Davidson v. State, 30888
| Decision Date | 22 January 1968 |
| Docket Number | No. 30888,30888 |
| Citation | 233 N.E.2d 173,249 Ind. 419 |
| Parties | Sewell DAVIDSON, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
William C. Erbecker, Indianapolis, for appellant.
John J. Dillon, Atty. Gen. of Indiana, Murray West, Deputy Atty. Gen., for appellee.
The appellant was convicted on three counts of contributing to the delinquency of a minor in the Marion Juvenile Court, and appeals from the overruling of his motion for a new trial. The specific allegations of the charge were that the appellant 'unlawfully committed an act of contributing to the delinquency of a minor against the following child, Eloise Bell Merriman, age 14 years, a minor female under the age of 18 * * *'
1. By causing her to desert the home of her parents.
2. To be guilty of indecent conduct.
3. To be guilty of immoral conduct.
4. To deport herself so as to wilfully endanger the morals of herself.
See Burns' Ind.Stat.Anno. § 10--812 (1956 Repl.)
The first contention made is that the evidence fails to show that the appellant 'wilfully contributed to the delinquency of the alleged victim'. In other words, it is argued that it must be shown that the appellant knew this minor was under the age of 18 at the time he indulged in certain immoral conduct with her.
It is urged that the girl in question was large in size and might deceive the average individual as to her exact age. There is no evidence that appellant was told what her age was nor is there any evidence that he made any inquiry to discover what her age was. The State on the other hand, contends that scienter is not a necessary element in contributing to the delinquency of a child, and cites cases with reference to statutory rape on that question. Tullis v. Shaw (1908), 169 Ind. 662, 83 N.E. 376.
In Heath v. State (1909), 173 Ind. 296, 302, 90 N.E. 310, 312, in a statutory rape case, this Court said:
* * *'
See also: Annotation in 8 A.L.R.3d, p. 1100.
It is further urged in this case the evidence shows that the appellant was actually guilty of statutory rape on the girl in question and that constitutes in itself an act of contributing to the delinquency of the girl. However, when we examine the statute on statutory rape (Burns' Ind.Stat.Anno. § 10--4201 (1956 Repl.)), we find that there is not included therein any requirement of knowledge or 'knowingly' doing the prohibited act with a girl under the prohibited age, except with reference to females who are feeble-minded, etc. We therefore do not think there is a proper analogy between the two statutes, since upon examination of the statute defining the crime of contributing to the delinquency of a child, in certain particulars therein we find the use of the words Ind.Stat.Anno. § 10--812 (1956 Repl.).
The opinions in this state in the interpretation of this statute are somewhat confused. In Marsh v. State (1937), 104 Ind.App. 377, 8 N.E.2d 121 the appellant was charged with permitting a female child under the age of 18 to enter a house of prostitution, 'appellant then and there knowing said house of prostitution to be such'. The court held that scienter, or the knowledge, had reference only to the places enumerated in the statute, and that charges with reference to contributing to the delinquency of a child which would not involve a place, need not allege knowledge or scienter.
However, in Embry v. State (1951), 229 Ind. 179, 96 N.E.2d 274, an appellant was charged with contributing to the delinquency of a child under the age of 16 by 'preventing her from attending a public school while such school was in session.' The court there said in 229 Ind. at p. 181, 96 N.E.2d at p. 275:
'The indictment is not sufficient for that purpose, for the statute makes such conduct an offense only when it is knowingly done.'
The opinion further stated that scienter on the part of the accused must be charged in the indictment or affidavit. Such was the case here. The charge here in each instance alleges scienter and that the appellant knowingly committed the offense.
We therefore have only the question remaining as to whether or not the appellant knew or ought to have known that the girl in question was under age. We feel this is a question of fact, to be determined by the triers of the fact. A jury or the trial court has before it the evidence and appearance of the prosecuting witness or female child involved. They see her; they observe her actions, her manner, her speech; all of which cannot be put into the record with the accuracy and details that visibly appear and are evidents to the triers of the fact.
In Dolke v. State (1884), 99 Ind. 229, a similar question arose. The appellant was charged with the sale of intoxicating liquors to a minor. He claimed that he did not know the minor was under age. There was no evidence other than the appearance of the minor with reference to his age. The court said in 99 Ind. at p. 231:
In the case before us the prosecuting witness took the stand and stated she was 14 years of age at the time of the alleged offense, as charged. Her physical condition, size and physical appearance as a witness on...
To continue reading
Request your trial
-
Marquez v. State
...could never withdraw his waiver without the State's consent because a right, once waived, no longer exists. Davidson v. State, 249 Ind. 419, 233 N.E.2d 173, 176 (1968).3 Several intermediate courts have adopted this prevailing view in apparent conflict with the highest courts of their state......
-
Sharpe v. State
...an accused has effectively waived his right to a jury trial, he has no constitutional right to withdraw the waiver. Davidson v. State (1968), 249 Ind. 419, 233 N.E.2d 173. The withdrawal of a voluntary waiver of jury trial is within the sound discretion of the trial court. Stevenson v. Stat......
-
Stevenson v. State
...a defendant has effectively waived his right to a jury trial, he has no constitutional right to withdraw his waiver. Davidson v. State (1968), 249 Ind. 419, 233 N.E.2d 173. The withdrawal of such a waiver is within the discretion of the trial court. Williams v. State, supra, 307 N.E.2d at I......
-
Shorter v. State
...runaways with food and lodging and thereby facilitate a runaway's absence from home. This case is not analogous to Davidson v. State (1968), 249 Ind. 419, 233 N.E.2d 173, upholding a conviction of contributing to the continuing delinquency of a minor. In the instant case, the act of delinqu......