Mayhew v. State

• Decision Date: 27 October 1920
• Docket Number: 23,742
• Citation: 128 N.E. 599,189 Ind. 545
• Parties: Mayhew v. State of Indiana
• Court: Indiana Supreme Court

128 N.E. 599

189 Ind. 545

Mayhew v. State of Indiana

No. 23,742

Supreme Court of Indiana

October 27, 1920

From Marion Criminal Court (50,112); James A. Collins, Judge.

Prosecution by the State of Indiana against Elizabeth Mayhew. From a judgment of conviction, the defendant appeals.

Reversed.

Holmes & McAllister, for appellant.

Ele Stansbury, Attorney-General, and Remster A. Bingham, for the state.

OPINION

Willoughby, J.

The appellant was convicted in the criminal court of Marion county on a charge of contributing to the delinquency of a female child under the age of eighteen years. The judgment was that she pay a fine of $ 300 and costs, and be imprisoned in the correctional department of the Indiana Woman's Prison for a term of six months, and from such judgment she appeals and assigns as error that: (1) The court erred in overruling the appellant's motion to dismiss the affidavit and prosecution in this cause. (2) The court erred in overruling appellant's motion to quash the affidavit. (3) The court erred in overruling appellant's motion in arrest of judgment.

The affidavit which was filed in the juvenile court on July 28 1919, is as follows: "Orville Hudson, being duly sworn upon his oath says that he is informed and believes that Elizabeth Mayhew, late of Marion county, Indiana, did on or about the 28th day of July, 1919, and within said county and state, unlawfully cause and encourage one Elsa Gorham, a girl under the age of eighteen years to commit an act of delinquency, as defined in the statute in such case made and provided, in this, to wit: By then and there encouraging said Elsa Gorham to be guilty of indecent and immoral conduct, to wit, adultery and fornication and by then and there permitting said Elsa Gorham to enter and remain in a house of prostitution then and there situate and by then and there causing and encouraging said Elsa Gorham to associate with immoral persons, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Indiana."

On July 29, 1919, the defendant filed an affidavit and motion for change of venue and in such affidavit asked that the venue be changed to the criminal court of Marion county, Indiana. The motion was sustained and the venue changed to the Marion Criminal Court September 2, 1919. On January 8, 1920, the defendant moved to dismiss the prosecution for the reason that the jurat to the affidavit filed in the juvenile court was insufficient. This motion was overruled. On the same day the affidavit was amended by the prosecuting attorney by reswearing affiant thereto, and attaching the jurat of such prosecutor to such amended affidavit.

The defendant then filed a motion to quash the amended affidavit for the reasons that: (1) "Said affidavit does not state facts sufficient to constitute a public offense. (2) The affidavit does not state the offense with sufficient certainty."

This motion being overruled by the court, the defendant waived arraignment and entered a plea of "not guilty," and on this issue appellant was tried.

The amendment of the affidavit by the prosecuting attorney was authorized by statute, § 2043 Burns 1914, Acts 1905 p. 584, § 172, and the court properly refused to dismiss the charge against the defendant on account of a defect in the jurat to the affidavit filed in the juvenile court.

The appellant's motion to quash assigns two of the causes named in § 2065 Burns 1914, Acts 1905 p. 584, § 194. The first cause named is that the facts stated in the affidavit do not constitute a public offense; the other that the affidavit does not state the offense with sufficient certainty.

This prosecution is founded upon §§ 1, 2, ch. 111, Acts 1917 p. 341, § 1641 Burns' Supp. 1918. Section 1 of said act provides:

"That the words 'delinquent child' shall include any boy under the full age of sixteen (16) years and any girl under the full age of eighteen (18) years;

Who shall violate any law of this state or any ordinance of a city;

Or who is incorrigible;

Or who knowingly associates with thieves or other vicious or immoral persons;

Or who is growing up in idleness or crime;

Or who knowingly visits or patronizes any policy shop or place where any gaming device is or shall be operated;

Or who patronizes, visits or enters any saloon or wine room where intoxicating liquors are sold;

Or who knowingly patronizes, visits or enters any public poolroom or bucket shop;

Or who wanders about the streets of any city in the nighttime without being on any lawful business or occupation;

Or who wanders about in any railroad yards or upon railroad tracks;

Or who jumps upon any moving train or enters any car or engine without lawful authority;

Or who uses vile, obscene, vulgar, profane or indecent language;

Or who smokes cigarettes;

Or who loiters about any school building or school yard;

Or who is guilty of indecent or immoral conduct;

Any boy under the full age of sixteen (16) years or any girl under the full age of eighteen (18) years who shall commit any of the acts herein specified shall be deemed a delinquent child and shall be proceeded against as such in the manner provided by law for the prosecution of persons charged with misdemeanors, and upon conviction thereof, may be released on probation or may be dealt with by the court in such manner as may appear to be for the best interest of the child."

Section 2 of said act (§ 1648 Burns' Supp. 1918) provides:

"It shall be unlawful for any person to cause or encourage any boy under the full age of sixteen (16) years or any girl under the full age of eighteen (18) years;

"To commit any act of delinquency as defined and specified in section one (1) of this act;

"Or for any purpose to send, or cause to be sent, any such child to, or permit any such child to enter or remain in, any house of prostitution, or any saloon or wine room where intoxicating liquor is sold, or any policy shop, or gambling place, or any pool room or any bucket shop, knowing them to be such;

"Or to knowingly encourage, contribute to or in any way cause any such child to violate any law of this state or the ordinance of any city;

"Or to knowingly permit, contribute to, encourage or cause any such child to be

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