Loveland v. State
Decision Date | 30 January 1939 |
Docket Number | Criminal 875 |
Citation | 86 P.2d 942,53 Ariz. 131 |
Parties | EDDIE LOVELAND and KATHRYN LOVELAND, Appellants, v. STATE OF ARIZONA, Respondent |
Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment affirmed.
Mr John C. Lee and Mr. John W. Ray, for Appellants.
Mr. Joe Conway, Attorney General, and Mr. W. E. Polley, Assistant Attorney General, for the State.
The appellants, Eddie Loveland and Kathryn Loveland, were convicted in the superior court of Maricopa county by the verdict of a jury of the offense of contributing to the delinquency of Dora Ragsdale, a female child of the age of fourteen years. Woodrow Morton, charged jointly with the said appellants with the same offense, entered a plea of guilty. This appeal is from the judgment pronounced upon the verdict against the appellants.
The charging part of the information is in the following language:
"The said Eddie Loveland, Kathryn Loveland and Daniel Woodrow Morton on or about the 24th day of September, 1938, and before the filing of this information at and in the County of Maricopa, State of Arizona, and while in the company of one Dora Ragsdale, a minor of the age of fourteen years, did then and there wilfully and unlawfully furnish to and cause her the said Dora Ragsdale, to drink and consume intoxicating liquors to the extent of causing her, the said Dora Ragsdale, to become intoxicated, all of which acts will cause and encourage the said Dora Ragsdale to grow up to live an idle dissolute and immoral life."
The judgment of conviction is attacked upon seven different grounds. A discussion of four of these assignments will necessarily embrace and dispose of all points urged on appeal.
that the superior court does not have original jurisdiction and that the information was void because a preliminary hearing was not held.
The same question was presented to this court in the case of Adams v. Stanford, Judge, Superior Court, etc., 19 Ariz. 237, 240, 168 P. 641, 642, and after considering section 6, article 6 of the Arizona Constitution and the Code provisions carrying it into effect, the issue was disposed of in the following language: "Therefore, superior courts have jurisdiction over every misdemeanor when the same is prosecuted by indictment or information presented to such court."
It is next contended that the trial court erred in rejecting evidence offered by the defense to prove that Dora Ragsdale was in an intoxicated condition when she came to the home of the Lovelands on the 24th day of September, 1938, and that such condition was caused by someone other than the appellants. This we feel is without merit since a violation of the same law by another or others on the same day or at any other time could not be accepted as an excuse or in mitigation of the offense charged to the Lovelands. An examination of the record also discloses that no attempt was made on the part of the defense to preserve this point for the consideration of this court by a proper offer of proof. Collins v. State, 37 Ariz. 353, 294 P. 625; Riley v. State, 50 Ariz. 442, 73 P.2d 96.
Appellants further contend that the court erred in instructing the jury that if they believed from the evidence beyond a reasonable doubt that defendants committed any act calculated to cause delinquency they should find the appellants guilty of the offense charged. In the first place we are not willing to agree, in view of the discussion following, that the instruction is erroneous in form or substance, but feel that the assignment can be more expeditiously disposed of by a reference to the reporter's transcript of the evidence. The instruction criticized is found on page 182 and is in the following language:
This was invited by the request of counsel for the defendants, found upon pages 181 and 182, in the following language:
Obviously the defendants will not be permitted to lead the court into error, if it can be called error, and then complain of it.
Last and more serious than any of the assignments foregoing is the contention of the appellants that the information is not sufficiently definite and certain to advise them whether they are charged with the violation of the provisions of section 4640, Revised Code of 1928, or chapter 91, Session Laws of 1933, and that if the information was drawn under the former it is fatally defective under the ruling of this court in Jackson v. State, 36 Ariz. 446, 286 P. 824, while if it purports to charge an offense under the provisions of the law of 1933 it states no offense because the law itself fails to define an offense and is indefinite, uncertain and unconstitutional by reason thereof.
To dispose of this issue it will be necessary to first briefly review the history of this legislation. The provisions of section 4640, supra, were before this court in the Jackson case and we held in keeping with the weight of authority that to sustain a conviction it must be alleged and proved that the child was delinquent and that the accused caused or contributed to the same. Presumably to correct the shortcoming pointed out in this decision, the Eleventh Regular Session of the legislature by its House Bill No. 144, approved March 18, 1933, expressly provided:
This bill became chapter 91 of the Session Laws of 1933, supra, and further provided (in sec. 1):
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