State v. West , 197 Iowa 789 ( 1923 )

PREston, J.

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 16 years or over, by force or against her will, or if any person under the age of 25 years carnally know and abuse any female child under the age of 16 years, or if any person over the age of 25 years carnally know and abuse any female under the age of 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 prosecutrix is unsupported by any corroborative testimony, as required by Section-5488 of the Code.

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; State v. Perkins, 143 Iowa 55, 60; State v. Ross, 186 Iowa 802, 803; State v. Meyer, 180 Iowa 210; State v. Burch, 195 Iowa 427. 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, 191 N. W. 368 (not officially reported). Appellant cites us to State v. Gibson, 189 Iowa 1212, 1216, 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 eases were not overruled, or even referred to, and no cases are cited in support of the holding, except State v. Daniels, 90 Iowa 491, and State v. Potter, 28 Iowa 554, 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 tbe 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 ease. In the Gibson case, it is conceded that, in a civil ease, 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, holds 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. Hennessy, 44 La. 805 (11 So. 39); People v. Luby, 99 Mich. 89 (57 N. W. 1092); Roberts v. State (Tenn.), 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.), 213 S. W. 442; Ellis v. State, 74 Fla. 215 (76 So. 698); Mayor of Jersey City v. Thorpe, 90 N. J. L. 520 (101 Atl. 414), holding that this is so even though the attorneys stipulated that the question might be considered; State v. Mack, 92 Vt. 103 (102 Atl. 58); City of Topeka v. Kersch, 70 Kans. 840 (79 Pac. 681, 80 Pac. 29), where the court said that a defendant was content to take his chances with the jury without raising the constitutional question; State v. Swift & Co., 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, a criminal ease wherein the death penalty was inflicted, a statute was held constitutional, partly on the ground of lapse of time and acquiescence, and for that reasoii, it was held, it 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.

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, Code 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. Code 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. 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 prac-tiee 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 that of the prosecutrix. Ordinarily, there is no difficulty in 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 were 75 years of age, that rule would not apply. Often age is provable by evidence which is, in a sense, hearsay. The testimony of a party as to his own age is necessarily hearsay, and his age 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. Doctor 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 be might have worn a mustache, and his eyes are sunken; his general appearance is that he is a man past the age of 30. Witness says he has no doubt about it; thinks defendant is between 30 and 35 years of age. Doctor Jenks gives his experience and observations, and gives his opinion that, between the wide extremes, defendant is between 30 and 40 years old; has no doubt that he is at least 30 years of age. He gives the facts upon which he bases his opinion: that he was in the service, in hospital work, and during all that time, and in his practice generally, has had occasion to observe people as to their ages; that he does not recollect having seen, in his practice, persons that have the line from the nose and mouth who were not 25. Doctor Yan Meter, engaged in general practice since 1887, says he always observes the age of a person in making a diagnosis. He states the facts upon which he bases his opinion: his observation; defendant’s general appearance, as compared with other men of different ages.

Without discussing in detail the different cases on this subject, we think the evidence is competent. See 22 Corpus Juris 560; State v. Bernstein, 99 Iowa 5, 10; Commonwealth v. O’Brien, 134 Mass. 198; DeWitt v. Barly, 17 N. Y. 340; State v. Grubb, 55 Kans. 678; Louisville, N. A. & C. R. Co. v. Frawley, 110 Ind. 18; Monahan v. Roderick, 183 Iowa 1; Reininghaus v. Merchants’ Life Assn., 116 Iowa 364; Jones on Evidence (2d Ed.), Section 401, Notes 42 to 45, inclusive, and cases therein cited; Ibid., Section 300, Note 21; 41 L. R. A. 451 (family Bible entries as evidence of age); Priddy v. Boice, 9 L. R. A. (N. S.) 718, 723 (census returns); 17 Cyc. 98; 16 Cyc. 1123; Grand Lodge v. Bartes, 69 Neb. 631 (98 N. W. 715) (family history).

3. It is argued that there is no corroboration of the prose-cutrix, as required by the statute. It appears from the evidence that the defendant was operating a show at a fair near Tipton, from August 31 to September 2, 1921, inclusive, and that, at the same time and place, another show, or doll rack, was being conducted by the Bassett brothers. Defendant slept in the Bassett tent, arranging his bed on the ground. Prosecutrix voluntarily, for aught that appears, stayed and slept in the same tent during the time in question, — slept on cots between the two Bassetts, on Wednesday night. Prosecutrix was over 16 and under 17 years of age. She testifies that the intercourse was had with her by the defendant on Thursday night, September 1, 1921, in the night, at about 1 o’clock; that it occurred in the tent owned by Bassett brothers, and at the fair grounds; that-she saw defendant on the fair grounds August 31st, at different times on that date; that she got to the fair grounds about noon; that she saw defendant in his own place there in the afternoon, saw him in Bassett brothers’ tent at different times; that he stayed there all night in the tent Wednesday night and Thursday night; that she stayed there all night. She says further that, on the date-in question, she was working at Fitzpatricks’, and that, when not working there, she was at home with her father and mother, who lived about two miles south of Tipton, and that Fitzpatrick lived about a half a mile from Tipton; that she was working for Fitzpatrick on August 31st; that on that date she went to the Tipton fair grounds, and attended the fair; that defendant had been drinking that day; that she smelled it on his breath; that whisky had been brought into the tent; that defendant woke her up by getting on top of her, etc., and that, when he did that, she tried to get away; that he held her, and told her he would not hurt her; that it did hurt; that she told him to quit, and he said he was not going to; that she left the fair grounds about 2 o’clock Friday; that she does not know the time exactly; that she made the complaint to Sheriff Barclay Friday evening. As to the time she made complaint to the sheriff, her testimony differs somewhat from that of the sheriff, who says she made the complaint that afternoon about 2 o’clock, and told him that defendant had sexual intercourse with her. About 5 o’clock Friday afternoon, Doctor Jenks made an examination of her sexual organs. He testifies that he found some laceration of the hymen, etc.

The defendant did not testify, and only two witnesses were introduced in his behalf. Argo testifies that, on September 1, 1921, Thursday morning, “I brought Louie Bassett and Ellen Ghrist to Tipton, and at that time, she made this statement to me, in substance: ‘Louie Bassett is my husband.’ ” Doubtless this was in jest, or to shield herself or her lover.

The other witness for defendant was Louis Bassett, who testified that he was at the Tipton fair, which was held on the last two days of August and the first two days of September; that he had a doll rack concession at the Tipton fair; that he had the dolls in a tent; that the tent is 16x10, the long way east and west.

“West wanted me to make a date for him with Ellen G-hrist, — he asked me to fix it up. I asked her about a date with him,- — did not specify any certain kind of a date. Saw Ellen and West together in the east end of the tent on Wednesday night. West told me he wanted me to fix it up for him with the girl. There were two cots in the Bassett tent on Wednesday night, August 31st. Ellen Ghrist slept all night on the two cots in our tent, with my brother and myself. West slept in the opposite end of the tent on the ground that night. On Thursday night, our cots were in the same position as they were on Wednesday night, and West’s bed was in the same place. He went to bed there Thursday night between 12 and 1 o’clock. I was in the tent all of Thursday night after midnight, until morning. Ellen again slept on the cots with my brother and I all of Thursday night after midnight, and I was in position with respect to her so that, if any commotion which involved her had occurred,it is probable that I would have known about it. She did not leave our cots for any purpose on Thursday night at any time between 12 o’clock and the next morning. She was already in bed on the cots with my brother and myself when West' came into the tent on Thursday night. Do not know whether West spoke to her or not on Thursday night after midnight. West slept on some blankets and quilts in the front part of the tent. We had no room in the back part for the cots. The curtain that was in the tent was removed when we went to bed. West brought some whisky in the tent Wednesday night. I drank some whisky Wednesday night, and believe I took a drink on Thursday morning. ’ ’

We think that the evidence other than that of the prosecu-trix pointed out the defendant as the person who committed the crime, and that it was sufficient to take the case to the jury, and to support the verdict. This answers the requirements of the statute as to corroboration. The crime may be established by the testimony of the prosecutrix alone, if the jury believe her story,- — that is, that the act was committed by someone. There was corroboration of her testimony by other witnesses that she made complaints, and there was an examination of her person by a physician. These circumstances corroborate her story that the crime was committed by someone. But these last mentioned circumstances, of course, do not constitute the statutory corroboration. The evidence other than the evidence of prosecu-trix shows beyond question that defendant was present at the very time and place that the sexual intercourse took place.

Ordinarily, mere opportunity is not sufficient corroboration, — that is, where a man and woman are alone together in ordinary social intercourse. But we find much more than that in this case. Where a party creates a situation by which he has the opportunity, and for the purpose of having sexual intercourse, it may be sufficient corroboration. While it appears that the result of Bassett’s solicitation of prosecutrix, on behalf of defendant, for a date, was not communicated to the defendant, the evidence clearly shows,- and without dispute, that this matter was in his mind, and defendant was there present in the tent. It may be true that young people do use the same expression about making a date for a theater, and the like. In that sense, it would be harmless and innocent; but here, the parties were entire strangers, — he a side-show follower or proprietor, and she a young country girl. Under such circumstances, the expression “a date,” and defendant’s request that Bassett should fix it up for him, could mean but one thing, and that the very thing that was done. She had no occasion to be in the tent, except by solicitation. Defendant created the opportunity by sleeping in the Bassett tent, instead of in his own, and for the purpose of having sexual intercourse with her. At least, the jury could have so found. It is a proper inference that defendant and the Bassetts were in collusion. This is shown by her presence in the Bassetts ’ tent; by her sleeping on their cots; by the solicitation by one of the Bassetts of prosecu-trix, at the request of the defendant, for a date; by conversations by one of them with defendant in jail; and by their drinking together. Naturally, Bassett claims that he heard no commotion. It was not necessary that there should be any commotion or resistance, at her age.

Tbe fact that the corroborating evidence was furnished by the defendant does not make it any the less corroboration. Bas-sett’s evidence was offered, no doubt, to show that there was no commotion, and that, therefore, defendant did not have intercourse with prosecutrix. It is not claimed by the defendant, or in his behalf, that the Bassetts or either of them had intercourse with the girl. There is no direct evidence that they did. It may be that they all had intercourse with her. There can be no doubt, under this record, that prosecutrix was in the tent at the time in question at the instigation of the three men, and that all four were there for an immoral purpose. Suppose the State was claiming and seeking to prove circumstantially, without the testimony of prosecutrix, that all three of the men had intercourse with the girl, — could there be any question that such was the fact, and that they, had her in the tent, or that she was in the tent, for that very purpose? We think there could be no reasonable doubt about it. If this is so, then clearly the circumstances would sufficiently indicate that, this defendant, as one of the three, had intercourse with her. Particularly is this true as to this defendant, since the undisputed evidence shows his solicitations, and that he created the opportunity. This'being so, it corroborates her story, and tends to point out the defendant, even as against the other two, as the one who had intercourse with her, as she says. Under the entire record, we think that the circumstances referred to and the evidence outside that of prosecutrix meet the statute as to corroboration. The circumstances were proper to be considered as corroboration, and the sufficiency thereof was for the jury.

4. A rehearing was granted, and further arguments invited on the question as to whether the constitutional point could be first raised on appeal. This has already been referred to. Counsel .for defendant has argued the constitutional question again, and at length, and with the citation of many authorities. Since we have held in a prior division of the opinion that appellant is not entitled to a review of the constitutional question, nothing further need be said on the question. The judgment is— Affirmed.

Arthur, C. J., EvaNS and Stevens, JJ., concur. Faville and Vermilion, JJ., concur except as to the division in regard to corroboration. De Graff, J., dissents.