State v. Rayburn
| Decision Date | 18 June 1915 |
| Docket Number | 30494 |
| Citation | 153 N.W. 59,170 Iowa 514 |
| Parties | THE STATE OF IOWA, Appellee, v. HARRY RAYBURN, Appellant |
| Court | Iowa Supreme Court |
Appeal from Wayne District Court.--HON. H. K. EVANS, Judge.
THE defendant was charged with resorting to a house of ill fame for the purpose of lewdness. He was convicted by a jury, and judgment pronounced. From this judgment he appeals.
Affirmed.
K. E Sallman and Miles & Steele, for appellant.
George Cosson, Attorney General, and John Fletcher, Assistant Attorney General, for appellee.
The indictment is in this form:
"The Grand Jury of the County of Wayne, in the name and by the authority of the State of Iowa, accuse Harry Rayburn of the crime of resorting to a house of ill fame for the purpose of lewdness, committed as follows: The said Harry Rayburn, on or about the 28th day of September, in the year of our Lord one thousand nine hundred and fourteen, in the county aforesaid, did then and there wilfully, unlawfully and feloniously resort to and use, for the purpose of lewdness, a certain house of ill fame kept by Ollie Witt, said house of ill fame being then and there situated in the County of Wayne and the State of Iowa, contrary to the statutes in such case made and provided, and against the peace and dignity of the State of Iowa."
It was admitted of record that the defendant is a male person. Defendant was tried to a jury and found guilty, but no part of the evidence is set out in the abstract. The abstract recites that the testimony of witnesses was largely taken on the part of the State and of the defendant, but appellant omits the same for the reason that none of the testimony is necessary or material to any of the issues and questions raised. The instructions are not before us. At all stages of the trial, first by demurrer to the indictment, and later by a motion to direct a verdict for the defendant, motion to set aside the verdict, and motion in arrest of judgment, the defendant contended, substantially, that the words "any person" in Sec. 4943 of the Code, under which the indictment was found, did not apply to and include a male person, but only included a female person; also on the ground that the indictment did not take any specific act of lewdness for which it was alleged that the defendant resorted to and used said house of ill fame. The trial court ruled against the defendant on these propositions.
1. Sec. 4943 of the Code reads:
"If any person, for the purpose of prostitution of lewdness, resorts to, uses, occupies or inhabits any house of ill fame or place kept for such purpose, or if any person be found at any hotel, boarding house, cigar store or other place, leading a life of prostitution or lewdness, such person shall be imprisoned in the penitentiary not more than five years."
It is contended by appellant, and it is conceded by the State, that a man may not be guilty of prostitution. The indictment in this case does not charge defendant with resorting to a house of ill fame for the purpose of prostitution, but does charge that he resorted to the place for the purpose of lewdness. But it is said by defendant that the words prostitution or lewdness in the statute are synonymous, and that the word "person" refers only to a female person; that a male person cannot be guilty of prostitution, or resorting to a house of ill fame for that purpose.
If "prostitution" and "lewdness" are synonymous, it would have been unnecessary to use but one of the words. There was presumably some reason for using both. The statute reads that, if "any person," for the purpose of prostitution or lewdness, resorts, etc. If a man and woman go together to or resort to a house of ill fame for the purpose of having sexual intercourse, her purpose would be for prostitution, his for lewdness. Or a man could go by himself for the purpose of having sexual intercourse, which would be lewdness under this statute and under definitions hereafter given. Or a man could resort to such a place and be guilty of lewdness without sexual intercourse. Lewdness may not import criminal indulgence, but is generally used as indicating gross indecency with respect to the sexual relations. State v. Mitchell, 149 Iowa 362, 366, 128 N.W. 378. Sexual intercourse would, of course, constitute lewdness; but, as suggested, there may be lewdness without sexual intercourse at all, and the man, as well as the woman, may be guilty of it. We think the statute broad enough to cover situations such as those suggested. The purpose of the legislature was to suppress such conduct and reach both parties. We think the statute fairly and reasonably bears that construction. The words "any person" include all persons. Words and phrases shall be construed according to the context and the approved usage of the language; but technical words and phrases, and such others as have acquired a peculiar and appropriate meaning in law, shall be construed according to such meaning. Code Sec. 48, Par. 2.
In the case we have supposed as to an act of sexual intercourse between a man and woman, it would not be sufficient, under some circumstances, or other provisions of the statute, to show the one act. But, under the section of the statute now under consideration, proof of one act would be enough, or the evidence might be such as that the crime would be complete without proof of such single act if the evidence was sufficient to show the intent or purpose in resorting to the place and that it was for the purpose of prostitution or lewdness.
In State v. McDavitt, 140 Iowa 342, 118 N.W. 370, the court said:
"We have also held that to establish the charge of resorting to a house of ill fame for the purpose of prostitution or lewdness, only one such act need be shown."
In that case the indictment was under the second form of Sec. 4943, which provides, in substance, that if any person be found at any hotel, etc. , leading a life of prostitution or lewdness, etc. In that case, as in this, the indictment charged that the defendant did resort to and use for the purpose of lewdness. In that case the court instructed that if defendant did resort to, use and occupy the hotel described for the purpose of lewdness, he was leading a life of lewdness at such hotel within the statute. This was held to be error. The court said:
"No doubt a person might lead a life of lewdness at a hotel by habitually resorting there for lewd purposes, or by repeatedly indulging in lewdness while living there, but no such conduct is charged in the indictment or indicated by the evidence."
Appell...
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