State v. Rayburn

Preston, J.

The indictment is in this form:

1. Prostitution house of: “resorting to for lewdness” who may be guilty: male person. “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 or 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 ease 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.

2. Words and phrases : “prostitution” : “lewdness” : criminal statute. 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. 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, 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 ease 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 ease 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.”

3. Prostitution, house of : resorting to : intent: gist of offense. Appellant contends for that case that the words ‘ ‘ only' one such act” in the first quotation just given show that both words, “prostitution” and “lewdness,” refer to one and the same act. But we think this does not necessarily follow. The court was not ' e°nstruing any question of prostitution in that case. Under See. 4943, under which this defendant was indicted, it is not the act itself of sexual intercourse, or other lewdness, which is prohibited, but the resorting to a house of ill fame for the purpose of prostitution or lewdness. As indicating the purpose of the legislature in enacting the statute in question, we may refer to one or two others. Sec. 4938 provides a penalty for lewdly and viciously associating and cohabiting if unmarried. The word “lewdly” as there used has a meaning separate and distinct from its meaning when used in connection with the indecent exposure of the person. Under that section, the cohabitation or association must, to some extent, become notorious and reach that degree where it becomes observed by the public before a conviction is proper. Sec. 4939 punishes anyone who keeps a house of ill fame resorted to for the purpose of prostitution or lewdness. The situation had not yet been entirely covered. Persons who should visit a house of ill fame for the purposes for which it was established were not reached by either of the preceding sections. Sec. 4943 was evidently enacted to cover the last situation, and made resorting to a house of ill fame for the purpose for which it is maintained a crime. Either sex may resort to a house kept for that purpose, and either sex may commit lewd acts in such a place.

In State v. Wilson, 124 Iowa 265, where the charge was keeping a house of ill fame, this court approved an instruction defining “a house resorted to for the purpose of prostitution and lewdness” as being “a house visited by persons of both sexes for the purpose of having sexual intercourse, or some other lewd purpose.”

In State v. Mitchell, 149 Iowa 362, 365, an instruction defining lewdness as “the unlawful indulgence of the animal desires” was held inadequate and misleading as applied to the facts in that ease. The indictment in that case was for conspiracy to induce two girls to commit the crime of lewdness, under Sec. 4938 of the Code, and the inquiry was whether the design of the defendants was that the girls lewdly and viciously associate with them, or other males. The holding was that this would not be established by showing a conspiracy to procure them to yield their persons to a single act of incontinence, but the design must have been to cause or induce each girl to lewdly or viciously associate or cohabit for some time with one of the defendants or other male person. The court refers to the Wilson case and Sec. 4939 of the Code, and says:

‘ ‘ The gist of the offense under that section is the keeping of the place for the purpose defined, and the term ‘ lewdness, ’ as therein found, is employed in its ordinary sense as meaning lustfulness, lecherous, lascivious, or libidinous conduct.”

4. Prostitution, house of: resorting to: indictment: suffiency. 2. Appellant’s next contention is that the indictment is insufficient, in that there is not set out the specific acts which the defendant is charged with having committed. The gist of the offense is resorting to a house of . . ill fame for prostitution or lewdness. The indictment charges that the defendant 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. Defendant was informed that the offense for which he was placed on trial was resorting to the house of ill fame kept by Ollie Witt, also that he resorted there for an unlawful purpose, to wit, lewdness. The indictment would not have been sufficient had it stopped with the allegation that he resorted to a house of ill fame, because he might have gone there for a legitimate purpose; but when it charged him with going there for the purpose of lewdness, the crime was charged in the language of the statute, showing that his purpose was an unlawful one and one which the statute punishes. Lewdness has a distinct meaning in law, and we think it was unnecessary to give in detail in the indictment the various acts which he purposed committing. The character of the place and the specific acts committed, or which he contemplated committing, were matters of evidence, and not of pleading. Unless it was shown by the evidence that defendant resorted to the place for the purpose charged, defendant could not be convicted. As before stated, the evidence is not before us, and we must assume that there was evidence to so show.

The burglary eases are somewhat analogous. There the gist of the offense is the breaking and entering, and it has been held that in an indictment for burglary it is not necessary to describe in technical language the crime intended to be committed. Thus it is sufficient to charge the intent as having been to commit a public offense, to wit, adultery. State v. Mecum, 95 Iowa 433. See also State v. Jennings, 79 Iowa 513. And in such a ease the fact that the indictment charges two different intents does not render it bad. The crime may be established by the proof of one or all the intents alleged. That is a matter of evidence. So in conspiracy cases, the crime intended to be accomplished by the conspiracy need not be described in the indictment with the accuracy or detail which would be essential in an indictment for the commission of the offense itself. State v. Soper, 118 Iowa 1, 4; State v. Madden, 170 Iowa 230.

There is no error, and the judgment is — Affirmed.

Deemer, C. J., Evans and Weaver, JJ., concur.

Case Details

Case Name: State v. Rayburn

Court Name: Supreme Court of Iowa

Date Published: Jun 18, 1915

Citation: 170 Iowa 514

Court Abbreviation: Iowa