People v. Miller

• Decision Date: 29 October 1956
• Docket Number: Cr. 5639
• Citation: 302 P.2d 603,145 Cal.App.2d 473
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Dorothy MILLER and Neal Collins, Defendants, Neal Collins, Defendant and Appellant.

Page 603

302 P.2d 603

145 Cal.App.2d 473

The PEOPLE of the State of California, Plaintiff and Respondent, v. Dorothy MILLER and Neal Collins, Defendants, Neal Collins, Defendant and Appellant.

Cr. 5639.

District Court of Appeal, Second District, Division 1, California.

Oct. 29, 1956.

Hearing Denied Nov. 28, 1956.

Samuel C. McMorris, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., Elizabeth Miller, Deputy Atty. Gen., for respondent.

WHITE, Presiding Justice.

In an information filed by the District Attorney of Los Angeles County, appellant was charged in Count I with the offense of contributing to the delinquency of a minor, a misdemeanor, Welfare and Institutions Code, sec. 702, committed on or about June 15, 1955, in that he used and occupied a bed with Dorothy Miller, not being married to her, in the presence of Peggy Dee Miller, a minor person of the age of 12 years, and committed acts which would tend to cause the minor to lead an idle, dissolute, lewd and immoral life, and which did cause and tend to cause the minor to become and to remain a person within the provisions of Section 700, Welfare and Institutions Code of the State of California. He was charged in Count II with the crime of contributing to the delinquency of a minor on or about July 10, 1955 in the same manner as in Count I. Appellant pleaded not guilty and trial by jury was duly waived. Pursuant to stipulation, the People's case was submitted on the transcript of the preliminary examination. The minor, Peggy Dee Miller, gave further testimony and appellant testified in his own behalf. The court adjudged him not guilty of the offense charged in Count I, and guilty as charged in Count II. Motion for a new trial was denied. Appellant was sentenced to serve a term of one year in the county jail. Execution of sentence was suspended and he was granted conditional probation. From the judgment, Penal Code, section 1237, subd. 1, and the order denying his motion for a new trial, appellant prosecutes this appeal.

With reference to the factual background surrounding this prosecution we regard the following as a fair epitome:

During the months of June and July, 1955, the prosecutrix, Peggy Dee Miller (aged 12), her mother, Dorothy Miller, and the appellant occupied a five-room apartment on Raymond Avenue in Los Angeles. Appellant and Mrs. Miller were not married to each other. The bedroom was connected to the living room by a very large door, one section of which was always open. There was a large bed in the bedroom and a couch in the living room. At least a portion of the couch was visible looking through the door from a vantage point on the bed. Sometimes Peggy slept on the couch and her mother and appellant in the bed, and other times she slept in the bed and they on the couch.

One night, around July 10, 1955, it was decided that Peggy could have the bed. It was late and she was tired so appellant and her mother told her that they would wake her and put her on the couch when they finished watching television. Some time later she awakened, heard a noise in the living room, sat up in bed, 'scooted down in the bed', and peered into the living room. The room was illuminated by a small red light and she observed appellant and her mother engaged in an act of sexual intercourse. As a witness in his own behalf appellant testified he had known the prosecutrix and her mother for approximately four years; that during the aforesaid months of June and July he frequently stayed all night at the Miller abode. He testified that he would sleep on the couch on these occasions and that he never slept with Mrs. Miller. He denied having sexual relations with Mrs. Miller during this time. He admitted having had intercourse with her during the year prior to June at his establishment but denied ever having occupied a bed with her or having sexual relations with her in the presence of the latter's daughter.

According to appellant's description of the Miller apartment a person occupying the bed could not see the couch in the living room unless he 'stood up and walked.'

Appellant asserted that he had developed a paternal attitude towards Peggy and was concerned about the fact that she was keeping company with an older man. He had several 'discussions' with Peggy on the subject and told her on one occasion that he might call the authorities if she did not discontinue the relationship and get back to school. Peggy denied that such a threat was made.

Appellant testified further that Peggy called him about two weeks before the trial to ask for some belongings. He asked her why she had made the accusation and she told him that Juvenile Officer Kay Sheldon was 'responsible for all the activity.'

As his first ground for reversal appellant attacks the constitutionality of Section 702 of the Welfare and Institutions Code, contending that the statute is too vague and consequently invalid under the due process clause of the 14th Amendment to the Constitution of the United States. This contention is unavailing because it has heretofore been decided adversely to appellant by the courts of this state. People v. Deibert, 117 Cal.App.2d 410, 417-420, 256 P.2d 355.

Appellant's next contention is that the facts alleged in the information and proved at the trial do not constitute a public offense. He insists that his conduct, as herein narracted, does not tend to corrupt the morals of a minor. That 'under California law, the statute (Welfare and Institutions Code, Sec. 702) is to be construed as only such acts or omissions as relate directly to the minor.' In other words, that the minor must be a participant in the act in question before it can be said that the latter is directly affected thereby. We are not in accord with appellant's reasoning in this regard. Section 702 of the Welfare and Institutions Code provides, in part, that 'Any person who commits any act or omits the performance of any duty, which act or omission causes or tends to cause or encourage any person under the age of 21 years to come within the provisions of any of the subdivisions of Section 700 or which act or omission contributes thereto, or any person who, by any act or omission, or by threats, commands, or persuasion, induces or endeavors to induce any person or ward of the juvenile court under the age of 21 years to fail or refuse to conform to a lawful order of the juvenile court, or to do or to perform any act or to follow any course of conduct or to so live as would cause or manifestly tend to cause any such person to become or to remain a person within the provisions of any of the subdivisions of Section 700, is guilty of a misdemeanor * * *.'

Among the persons under 21 years of age enumerated in Section 700 as being within the jurisdiction of the Juvenile Court is any person who is leading, or from any cause is in danger of leading, an idle, dissolute, lewd or immoral life. Sec. 700, Welfare and Institutions Code, subd. (k).

The main purpose of Welfare and Institutions Code, Section 702, is to remove minors from immoral and evil influences which would incline them toward a state of delinquency. The purpose is accomplished by making any act or omission which would tend to cause a minor to become delinquent, a misdemeanor. People v. McDougal, 74 Cal.App. 666, 670, 241 P. 598; People v. Calkins, 48 Cal.App.2d 33, 36, 119 P.2d 142.

We do not deem it proper to give to the foregoing provisions of the statute the narrow and restricted construction for which appellant herein contends. The evident object and main purpose of the statute is preventive, and as said in People v. DeLeon, 35 Cal.App. 467, 470, 170 P. 173, 175: 'Its intent was to put a barrier across the threshold of those entrances to downward ways which are open before the feet of youth.' It is not required that the effect of the act complained of must have an absolutely certain and unmistakable tendency to cause the minor to lead an idle, dissolute, lewd or immoral life, and in determining whether the act in question would reasonably so affect the minor, the jury may apply the teachings of human experience. The statute is not to be judged in the light of the suggestions of appellant's counsel as to its possible application to suppositious cases wherein acts innocent in themselves might be held criminal according to the whim or prejudice of some judge or jury. It is not by such extreme or fanciful standards that the application of the statute is to be determined, but rather by...