fist, and struck a trucker Larry Stewart as he attempted to break up the fighting. The evidence revealed serious injuries resulted from these assaults.

Although appellant relies upon ten propositions for reversal, his principal contentions are (1) that section 743.9 of the Code is unconstitutional and his motion to dismiss filed May 4, 1968, was erroneously overruled; (2) that a witness Lois Davis was permitted to testify to conversations tending to prove premeditation which were not set forth in the minutes of testimony attached to the indictment; (3) that the court failed to properly instruct the jury and did not submit necessarily included offenses to the crime charged; and (4) that it failed to sustain defendant's motion for a new trial.

I. Section 743.9 of the 1966 Code of Iowa provides:

'If any person or persons, unlawfully or riotously assembled, pull down, injure, or destroy * * * any dwelling house or other building; * * * or perpetrate any premeditated injury on the person of another, not being a felony, he shall be imprisoned in the penitentiary not more than five years, or be fined not exceeding five hundred dollars and imprisoned in the county jail not more than one year, * * *.'

This section is a part of chapter 743 entitled 'Unlawful Assembly and Suppression of Riots.'

Section 743.2 defines riot as: 'When three or more persons together and in a violent or tumultuous manner commit an unlawful act, or together do a lawful act in an unlawful, violent, or tumultuous manner, to the disturbance of others, * * *.' The punishment upon conviction is fixed at not more than thirty days in jail or a fine of not exceeding one hundred dollars.

Section 694.1 of the 1966 Code provides: 'Whoever is convicted of an assault, or an assault and battery, where no other punishment is prescribed, shall be imprisoned in the county jail not exceeding thirty days, or be fined not exceeding one hundred dollars.'

In claiming that section 743.9, Code of 1966, is unconstitutional, appellant relies upon three principal grounds. They are, that the statute is vague and ambiguous in violation of Amendment 14, Section 1, of the Constitution of the United States, that it constitutes cruel and unusual punishment in violation of Amendment 8 of the Constitution of the United States and Article I, Section 17, of the Constitution of the State of Iowa, and that it is not uniform in operation in violation of Article I, Section 6, of the Constitution of the State of Iowa.

Statutory construction and interpretation is the exclusive function of the court and, in exercising that function, every reasonable presumption is indulged in favor of constitutionality. State v. Holt, Iowa, 156 N.W.2d 884, 889; State v. Halverson, Iowa, 155 N.W.2d 177, 182; Borden v. Selden, 259 Iowa 808, 146 N.W.2d 306, 310.

One who challenges legislation on constitutional grounds, of course, assumes the burden to negate every reasonable basis to sustain it. Iowa Natural Resources Council v. Van Zee, Iowa, 158 N.W.2d 111, 116; Green v. City of Mt. Pleasant, 256 Iowa 1184, 1196, 131 N.W.2d 5, 13; State v. Holt, supra; State v. Halverson, supra; State v. Di Paglia, 247 Iowa 79, 85, 71 N.W.2d 601, 604, 49 A.L.R.2d 1223.

Appellant maintains that the words 'not being a felony' used in this statute are confusing to men of common intelligence, that they necessarily involve an issue of fact as to the extent of the premeditated injury on the person of others, and that their use requires the State to prove this assault was no more than a simple assault. We find these contentions without merit.

Of course, penal laws and criminal statutes are not elastic and are to be strictly construed and not held to include charges plainly without the fair scope and intendment of the language of the statute, although within its reason and policy, and in event of any doubts they are to be resolved in favor of the accused. State v. Hill, 244 Iowa 405, 407, 57 N.W.2d 58, 59, and many citations. But we have often stated that if the language of a statute when given its plain and rational meaning is precise and free from ambiguity, no more is necessary than to apply to the words used their ordinary sense in connection with the subject considered. State v. Valeu, 257 Iowa 867, 869, 134 N.W.2d 911, 912, and many citations.

Lesser offenses in combination with each other may be designated by the legislative body as felonies, and punishment prescribed accordingly. Spies v. United States, 317 U.S. 492, 63 S.Ct. 364, 87 L.Ed. 418.

The punishment prescribed for unlawful assembly under section 743.2, and for simple assault under section 694.1, classify these unlawful acts as misdemeanors, not felonies. When such prohibited acts are combined, the resultant crime is designated by section 743.9 as a felony, prescribing punishment by imprisonment in the penitentiary. Our legislature so provided, even though premeditated injury inflicted upon the person of another, standing alone, might not constitute a felony. We do not understand appellant to contend the legislature may not do this by proper legislation so long as the statute is sufficiently clear and inclusive that men of common intelligence need not guess at its meaning.

The trial court had no difficulty with the meaning of the language used in section 743.9, and neither do we. It found the express intent of the legislature was to prescribe suitable punishment for a combination of two offenses. We also find no ambiguity in this section and hold section 743.9 provides felony punishment for violation of a combination of two offenses, which if separately committed may not amount to more than misdemeanors.

We are satisfied the legislature expressed its intent that the premeditated assault referred to in this section need not amount to a felony, and we do not find the punishment prescribed for this type of offense is disproportionate to the seriousness of the offense. In these days of mass demonstrations and riotous assaults on persons and property, no doubt that section of our code will receive more consideration by county attorneys and more use in dealing with this type of crime. Of course, spare prior use of this statute by State officers does not make it of nonuniform application.

Generally, the extent or duration of incarceration authorized by statute is not a manifestation of cruel and unusual punishment, but these terms are usually used in reference to the character of the punishment. 24B C.J.S. Criminal Law § 1978, pp. 551--552.

Since the legislature in its wisdom may provide a more severe punishment for a combination of offenses than for each offense standing alone, it is clear to us the punishment prescribed for this...