State v. West
| Decision Date | 01 April 1924 |
| Docket Number | No. 34764.,34764. |
| Citation | 198 N.W. 103,197 Iowa 789 |
| Parties | STATE v. WEST. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Cedar County; John T. Moffitt, Judge.
Defendant was indicted for the crime of rape. The jury found him guilty of assault with intent to commit rape, and judgment was pronounced thereon. The defendant appeals. Affirmed.
On rehearing.
For former opinion, see 191 N. W. 368.
Ben J. Gibson, Atty. Gen., John Fletcher, Asst. Atty. Gen., and Arthur Lund, Co. Atty., and C. O. Boling, both of Tipton, for the State.
The indictment was under chapter 192, Acts of the Thirty-Ninth General Assembly, which reads:
“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.”
The indictment is under the last subdivision. It charges in substance, that defendant is over 25 years of age, and that he did carnally know and abuse Ellen Ghrist, a female under the age of 17 years.
Three grounds are relied upon for reversal: First, that the statute is unconstitutional; second, that there is no competent evidence to prove that defendant is over 25 years of age, for that such fact may not be shown by opinion evidence; and, third, that the testimony of the prosecutrix is unsupported by any corroborative testimony, as required by section 5488 of the Code.
[1] 1. The question as to the alleged unconstitutionality of the statute is raised for the first time in this court. We have held a number of times that this may not be done. State v. Wilson, 124 Iowa, 264, 266, 99 N. W. 1060;State v. Perkins, 143 Iowa, 55, 60, 120 N. W. 62, 21 L. R. A. (N. S.) 931, 20 Ann. Cas. 1217;State v. Ross, 186 Iowa, 802, 803, 173 N. W. 66;State v. Meyer, 180 Iowa, 210, 163 N. W. 244;State v. Burch, 195 Iowa, 427, 192 N. W. 287. Most of these cases are criminal cases. Following our prior cases it was so held in this case in the original opinion. State v. West (Iowa) 191 N. W. 368. Appellant cites us to State v. Gibson, 189 Iowa, 1212, 1216, 174 N. W. 34, which makes a distinction between civil and criminal cases and holds that in a criminal case the question may be raised for the first time on appeal. Our prior cases were evidently overlooked in the Gibson Case. Such cases were not overruled, or even referred to, and no cases are cited in support of the holding, except State v. Potter, 28 Iowa, 554, and State v. Daniels, 90 Iowa, 491, 58 N. W. 891, where it was said that--
“We could not, in a criminal case, affirm a judgment when it appears that the defendant is charged with no offense against the laws, though he should in no stage of the proceedings, either in this court or in the court below, object on that ground.”
It would seem that this would assume, in advance of its determination, that a law is unconstitutional and invalid. Clearly there is no presumption that statutes enacted by the Legislature are unconstitutional. Had a statute already been declared unconstitutional in prior cases, then the rule announced in the Daniels Case might have force. Such a situation is not presented in the instant case. In the Gibson Case it is conceded that in a civil case it is generally held that the unconstitutionality of a statute may not be first raised in the appellate court citing a number of cases, some of them Iowa cases, also 3 Corpus Juris 710, which reads:
“In applying the general doctrine that questions not raised below will not be considered on appeal, it is held that the constitutionality of a statute cannot be first questioned on appeal unless the case comes within some exception to the general rule; and this is especially true when the constitutionality of a statute depends on questions of fact as well as of law,”
as where there are irregularities in its passage. It is not pointed out nor shown that this case comes within any of the exceptions to the general rule. In so far as we have been able to discover from an examination of the authorities in other jurisdictions, every state except New Mexico, Massachusetts, and Colorado, and perhaps Washington, hold that the question must be raised in the lower court or it will be deemed waived. The following, all criminal cases, hold squarely that such a question will not be considered on appeal unless it is so raised: State v. Hertzog, 92 S. C. 14, 75 S. E. 374, 377;State v. Hennessey, 44 La. Ann. 805, 11 South. 39;People v. Luby, 99 Mich. 89, 57 N. W. 1092;Roberts v. State, 147 Tenn. 323, 247 S. W. 101;State v. Caldwell (Mo. App.) 245 S. W. 626;People v. Esposito, 296 Ill. 535, 129 N. E. 846;Scoggins v. State, 24 Ga. App. 677, 102 S. E. 39 (a murder case); State v. Hefton (Mo. Sup.) 213 S. W. 442;Ellis v. State, 74 Fla. 215, 76 South. 698;Jersey City v. Thorpe, 90 N. J. Law, 520, 101 Atl. 414 (); State v. Mack, 92 Vt. 103, 102 Atl. 58;Topeka v. Kersch, 10 Kan. 840, 79 Pac. 681, 80 Pac. 29 (); State v. Swift, 270 Mo. 694, 195 S. W. 996;State v. Smith, 35 R. I. 282, 86 Atl. 890;State v. Kelley, 17 Wyo. 335, 98 Pac. 886. See, also, 17 Corpus Juris, 53, where it is said:
“The constitutionality of a statute upon which a criminal prosecution is based will not, according to the weight of authority, be considered on appeal unless the question as to its constitutionality was raised in the court below,”
--citing a large number of cases, some of which we have before referred to. The note cites cases from Indiana, Texas, and Alabama, in addition to the cases we have before cited. See, also, 3 Corpus Juris, 689, where it is said:
“Subject to a few exceptions * * * the rule is of almost universal application that questions, of whatever nature, not raised and properly preserved for review in the trial court, will not be noticed on appeal.”
The note cites hundreds of cases from different jurisdictions. The exceptions thereto are found at pages 750, 752, and 764, and we think do not apply to this case. In Olander v. Hollowell, 193 Iowa, 979, 984, 188 N. W. 667, a criminal case wherein the death penalty was inflicted, a statute was held constitutional partly on the ground of lapse of time and acquiescence, and for that reason could not be questioned. If a defendant does not choose to raise the question, it would seem that it is one of the questions he can waive. As bearing on this question see State v. Browman, 191 Iowa, 608, 632, 182 N. W. 823. There is no pleading or proof that defendant is a citizen. The trial court was not given an opportunity to pass upon the question. We have a statute, section 5371 under procedure in criminal cases, which provides that all the provisions relating to mode and manner of the trial of civil actions, report thereof and in all other respects, apply to the trial of criminal actions. The rules of evidence are the same. Section 5483.
We are of opinion that no distinction can be made between civil and criminal cases, and that we cannot overrule our own criminal cases before cited and allow the rule to stand in civil cases, leaving two opposite rules on the same proposition. In order that there may be harmony in the decisions the Gibson Case is therefore overruled.
[2][3] 2. Doubtless the purpose of the new statute is a degree of protection of young boys and young men under some circumstances. While this purpose is proper enough, in actual practice it is likely to prevent a conviction in some cases, as where the person charged is near the age of 25 years, because of the difficulty, under such circumstances, of proving his age. Under this indictment it is necessary for the state to prove the age of the defendant as well as the prosecutrix. Ordinarily there is no difficulty is proving her age. It may be quite difficult sometimes to prove the age of a defendant. He cannot be compelled to testify thereto. In the instant case defendant was a stranger in the community, and his residence and parentage were unknown. The record of his birth was not accessible, and there is no evidence of any admission by him as to his age. As said, if a person is close to the age of 25, a little under or a little over, it might be difficult to prove. There are cases holding that where the age of an infant is in issue it may not be shown by opinion evidence. Clearly, if a man was 75 years of age, that rule would not apply. Often age is provable by evidence, which is in a sense, hearsay. A party testifying to his own age is necessarily hearsay, and it may be proved by others of the family as family history or tradition. A qualified expert can testify that a house is an old house, and give his opinion as to its age. This is so as to many other things.
In this case the age of defendant was sought to be shown by the opinions of three witnesses, experienced in such matters. They give their opinion that he is about 30 or 35 years of age or more. They state the facts upon which they base their opinions. Dr. Hoffman, engaged in the general practice of medicine for many years, enumerates the facts upon which he bases his opinion, some of which are that defendant has lost the ruddy complexion of youth; his skin is thick and a little massive; his hair is getting thin on the top and about the temples; he has wrinkles on the forehead and on either side of the eye, and on the side of the nose and about the neck; his upper lip is thickened as if he might have worn a...
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