State v. Simpson

• Decision Date: 11 December 1962
• Docket Number: No. 50708,50708
• Citation: 118 N.W.2d 606,254 Iowa 637
• Parties: STATE of Iowa, Appellee, v. Gerald R. SIMPSON, Appellant.
• Court: Iowa Supreme Court

Page 606

118 N.W.2d 606

254 Iowa 637

STATE of Iowa, Appellee, v. Gerald R. SIMPSON, Appellant.

No. 50708.

Supreme Court of Iowa.

Dec. 11, 1962.

Lundy, Butler & Wilson, Eldora, for appellant.

Evan L. Hultman, Atty. Gen., Roland D. Peddicord, Asst. Atty. Gen., and William N. Dunn, Hardin County Atty., for appellee.

THORNTON, Justice.

For reversal of his conviction of lascivious acts with a child defendant urges it was error: (1) not to submit to the jury the included offense of contributing to the delinquency of a minor, (2) to exclude evidence of specific acts relating to the morals of the prosecutrix, (3) to admit opinion evidence of venue, and (4) in that the sentence was excessive. We do not find error in any of these respects.

The evidence shows prosecutrix was a girl 15 years of age at the time she first met defendant in June or July of 1961. At that time she accompanied him and four other men and had sexual intercourse with each of them. About two weeks later prosecutrix was again with the defendant and one other man. She and her mother were picked up by the two men at 2 a. m. and she again had sexual intercourse with both men. On a third occasion, about a week and a half later, defendant with two other men picked the prosecutrix up at 9 p. m. at her home. They drove into the country and again she had sexual intercourse with the three men. The state elected to rely on the third occasion for conviction. Defendant's age was 24.

I. The trial court refused to give an instruction on the included offense of contributing to the delinquency of a minor. From an examination of the two statutes involved, we hold contributing to the delinquency of a minor, sections 233.1 and 233.2, (All references are to the Code of Iowa, 1958, here applicable, all sections are identical in the 1962 Code.) is not an included offense in the charge of lascivious acts with a child, section 725.2.

The pertinent code sections are:

'725.2 Lascivious acts with children. Any person over eighteen years of age who shall willfully commit any lewd, immoral, or lascivious act in the presence, or upon or with the body or any part or member thereof, of a child of the age of sixteen years, or under, with the intent of arousing, appealing to, or gratifying the lusts or passions or sexual desires of such person, or of such child, or of corrupting the morals of such child, shall be punished by imprisonment in the penitentiary not more than three years, or by imprisonment in the county jail not more than six months, or by fine not exceeding five hundred dollars.'

'233.1 Contributing to delinquency. It shall be unlawful to:

'1. Encourage any child under eighteen years of age to commit any act of delinquency defined in chapter 232 of this title.

'2. Send, or cause to be sent, any such child to a house of prostitution or to any place where intoxicating liquors are unlawfully sold or unlawfully kept for sale, or to any policy shop, or to any gambling place, or to any public poolroom where beer is sold, or to induce any such child to go to any such places, knowing them to be such.

'3. Knowingly encourage, contribute, or in any manner cause such child to violate any law of this state, or any ordinance of any city or town.

'4. Knowingly permit, encourage, or cause such child to be guilty of any vicious or immoral conduct. * * *.'

'233.2 Penalty--bar. A violation of section 233.1 shall be punishable by a fine of not exceeding one hundred dollars or by imprisonment in the county jail not exceeding thirty days, or by both such fine and imprisonment. Said conviction shall not bar a prosecution of such convicted person for an indictable offence when the acts which caused or contributed to the delinquency or dependency of such child are indictable.'

'232.3 'Delinquent child' defined. The term 'delinquent child' means any child:

'1. Who violates any law of this state punishable as a felony or indictable misdemeanor, or habitually violates any other state law or any town or city ordinance. * * *

'3. Who knowingly associates with thieves, or vicious or immoral persons.

'4. Who is growing up in idleness or crime. * * *'

'785.6 Finding included offense. In all other cases, the defendant may be found guilty of any offense the commission of which is necessarily included in that with which he is charged in the indictment.'

'777.20 Conviction or acquittal--when a bar. A conviction or acquittal by a judgment upon a verdict shall bar another prosecution for the same offense, notwithstanding a defect in form or substance in the indictment on which the conviction or acquittal took place.'

'777.21 Prosecutions barred. When a defendant has been convicted or acquitted upon an indictment for an offense consisting of different degrees, the conviction or acquittal shall be a bar to another indictment for the offense charged in the former or for any lower degree of that offense, or for an offense necessarily included therein.'

Defendant contends contributing to delinquency of a minor is necessarily included in lascivious acts with a child, and the evidence here is such the jury could properly find defendant guilty of such included offense. The state's position is contributing to delinquency of a minor is not an included offense because the legislature has taken away one of the elements of an included offense when it provided in section 233.2 'Said conviction shall not bar a prosecution of such convicted person for an indictable offense when the acts which caused or contributed to the delinquency or dependency of such child are indictable.' And it was not error to fail to so instruct because under the evidence defendant was guilty of the offense charged or none at all.

Section 725.2 was first enacted by the 32nd General Assembly in 1907. The age of children protected was then 13, in 1923 this age was raised to 16. Sections 233.1 and 233.2 were first enacted by the 39th General Assembly in 1921. Both were enacted to protect young people. In sections 233.1 and 233.2 the legislature set up a separate offense so far as our statutory law was concerned. It made this offense practically all inclusive to cover the field of all possible acts or series of acts that would contribute to or cause the delinquency of a child under 18 years of age. In so doing, by enacting subsection 3 of section 233.1, 'Knowingly encourage, contribute, or in any manner cause such child to violate any law of this state, or any ordinance of any city or town.', and subsection 4 thereof, 'Knowingly permit, encourage, or cause such child to be guilty of any vicious or immoral conduct.', it took in the entire field of criminal law, both state and local. Recognizing this the legislature provided the conviction of this separate crime, a non-indictable misdemeanor, should not bar a prosecution for an indictable offense when the acts which caused or contributed to the delinquency or dependency are indictable. The intent of the legislature was to protect children. We will concede that the acts of sexual intercourse, shown in the evidence to be entirely voluntary on the part of the girl, would contribute to her delinquency. But by providing such conviction shall not bar a prosecution for an indictable offense the purpose of the statute is effected. And it does not become a refuge for a serious offender.

Appellant and the state agree that one of the elements of an included offense is that a conviction of the lesser bars a prosecution for the greater. See State v. Leedom, 247 Iowa 911, 76 N.W.2d 773; State v. McCall, 245 Iowa 991, 63 N.W.2d 874; State v. Marshall, 206 Iowa 373, 220 N.W. 106; and State v. Jacobson, 197 Iowa 547, 197 N.W. 638.

In passing on this we have not overlooked the scholarly opinion of Justice Traynor of the California Supreme Court in People v. Greer, 30 Cal.2d 589, 184 P.2d 512, wherein it is stated it is inconceivable that acts described in their lascivious acts statute would not constribute to the delinquency of a minor. The California statute does not contain the provision that it shall not be a bar to a prosecution for an indictable offense. In discussing the legislative intent at page 520 of 184 P.2d, Justice Traynor points out,

'Had the Legislature wished to punish defendant once for statutory rape and once for lawd and lascivious conduct, for the same act, it could have done so in plain language.'

In section 233.2 our legislature has done that. See also 22 C.J.S. Criminal Law § 13, p. 49.

In addition to the foregoing, it should be pointed out that in this case the same evidence would prove a violation under section 725.5 and section 233.1. The only difference in elements of the crimes is that section 725.2 requires a specific intent and section 233.1 requires the act be performed 'knowingly,' either may be inferred from the nature of the act. An instruction on contributing to the delinquency of a minor as an included offense would have allowed the jury to decide on the crime after finding the fact issue of whether or not defendant was guilty of the acts charged. See Berra v. United States, 351 U.S. 131, 134-135, 76 S.Ct. 685, 687-688, 100 L.Ed. 1013.

II. Defendant's contention it was error to allow the opinion testimony of the girl involved as to venue requires an examination of the testimony on that issue. It is not necessary the venue be laid as to the first two occasions. She testified her home was at 615 Sherman Street, Iowa Falls, that she knew Iowa Falls was in Hardin County. Referring to the third occasion, she testified:

'They came over to my house about nine. I was not home alone. * * * Then I left with the three of them. * * * When I left with these three men we went out south and east of town, about five or six miles south and two or three miles east. We went out on the blacktop until we came to the first crossroad, then we turned to the right. We went about five miles to the right. * * * After we went out the blacktop and turned right and went...