Birdsell v. State
| Decision Date | 02 October 1959 |
| Citation | 9 McCanless 631,330 S.W.2d 1,205 Tenn. 631 |
| Parties | , 205 Tenn. 631 Dale E. BIRDSELL v. STATE of Tennessee. |
| Court | Tennessee Supreme Court |
Wallace P. Lopez, Memphis, for plaintiff-in-error.
William D. Grugett, Asst. Atty. Gen., for the State.
Birdsell was indicted, tried and convicted of the offense of contributing to the delinquency of a minor under Section 37-270, T.C.A. The jury fined him $1,000 and sentenced him to serve 11 months and 29 days in the Shelby County Workhouse. He seasonably filed a motion for new trial and perfected his appeal to this Court where assignments of error, briefs, and arguments have been heard. We now have the matter for disposition.
Birdsell had various aliases and was engaged in part of his activities as a model agent in various parts of the United States. He met the prosecutrix, Patricia Nettles, a young girl, sixteen years of age, at the Ritz Hotel in Washington, D. C., where she had come after running away from home. On the day that he met her in this hotel, he dined with her and convinced her that she was intended to be a model. While in Washington she signed a contract, which is long and in a very fine print, to accomplish this purpose. They remained in Washington for some four or five days before going to Winchester, Virginia, where they remained a few days and then returned to Washington for three or four days. At the defendant's suggestion then they left Washington by way of bus to go to New Orleans to further her career. On their way from Washington to New Orleans they came through Nashville, Tennessee, where they stayed three or four days and registered in the hotel here as man and wife. After being in Nashville two or three days they went on to Memphis where they registered as man and wife at the King Cotton Hotel.
The testimony in this record is in the narrative form and we have very carefully read it word for word and from it we relate the facts above and as follows. This girl testifies that she at no time had sexual relations with the plaintiff in error but that while they were staying in Nashville she met a soldier and after a few beers she did have sexual relations with him. As a result of this the plaintiff in error found out that she had done this and threatened her with prosecution for perjury and to have the solider prosecuted for rape. In making these threats to her he wrote out a statement, which is filed in the record, and showed it to her, of what sentence she would be given for perjury and what the offense of rape amounted to.
On the first night after they arrived in Memphis the defendant insisted upon taking some pictures of this sixteen year old girl in the nude in their hotel room. She permitted these pictures to be taken and after this was done he insisted that she go to bed with him in the nude. She says that she went to bed with him but that she wore her pants. She states, and so does he, that they had no sexual relations. The next morning after these pictures were taken and this occurrence in the bed, she evidently became frightened and went first to see a Lutheran preacher which was her faith, not finding him there she went on to another minister and fully disclosed to this minister what was going on. As a result of this statement of the girl to this minister, a Mr. Williams, the police were called (she insisted at first that the police not be notified) and they with the girl went to the room of the defendant and this girl where he soon arrived. He was arrested in this room and placed in the Shelby County Jail where he, according to statements of counsel at the Bar, still remains.
The plaintiff in error has made 11 assignments of error. The first three of these assignments relate to the preponderance of the evidence and very vigorously insist that there is no evidence to sustain this conviction of contributing to the delinquency of a child, nor is there any corroborative evidence to support the statements of this young girl.
We have briefly above reviewed what she relates as having happened. In our judgment this constitutes very material evidence of contributing to the delinquency of a child. One living in modern times can hardly imagine anything more enticing to a sixteen year old girl than to be told of her physical beauty and charm to such an extent that she could be a model or be in the movies. Thus it was that when this man insisted on taking her picture in this condition this clearly amounted to a contribution to her delinquency. She testifies that she had run away from home, that she had come to Washington with her father and was going to do some work and some shopping but that she decided to leave home because she and her mother had not gotten along. What could be more of a contribution to what any adult man could imagine with the future than having this young girl pose in the nude for pictures and then sleep various nights with the man. The defendant was 37 years of age. It makes no difference whether or not he had sexual intercourse with this girl at the time, what he did certainly was a direct contribution to her delinquency.
We think, too, that there is ample corroboration of these acts. In the first place the defendant took the stand in this case and substantially corroborates the various statements of the female. He corroborates it to such an extent that he admits that he does have a camera and he does have these contracts. He admits that this is part of his profession and has various contracts and licenses, etc. He dealt under one name or the other, and conceded that he was recruiting models. Another corroboration is when this young girl went to this preacher the morning after this and related these things. We think this likewise amounts to corroboration because a young girl of the kind would hardly go in a strange town to a strange preacher and relate these acts if they had not occurred. So it is that we think that the jury had ample material evidence properly corroborated to support these accusations.
Assignment of error number 4 questions the constitutionality of Section 37-270, T.C.A., under which this indictment is found because it is said that it (the indictment) is too vague and uncertain to inform the defendant, plaintiff in error here, as to the offense of which he is charged. We think clearly that this assignment must be overruled because the language of the indictment charges the plaintiff in error with contributing to the delinquency of a named girl. The contributing to the deliquency of a child does not have to be or cannot specifically be defined.
When the charge of contributing to the delinquency of a child or children is made against a party this term is broad enough and may involve a single act or course of conduct, and may be committed in an unlimited variety of ways which tend to produce or encourage or to continue conduct with a child which would amount to delinquent conduct. Commonwealth v. Stroik, 175 Pa.Super. 10, 102 A.2d 239.
In addition this defendant is specifically charged in this indictment with sufficient notice of what he is going to have to defend. It charges him with having this girl to pose for photographs in the nude and persuading her to remain out of the control of her parents. We hardly see how more notice could be given the defendant than is given under this indictment. We therefore think that there is no violation of Article 1, Section 8 of the Constitution of this State or any other constitutional provision that we know of. This assignment must therefore be overruled.
The next assignment of error questions the jurisdiction of the grand jury and the criminal court of Shelby County to deal with this matter. It is argued that Chapter 177 of the Public Acts of 1955 which is codified as Section 37-242 et seq., of the Code does not permit the indictment of one who contributes to the delinquency of a minor but that the defendant first must be investigated and found guilty of delinquency by the juvenile court of the various counties. It is said that that court (Juvenile Court) must swear out a warrant and it is only from this that the grand jury may return an indictment....
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