State v. Wrenn

Citation194 Iowa 552,188 N.W. 697
Decision Date21 June 1922
Docket NumberNo. 34736.,34736.
PartiesSTATE v. WRENN.
CourtUnited States State Supreme Court of Iowa


Appeal from District Court, Plymouth County; C. C. Bradley, Judge.

The defendant was charged with, tried and sentenced, for the crime of rape. The indictment charges, in substance, that defendant, about September 12, 1921, did willfully, knowingly, and feloniously carnally know and abuse Ethel Bray, a female child then and there under the age of 16 years and a female person then and there under the age of 17 years, the said defendant being then and there a male person of the age of more than 25 years, and being over the age of 25 years. The defendant appeals. Affirmed.T. M. Zink, of Le Mars, for appellant.

Ben J. Gibson, Atty. Gen., for the State.


The errors and points relied upon by appellant relate to the sufficiency of the evidence and alleged errors in instructions, also as to the constitutionality of chapter 192, Acts 39th Gen. Assem. It is thought by appellant that the act violates section 6 of article 1, section 9 of article 1, and section 30 of article 3, of the Constitution of Iowa, and the Fourteenth Amendment to the Constitution of the United States. The questions were raised by demurrer to the indictment, by motion to direct a verdict of not guilty, by exceptions to the instructions given, by motion in arrest of judgment, and in the motion for new trial. This is the point most relied upon for reversal. Chapter 192 above referred to, provides:

Section 1. Rape.--If any person ravish and carnally know any female of the age of sixteen (16) years or over, by force or against her will,


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.”

Section 2 is a saving clause to the effect that nothing in the act shall bar any prosecution for any crime committed in violation of section 4756, prior to the taking effect of this act. Section 3 repeals section 4756 of the Code. For convenience we have made a sort of subdivision of the provisions of section 1. The transaction in question is alleged to have taken place in September, 1921, after chapter 192 took effect. The first subdivision defines rape in substantially the same language as the first part of the repealed section, 4756, except that the age of consent is fixed at 16 years instead of 15. The prosecutrix, Ethel Bray, was under 16 years of age at the time of the alleged intercourse. It is not claimed that the intercourse was by force or against her will. As we understand it, defendant was about 30 years of age, but whether he is under or over 25 is not, in this case, very material. The second subdivision, as we have quoted chapter 192, has reference to one, who is under 25 years of age, having carnal knowledge of a female child under the age of 16 years. Paragraph 3 has reference to a person over 25 having carnal knowledge of a child under 17.

1. Appellant contends that chapter 192 before referred to, as a whole, is unconstitutional. The grounds of the objection, as stated in the demurrer, motion for verdict, and so on, may be stated in a somewhat condensed form as follows: That said chapter is contrary to the provisions of the Iowa Constitution before mentioned, in that said chapter is class legislation, arbitrary, unnatural, not uniform in its terms and application, and denies the defendant equal rights, privileges, and immunities under the Iowa Constitution, denies defendant his rights and liberty without due process of law, and abridges his rights and liberty and immunity and does not extend to him equal protection in his rights; that it violates the Fourteenth Amendment to the Constitution of the United States for the same reasons, and that it is discriminatory in its terms, provisions, and application, against the defendant. The grounds are amplified somewhat in the motion for verdict wherein it is claimed, and it is argued, that the statute does not apply to all the citizens of the state of Iowa under like circumstances, makes the act of carnally knowing a female therein mentioned a crime for a man over 25 years and not a crime for a man under 25 years to carnally know a female under the age of 16 years, and does not make the same act a crime for a man over 25 years of age to carnally know a female under 16 years; that it makes it a crime for a man over 25 years of age to carnally know a female over 16 years of age and under 17, and does not make the same act a crime for a man under 25 to carnally know a female over 16 and under 17 years of age. A large number of cases decided by the courts of other states and this state, also of the Supreme Court of the United States, are cited on the several propositions argued, and appellant states that the decisions of the courts of the other states are in harmony with the Iowa decisions. We shall not cite all the cases. The Iowa cases cited are State v. Garbroski, 111 Iowa, 496, 82 N. W. 959, 56 L. R. A. 570, 82 Am. St. Rep. 524;Dunahoo v. Huber, 185 Iowa, 756, 171 N. W. 123;Lee v. Hoffman, 182 Iowa, 1221, 1228, 166 N. W. 565, L. R. A. 1918C, 933;State v. Collins, 178 Iowa, 79, 89, 159 N. W. 604;Hubbell v. Higgins, 148 Iowa, 39, 40, 126 N. W. 914, Ann. Cas. 1912B, 822;Huston v. City of Des Moines, 176 Iowa, 468, 156 N. W. 883;Des Moines v. Bolton, 128 Iowa, 108, 102 N. W. 1045, 5 Ann. Cas. 906;State v. Santee, 111 Iowa, 1, 82 N. W. 445, 53 L. R. A. 763, 82 Am. St. Rep. 489;Cedar Rapids Water Co. v. Cedar Rapids, 118 Iowa, 234, 91 N. W. 1081;State v. Creamery Co., 153 Iowa, 704, 133 N. W. 895, 42 L. R. A. (N. S.) 821;Hunter v. Coal Co., 175 Iowa, 266, 322, 154 N. W. 1037, 157 N. W. 145, L. R. A. 1917D, 15, Ann. Cas. 1917E, 803;Coggeshall v. Des Moines, 138 Iowa, 736, 117 N. W. 309, 128 Am. St. Rep. 221;State v. Sargent, 145 Iowa, 298, 124 N. W. 339, 27 L. R. A. (N. S.) 719, 139 Am. St. Rep. 439. Cases by the Supreme Court of the United States, discussing the Fourteenth Amendment cited, are Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 150, 17 Sup. Ct. 255, 41 L. Ed. 668;Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064, 30 L. Ed. 225;Barbier v. Connolly, 113 U. S. 27, 5 Sup. Ct. 357, 28 L. Ed. 925;Soon Hing v. Crowley, 113 U. S. 703, 5 Sup. Ct. 730, 28 L. Ed. 1146;Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 22 Sup. Ct. 431, 46 L. Ed. 689;In re Converse, 137 U. S. 624, 11 Sup. Ct. 191, 34 L. Ed. 799;Leeper v. Texas, 139 U. S. 462, 11 Sup. Ct. 577, 35 L. Ed. 227;McFarland v. Refining Co., 241 U. S. 79, 36 Sup. Ct. 498, 60 L. Ed. 899. On the other hand, it is contended by the state that the statute in question is constitutional in all its parts. The argument, briefly stated, is that it is the duty of each of the three branches of government to observe and not to offend against the Constitution of the state. It is argued that this court must assume that the Legislature did that which it ought to have done, namely, to consider the question as to whether or not the classification complained of offended against the Constitution, and that the Legislature had a distinct reason for such classification; that the courts have nothing to do with the wisdom and advisability of legislation, such matters being vested in the Legislature, which is paramount. The argument is that it is only where a law is clearly, plainly, and palpably unconstitutional that the courts will interfere. Rowley v. Clarke, 162 Iowa, 732-734, 144 N. W. 908. The state also argues that the courts have uniformly upheld the classification statutes, save where the classification is purely arbitrary and unreasonable. It is suggested that the Legislatures of the different states have fixed the age of consent of the female at different ages, and that all such statutes have been upheld because no definite and fixed rule can be made; that the discretion in that regard is for the Legislature, where it will be left by the courts. We may say in passing that we do not understand counsel for appellant to question the right of the state to fix an age of consent for the female, and to provide that if a male shall carnally know a female under such age, then he shall be guilty of rape. Such statutes have almost uniformly been upheld by the courts of the land. It is further contended by the state that the same rule applies as to the proper age or classification of males in cases of this character; that the fixing of such age is a legislative act and, if there is any reason to sustain it, the courts will do so. It is argued that the courts may not say that the age of 25 is arbitrary and unreasonable, because it is a matter of common knowledge that men do not reach the age of maturity in all regards at any definite age; that as a matter of common knowledge, the age in which minds of men become fixed, so far as criminal tendencies are concerned, is somewhere between the age of 20 and 30, but that it is impossible to fix an exact date; that the fixing of such age is a legislative act and not a judicial one. It is argued that the moral sentiment of the people with regard to sex crimes has been progressing; and, further, that the acts of such men of mature age in sex matters are condemned, but that the acts of youth in this regard are not so severely condemned.

[1][2] The argument is that all these matters could have been, and must have been, considered by the Legislature in enacting the statute complained of. As to whether a classification in a given case is arbitrary and unreasonable, and the discussion in regard thereto, the State cites State v. Creamery Co., 153 Iowa, 706, 133 N. W. 895, 42 L. R. A. (N. S.) 821, and cases therein cited. The state also cites, to sustain its position on these matters, Central Lumber Co. v. South Dakota, 226 U. S. 161, 33 Sup. Ct. 66, 57...

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