414 U.S. 478 (1974), 73-573, Vachon v. New Hampshire

Docket Nº:No. 73-573
Citation:414 U.S. 478, 94 S.Ct. 664, 38 L.Ed.2d 666
Party Name:Vachon v. New Hampshire
Case Date:January 14, 1974
Court:United States Supreme Court
 
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414 U.S. 478 (1974)

94 S.Ct. 664, 38 L.Ed.2d 666

Vachon

v.

New Hampshire

No. 73-573

United States Supreme Court

Jan. 14, 1974

APPEAL FROM THE SUPREME COURT OF NEW HAMPSHIRE

On the basis of evidence tat a 14-year-old girl bought a button inscribed "Copulation Not Masturbation" at a store operated by him, appellant was convicted of "willfully" contributing to the delinquency of a minor in violation of a New Hampshire statute. The New Hampshire Supreme Court affirmed.

Held: An independent examination of the trial record pursuant to Supreme Court Rule 40(1)(d)(2) discloses that evidence is completely lacking that appellant personally sold the girl the button, or that he was aware of the sale or present in the store at the time, a fatal void in the State's case that was not filled by appellant's concession at trial that he "controlled the premises" at the time. A conviction based on a record completely lacking any relevant evidence as to a crucial element of the offense charged violates due process.

113 N.H. 239, 306 A.2d 781, reversed and remanded.

Per curiam opinion.

PER CURIAM.

A 14-year-old girl bought a button inscribed "Copulation Not Masturbation" at the Head Shop in Manchester, New Hampshire. In consequence, appellant, operator of the shop, was sentenced to 30 days in jail and fined $100 after conviction upon a charge of "willfully" contributing to the delinquency of a minor in violation of New Hampshire's Rev.Stat.Ann. § 169:32 (Supp. 1972).1 In affirming the conviction, the New Hampshire Supreme Court held that the "willfully" component of the offense required that the State prove that the accused acted "`voluntarily and intentionally and not

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because of mistake or accident or other innocent reason.'" 113 N.H. 239, 242, 306 A.2d 781, 784 (1973). Thus, the State was required to produce evidence that appellant, knowing the girl to be a minor,2 personally sold her the button, or personally caused another to [94 S.Ct. 665] sell it to her. Appellant unsuccessfully fought dismissal of the charge at the close of the State's case on the ground that the State had produced no evidence to meet this requirement, and unsuccessfully urged the same ground as a reason for reversal in the State Supreme Court. We have reviewed the transcript of the trial on this issue, pursuant to Rule 40(1)(d)(2) of the Rules of this Court.3

Our independent examination of the trial record discloses that evidence is completely lacking that appellant personally sold the girl the button, or even that he was aware of the sale or present in the store at the time. The girl was the State's only witness to the sale. She testified that she and a girlfriend entered the store and looked around until they saw "a velvet display card on a counter" from which they "picked out [the] pin." She went to some person in the store with the button "cupped in [her] hand," and paid that person 25 cents for the button. She did not say that appellant was that person,

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or even that she saw him in the store. Rather, she testified that she could not identify who the person was. We therefore agree with Justice Grimes, dissenting, that

there is no evidence whatever that the defendant sold the button, that he knew it had been sold to a minor, that he authorized such sales to minors, or that he was even in the store at the time of the sale.

113 N.H. at 244, 306 A.2d at 785. This fatal void in the State's case was not filled by appellant's concession at trial that he "controlled the premises on July 26." That concession was evidence, at most, that he operated the shop; it was in no way probative of the crucial element of the crime that he personally sold the minor the button or personally caused it to be sold to her.

In these circumstances, the conviction must be reversed.

It is beyond question, of course, that a conviction based on a record lacking any relevant evidence as to a crucial element of the offense charged . . . violate[s] due process.

Harris v. United States, 404 U.S. 1232, 1233 (1971). (DOUGLAS, J., in chambers); Thompson v. Louisville, 362 U.S. 199 (1960); Johnson v. Florida, 391 U.S. 596 (1968); see also Adderley v. Florida, 385 U.S. 39, 44 (1966).

The judgment is reversed and the case is remanded to the New Hampshire Supreme Court for further proceedings not inconsistent with this opinion.

It is so ordered.

REHNQUIST, J., dissenting

MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and MR. JUSTICE WHITE join, dissenting.

Appellant Denis M. Vachon operates the Head Shop in Manchester, New Hampshire, where he sells various beads, dresses, posters, and the like. In, July 1969, a 14-year-old girl, accompanied by her girlfriend, went to the shop seeking to purchase a button or pin like the

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one purchased by her friend the previous week. She found the button, inscribed "Copulation Not Masturbation," and purchased...

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