Anderson v. State

• Decision Date: 23 August 1963
• Docket Number: No. 271,271
• Citation: 384 P.2d 669
• Parties: Don R. ANDERSON, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 669

384 P.2d 669

Don R. ANDERSON, Appellant, v. STATE of Alaska, Appellee.

No. 271.

Supreme Court of Alaska.

Aug. 23, 1963.

Henry J. Camarot, McNealy, Merdes & Camarot, Fairbanks, for appellant.

Victor D. Carlson, Dist. Atty., Fairbanks, for appellee.

Before NESBETT, C. J., and DIMOND and AREND, JJ.

NESBETT, Chief Justice.

The appellant, defendant below, was convicted of contributing to the delinquency of a child under the age of eighteen years by persuading her to engage in sexual intercourse with him. ¹

Appellant's first point is that since the statute fails to define the word 'immoral', it is rendered so vague as to be unconstitutional under article I, section 11 of the Alaska Constitution ² and the Sixth Amendment to the United States Constitution.

The identical question has already been resolved against appellant's contention by Alaska courts. ³ We agree with these authorities. A reading of the entire statute in context should leave no one in doubt as to the meaning of 'immoral'.

In any event, appellant has failed to show how the undefined use of the word 'immoral' in the statute has prejudiced him. The indictment charged that appellant 'did wilfully, unlawfully and feloniously commit an act which tended to contribute to the delinquency of a child under the age of eighteen (18) years, said act being the persuading of [prosecutrix] * * * age sixteen (16) years, to engage in sexual intercourse with him * * *.' The word 'immoral' nowhere appears in the wording of the indictment and in our view the charge clearly informed appellant of the nature and cause of the accusation.

Appellant's second point is that the state failed to prove by competent testimony the prosecutrix's age at the time of the alleged offense. The prosecutrix testified that she was sixteen years of age at the time of the alleged offense. Appellant's objection to hearsay testimony was overruled.

The record reveals that prosecutrix had been living with her father in Minnesota until January of 1961. Her mother had died the previous summer. When her father's brother and his wife offered to take the prosecutrix with them to live, the offer was accepted. Prosecutrix accompanied her aunt and uncle to California and Washington and then to Fairbanks, Alaska, where the offense was alleged to have occurred in May of 1961. Prosecutrix had represented her age to be nineteen in order to obtain employment at a Fairbanks drive-in and on several occasions had accompanied her aunt to local bars. There was testimony that appellant had been advised by prosecutrix's aunt prior to the time of the alleged offense that prosecutrix was sixteen years of age. There was also testimony that appellant overheard a conversation between prosecutrix's aunt and an investigating officer during which the aunt stated that prosecutrix's age was sixteen.

The rule is well established that a witness may testify as to his own age even though such testimony is hearsay. ⁴ It is true that the state did not elicit from the prosecutrix testimony as to how she had learned that she was sixteen years of age. On the other hand, appellant's counsel made no attempt to inquire into the question of how she knew her age, although she was cross-examined at some length on other aspects of the case. The fact that she had spent her entire life with her mother and father makes it more than probable that she acquired knowledge of her age directly from them before leaving to live with her aunt and uncle. Testimony that she had on at least one occasion represented her age to be nineteen was contradictory. The weight to be given to her testimony was a matter for the jury to determine. ⁵ We find no error here.

Appellant next contends that the state failed to prove that appellant had actual knowledge that prosecutrix was under the age of eighteen.

The answer to this argument is that it was not necessary for the state to prove that appellant had actual knowledge of the fact that prosecutrix was under the age of eighteen. The object of the statute is to protect all children under the age of eighteen. Persons having illegal relations with children do so at their periol. Appellant's belief that prosecutrix was over the age of eighteen, even though it may have had some support, is no excuse. ⁶

The statute upon which the indictment was based makes the commission of any of the acts enumerated a felony. ⁷ The word 'wilfully' nowhere appears therein. The indictment however, charged appellant with 'wilfully, unlawfully and feloniously' committing the act. Appellant argues that since the indictment charged a wilful commission of the act, knowledge that prosecutrix was under the age of eighteen was an essential element of the crime charged which was not proved.

There is no merit to this argument. The statute does not make specific intent an ingredient of the offense. It was therefore not necessary to prove that appellant had the specific intent to commit the act with a child whom he knew to be under the age of eighteen years in order to sustain a conviction under the statute. ⁸ The jury was properly instructed that the only criminal intent that they need find in this case was the intent to commit the act charged.

Appellant next argues that since the statute requires that the act charged be one which would 'contribute to the delinquency' of the child, the state was obligated to establish as a part of its case to what extent the prosecutrix was already a delinquent, so that the jury could determine whether or not the act complained of would contribute to her delinquency.

We do not agree. The intent of the act was to protect all children under the age of eighteen. The statute makes the act or omission a crime if either tends to cause delinquency, encourages delinquency, encourages the continuation of a state of preexisting delinquency, contributes to delinquency, or contributes to the maintenance or continuation of a pre-existing state of delinquency. We do not recognize that a child can become so irreconcilably delinquent that no act or omission can further impair its status, as appellant seems to argue. There is no '* * * open season as to any child who has once become a delinquent.' ⁹ The state therefore was not required to establish the child's pre-existing status as to delinquency. If the act or omission proved would cause, tend to cause, encourage or contribute to the delinquency of one not delinquent, then the same act or omission is a crime when committed as to one already a delinquent.

Appellant next claims that the trial court erred in not requiring the state to elect on what day he was alleged to have committed the crime charged.

The indictment alleged 'That on or about the 29th, 30th and 31st day of May, 1961' the appellant committed the act, etc. Appellant's argument is that he was prejudiced by being required to account for his time over a seventy-two hour period when he might otherwise have been able to concentrate on preparing a defense as to his activities on a day certain.

Appellant has failed to point out wherein he was prejudiced in any particular respect or why it was an abuse of discretion for the trial court to deny his request. In the absence of a showing that a substantial right has been prejudiced the action of the trial court will not be disturbed on appeal. ¹⁰

The state produced proof that appellant had actually engaged in sexual intercourse with the prosecutrix at least twice on each of the dates alleged in the indictment.

Appellant's next claim of error is that his right to a fair trial was prejudiced by questions asked by the District Attorney which by innuendo reflected on appellant's character.

We have examined the transcript as to all of the thirteen instances cited by appellant. In eight instances appellant's objection was either sustained, or the question was withdrawn or never answered. In one instance the objection was withdrawn and in another instance no objection was made. In the three instances where appellant's objection was overruled the court was clearly correct. We believe appellant's statement of the innuendo created by each of the questions is exaggerated.

We shall rule specifically on only two of the matters mentioned above. The first is whether the court erred in permitting the prosecutor to ask a witness whether he had been convicted of a felony.

This was not error. At the time of trial section 58-4-61 A.C.L.A.1949 was in force and provided that for impeachment purposes it might be shown by examination of the witness or the record of the judgment that he had been convicted of a crime. ¹¹ Also in force was section 58-6-12 A.C.L.A. 1949 providing in part that '* * * a witness must answer as to the fact of his previous conviction for felony.' ¹²

The foregoing statutes, construed together, were long ago held to permit the prosecutor to prove that the defendant had been previously convicted of a misdemeanor. ¹³ As far as we are aware Alaska courts have uniformly permitted the prosecutor to ask a witness the question of whether he had been convicted of a crime.

When all evidence statutes were incorporated into rules by this court in the exercise of its constitutional rule-making power, the seeming inconsistency between sections 58-4-61 and 58-6-12 A.C.L.A.1949 was perpetuated. At the present time Civil Rule 43(g)(11)[b] provides in part that '* * * it may be shown by the examination of the witness or the record of a judgment that he has been convicted of a crime'. Civil Rule 43(h)(7) provides in part that 'A witness must answer as to the fact of his previous conviction for a felony'. ¹⁴ A rules amendment now in process of adoption will resolve the ambiguity making it clear beyond doubt that a witness may be asked whether he has been convicted of a crime.

The second point upon which we shall rule is the claim that it was reversible error for the prosecutor to remark, in referring to appellant in closing argument, 'The fact is that if he...