State v. Brustkern , 1969 Iowa Sup. LEXIS 892 ( 1969 )

STUART, Justice

(dissenting).

If this statute were before us for construction for the first time or if it were necessary to interpret section 123.59 as the majority has done in order to make defendant’s acts subject to criminal prosecution, I would not hesitate to join the opinion.

However, in State v. Speedling (1925), 199 Iowa 1218, 1220, 201 N.W. 561, we spoke quite clearly on this question and held section 123.59 did not apply to facts indistinguishable from these. We need not reverse this holding to carry out the legislative intent to make such acts illegal because, as the majority points out, defendant could have been prosecuted under sections 123.3 or 123.60.

I cannot accept the majority’s assumption that the state chose to prosecute under this section because of the severity of the penalty. There is so little difference in penalty it is doubtful the state would rely on a reversal of prior holdings to obtain a suspended sentence of a year in the penitentiary rather than a year in jail. If the state were really interested in the most severe penalty, it could have prosecuted defendant under section 125.7 which is almost identical with section 123.59 and carries a penalty of both a fine not exceeding $1000 and a year in jail.

I can see no improvement to the general law in a reversal of long standing precedents established when crimes of this type were much more common. We should not change our law to affirm this conviction. Defendant is still subject to prosecution under one of the appropriate sections. It seems to me legislative acquiesence in the interpretation placed on section 123.59 in Speedling should be recognized and a new interpretation to alleviate the state’s mistake avoided.

The overruling of Speedling will create problems in the area of double jeopardy and, at the appropriate time, will require a reexamination of the many cases in which we have held these cited sections constitute separate offenses.

I would reverse.

MASON, RAWLINGS, and BECKER, JJ., join in this dissent.