People v. Bailey

• Decision Date: 29 December 1954
• Docket Number: No. 8,8
• Parties: PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Elaine BAILEY, Defendant and Appellant.
• Court: Michigan Supreme Court

Page 785

67 N.W.2d 785

341 Mich. 592

PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Elaine BAILEY, Defendant and Appellant.

No. 8.

Supreme Court of Michigan.

Dec. 29, 1954.

Sigler, Anderson & Carr, Lansing, for defendant and appellant.

Paul C. Younger, Ingham Co. Pros. Atty., R. William Reid, Asst. Pros. Atty., Lansing, for plaintiff and appellee.

Before the Entire Bench, except CARR, J.

DETHMERS, Justice.

Defendant was tried before the court, without a jury, on a criminal charge of knowingly and willfully debauching the person and depraving the morals of a boy under the age of 15 years in violation of C.L.1948, § 750.339, Stat.Ann. § 28.571. From conviction and sentence thereon she appeals.

Defendant states the question involved to be:

'Is a finding that the respondent knew the age of the boy involved necessary to a conviction * * *?'

If by defendant's affirmative answer she means that a finding of actual positive knowledge on her part of the boy's age must be expressed in written findings or an opinion of the trial court, as a prerequisite to finding her guilty, her theory is rejected. No written findings of fact or opinion needed to be made or filed whatsoever. See People v. Ingersoll, 245 Mich. 530, 222 N.W. 765. If, on the other hand, defendant's position is limited to the proposition that such knowledge is an essential element or ingredient of the crime, we believe it well taken. The words 'knowingly and wilfully', as used in the statute, disclose a legislative intent that not only knowledge of the act itself and the will and intent to commit it, but also knowledge that the boy is under 15 years of age shall be essential to the commission of the crime. A similar question was presented in Bonker v. People, 37 Mich. 4, in which defendant, a justice of the peace, was charged with solemnizing a marriage, knowing that there was a legal impediment to the marriage of the girl involved, namely, that she was under age of 16 years. This Court held that the question of defendant's knowledge of the girl's age should have been left to the jury.

Is it essential to conviction that the people prove by direct testimony that defendant had actual, positive knowledge of the boy's age? In State v. McCormick, 56 Wash. 469, 105 P. 1037, 1038, the court stated:

'The Code, (2 Ballinger's Ann.Codes & St. § 7313 * * *) provides that 'every person who shall knowingly sell or give to a minor intoxicating or spirituous liquors without the written permission of the parent or guardian of such minor shall, on conviction thereof, be fined,' etc.

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'Complaint is made that the court committed error in defining the word 'knowingly.' In substance the court said to the jury that the sale was made knowingly within the meaning of the statute, if the appellant's bartender knew, or, in the exercise of reasonable prudence should have known, that Nagley was a minor at the date of the alleged sale. The word was correctly defined. State v. Constatine, 43 Wash. 102, 86 P. 384, 117 Am.St. 1043.'

In the cited Constatine case the Washington court, in considering the same statute discussed in the McCormick case, said [43 Wash. 102, 86 P. 385]:

'The substance of these instructions is that if Dunlap knew that Turner was a minor, or had such information, from his appearance or otherwise, as would lead a prudent man to believe that he was a minor, and if followed by inquiry, must bring knowledge of that fact home to him, then the sale was made knowingly; and we think this is a correct statement of the law.'

Similarly, in Bonker v. People, supra, this Court said:

'No doubt where guilty knowledge is an ingredient in the offense, the knowledge must be found; but actual, positive knowledge is not usually required. In many cases to require this would be to nullify the penal laws. The case of knowingly passing counterfeit money is an illustration; very often the guilty party has no actual knowledge of the spurious character of the paper, but he is put upon his guard by circumstances which, with felonious intent, he disregards. Another illustration is the case of receiving stolen goods knowing them to be stolen: the guilt is made out by circumstances which fall short of bringing home to the defendant actual knowledge. He buys perhaps of a notorious thief, under circumstances of secrecy and at a nominal price; and the jury rightfully hold that these circumstances apprise him that a felony must have been committed. Andrews v. People, 60 Ill. 354; Schriedly [Shriedley] v. State, 23 Ohio St. 130. If by the statute now under construction actual personal knowledge is required, the statute may as well be repealed; for it can seldom be established even in the grossest cases.'

In Bonker, after outlining the facts as follows, that the defendant justice of the peace had lived near the girl in question and had known her for three or four years, that their families were acquainted, that he had asked her age at the time she sought to be married and she had stated it to be 16 years, but that he had failed, as required by statute, to examine one of the parties on oath with respect thereto, this Court concluded:

'We think there is no doubt that in this case the jury would have been warranted in finding, on the facts which appear, that the defendant had knowledge of the impediment * * *'

The record at bar discloses that defendant was 31 years of age, that she had a son of her own 14 years of age, that, as relates to the 14-year old boy in question, she had been very intimate with him, played with his privates, and had sexual intercourse with him; that he and other teen age boys of tender years, to quote the record:

'* * * had been resorting to the home of respondent much of the time for a period of upwards of a year and more. That they had had the run of the premises both night and day, including the house or home of respondent, food, beer to drink, smoked cigarettes, and often slept there over night. That they had gone there, a journey of some distance from their home as late as 11:00 or 12:00 at night and stayed as late as at least 3:00 in the morning at which time respondent would take one or more of them, depending upon the situation, to their homes in her car. It is undisputed that this situation had gone on to the extent that it had...