State v. Toland
| Decision Date | 17 October 1924 |
| Docket Number | 36301 |
| Parties | STATE OF IOWA, Appellee, v. HARVEY TOLAND, Appellant |
| Court | Iowa Supreme Court |
Appeal from Union District Court.--HOMER A. FULLER, Judge.
PROSECUTION for statutory rape upon a female under 16 years of age. Upon a plea of not guilty, trial was had, and a verdict of guilty returned. Judgment was rendered thereon.-- Affirmed.
Affirmed.
Hunt & Chittenden, for appellant.
Ben J Gibson, Attorney-general, Maxwell A. O'Brien and S. S Faville, Assistant Attorney-generals, and E. L. Carroll County Attorney, for appellee.
The brief for appellant is voluminous, and is replete with alleged grounds for reversal. The indictment was assailed by demurrer; by motion to quash; by motion to direct verdict; by motion in arrest of judgment; and by motion for a new trial. The statute upon which the prosecution rests is assailed as being unconstitutional. The many specific complaints of appellant may be summarized into a few heads, and we shall deal with them in that form.
It appears from the evidence for the State that the prosecutrix was a child 14 years of age; that the defendant sustained illicit relations with her, beginning in November, 1922, and being repeated at various times until February, 1923. The indictment charged that the prosecutrix was a female under 16 years of age. It did not state the age of the defendant; nor did the evidence disclose the age of the defendant, other than inferentially. It does appear that he was the head of a family, and maintained a home in the town. The statute upon which the prosecution rest, and which is alleged to be unconstitutional, is Chapter 192 of the Acts of the Thirty-ninth General Assembly, and is as follows:
"If any person ravish and carnally know any female [of the age of sixteen (16) years or over,] by force or against her will, or if any person [under the age of twenty-five (25) years] carnally know and abuse any female child under the age of sixteen (16) years, or if any person over the age of twenty-five (25) years carnally know and abuse any female under the age of seventeen (17) years, he shall be imprisoned in the penitentiary for life or any term of years."
So far as the verbiage of this statute is concerned, we offer it no commendation. It is bungling in its use of language, and its form is not creditable to the legislative body. Its redundancies are confusing, and have little excuse. It will be noted therefrom that the crime of rape is defined in three forms disjunctively. The first defines rape as committed by force and against the will of a female. In such case, neither the age of the female nor that of the perpetrator is material. The second part of the statute defines rape upon a female under the age of sixteen years, though it be without force or against the will of the female. In this case, the age of the perpetrator is not material.
In the third part, it defines rape upon a female under the age of seventeen years, though it be without force or against the will of the female. In a prosecution under this part of the statute, both the age of the female and the age of the perpetrator are material. In the above copy of the statute, the brackets are ours. We have used them to indicate the redundancies of the statute. By elimination of these redundancies, the statute is clarified, and its proper construction stands forth. The case before us involves an offense committed upon a female child under the age of sixteen.
Upon the constitutionality of this statute and its classifications, we have already passed. State v. Wrenn, 194 Iowa 552, 188 N.W. 697. We will not repeat the discussion. We do not overlook an incongruity in the statute. Under the second part thereof, its prohibition extends only to a "person under the age of twenty-five years." Under the third part of the statute, its prohibition extends only to a "person over the age of twenty-five years."
In the case at bar, the injured female comes within the description contained both in the second and third parts of the statute. She was under 16 years of age, and was, therefore, necessarily under 17 years of age. If the defendant was under 25 years of age, he came within the prohibition of the second part of the statute; if he was over 25 years of age, he came within the prohibition of the third part of the statute. If, at the time of the commission of the offense, the defendant had been 25 years of age, neither over nor under, neither prohibition of the statute would reach him. Inasmuch as there could be only a fleeting moment of time when the age of the defendant could be so described, we have refused to indulge in the refinement of such hypothesis. In State v. Wrenn, supra, we held that the two classifications taken together (those "under twenty-five" and those "over twenty-five") were sufficient in description to include all male persons. We now adhere to such holding, commending, however, to the consideration of the legislative body the propriety of rewriting this statute.
I. The defendant moved to quash the indictment because it was found upon illegal evidence. The evidence in question was that of the witness Earl Hoar. Hoar's purported evidence was returned with the indictment, and his name was indorsed on the back of the indictment. He did not, however, appear before the grand jury which returned the indictment. He did appear before a previous grand jury, which sat at the August term of court, and which returned an indictment against this defendant upon this...
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