People v. Owens

• Decision Date: 26 September 1968
• Docket Number: Docket No. 1755,No. 1,1
• Citation: 13 Mich.App. 469,164 N.W.2d 712
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James OWENS, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 712

164 N.W.2d 712

13 Mich.App. 469

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James OWENS, Defendant-Appellant.

Docket No. 1755.

Court of Appeals of Michigan, Division No. 1.

Sept. 26, 1968.

Released for Publication Feb. 20, 1969.

Myzell Sowell, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, William L. Cahalan, Pros. Atty., Samuel J. Torina, Chief Appellate Lawyer, Richard J. Padzieski, Asst. Pros. Atty., Wayne County, Detroit, for plaintiff-appellee.

Before FITZGERALD, P.J., and McGREGOR and LEVIN, JJ.

FITZGERALD, Presiding Judge.

Defendant-appellant was convicted in the Recorder's Court of the City of Detroit on a charge of contributing to the delinquency of a minor under C.J.1948, § 750.145 (Stat.Ann.1962 Rev. § 28.340), and appeals his conviction by questioning the application of that law to the following facts:

On December 5, 1965, defendant came into contact with Miss Diane Koskela who informed defendant that she was 18 years of age, that she was tired of living at home with her parents, and that she wished to move to Detroit and have a musical composition which she had written heard by the Motown Recording Company. Miss Koskela testified at the trial that defendant said if she came to Detroit, he would find her a place to stay. Two days later, after reaching Detroit from her home in Clarkston, Miss Koskela telephoned defendant for assistance and he responded by picking her up at a bus stop and by renting a motel room in Detroit for Miss Koskela, whereupon she immediately moved into residence. No impropriety of activity was alleged to have occurred during defendant's frequent visits to the motel.

Miss Koskela was picked up at the Motown recording studio on December 11, 1965, by her father, who signed a warrant charging defendant with contributing to the delinquency and neglect of a minor child. It was revealed at the trial that Miss Koskela was actually 16 years of age.

Defendant was convicted and sentenced on January 12, 1966, to a term of 60 days in the Detroit House of Correction. A motion for new trial was denied on February 4, 1966, and defendant filed and was granted an order staying execution of the sentence on $1,500 bail, pending the outcome of his appeal to this Court.

We are asked to construe the language of C.L.1948, § 750.145 (Stat.Ann.1962 Rev. § 28.340), which follows:

'Any person who shall by any act, or by any word, encourage, contribute toward, cause or tend to cause any minor child under the age of 17 years to become neglected or delinquent so as to come or tend to come under the judisdiction of the junvenile division of the probate court, as defined in section 2 of chapter 12a of Act No. 288 of the Public Acts of 1939, as added by Act No. 54 of the Public Acts of the First Extra Session of 1944, and any amendments thereto, whether or not such child shall in fact be adjudicated a ward of the probate court, shall be guilty of a misdemeanor.'

Defendant presents us with three questions concerning an interpretation of this statute:

1. Is the statute so vague and indefinite as not to sufficiently apprise defendant of the standard of conduct expected of him and the nature of the charges against him?

2. Was the statute intended to cover this kind of situation?

3. Must the minor child be first adjudged a delinquent before the court may determine guilt in this kind of situation?

In support of the first issue, alleging that the statute is vague and indefinite, defendant would have us look to note 11 following Stat.Ann.1962 Rev. § 28.340, where it is stated that:

'This section, as amended in 1939, is ineffective, since all statutes in which 'neglect' or 'delinquency' of minor children is defined have been repealed. Op.Atty.Gen. Dec. 6, 1944, No. 0--2917.'

The people cite the case of Dearborn Township Clerk v. Jones (1953), 335 Mich 658, 57 N.W.2d 40, to this Court for the proposition that a penal statute (such as C.L.1948, § 750.145) and a juvenile jurisdiction statute referred to in that statute (such as § 2 of chapter 12a of P.A.1939, No. 288 as added by P.A.1944 (1st Ex.Sess.), No. 54), must be construed together, as one statute, as being In pari materia on the same general subject matter in order to reflect the intent of the legislature. People v. Gould (1926), 237 Mich. 156, 211 N.W. 346.

Thus, it appears that the history of C.L.1948, § 750.145 (Stat.Ann.1962 Rev. § 28.340), adds P.A.1945, No. 85, to any consideration of the statute. The 1939 statute was vague and indefinite in that it required 'neglect' and 'delinquency' to be defined by the statutes of the state. The 1944 opinion of the attorney general is based on this 1939 language. However, the vagueness was removed by P.A.1945, No. 85, which changed the language of C.L.1948, § 750.145 (Stat.Ann.1962 Rev. § 28.340), to its present form and refers one to the juvenile jurisdiction statute (P.A.1939, No. 288, § 2 of chapter 12a as added by P.A.1944 (1st Ex.Sess.), No. 54 and any amendments thereto) which must be considered In pari materia with C.L.1948, § 750.145 (Stat.Ann.1962 Rev. § 28.340). The relevant section of C.L.1948, § 712A.2, as amended by P.A.1965, No. 182 (Stat.Ann.1968 Cum.Supp. § 27.3178 (598.2)), reads as follows:

'Except as provided herein, the juvenile division of the probate court shall have:

'a) Exclusive original jurisdiction superior to and regardless of the jurisdiction of any other court in proceedings concerning any child under 17 year of age found within the county.

'2) who has deserted his home without sufficient cause or who is repeatedly disobedient to the reasonable and lawful commands of his parents, guardian or other custodian.'

It is the intent of the legislature that these sections, including the above language, of C.L.1948, § 712A.2 as amended (Stat.Ann.1968 Cum.Supp. § 27.3178 (598.2)) are to define the situations under which the probate court may take jurisdiction of children under the age of 17 years. When read together with C.L.1948, § 750.145 (Stat.Ann.1962 Rev. § 28.340), it is apparent that the purpose of the legislature in retaining this statute is to prohibit other people from contributing to the child's coming within the application of C.L.1948, § 712A.2, as amended by P.A.1965, No. 182 (Stat.Ann.1968 Cum.Supp. § 27.3178 (598.2)).

We do not find that this section is so vague or indefinite as to deny defendant the constitutional right to be informed of the standard of conduct required of him and to be apprised of the charges against him. Defendant has relied solely on the language of note 11, and the opinion of the attorney general mentioned therein, without noting that several amendments and revisions of the law have occurred since the issuance of that opinion to correct the problems found in the 1939 statute, and to remove the objection of vagueness.

Defendant's second contention is that C.L.1948, § 750.145 (Stat.Ann.1962 Rev. § 28.340), was not intended to cover a situation such as this because defendant was acting as a 'good Samaritan' in providing Miss Koskela with lodging when she was a runaway girl exposed to the 'unsavory elements in the community' and that the statute is not intended to punish 'good Samaritans'. While the latter may be true, we fail to discover any evidence from the record that the defendant acted as a 'good Samaritan' and in effect this allegation is made first on appeal to this Court. The girl was encouraged by defendant's offer of assistance to Leave her home in Clarkston and take up lodging in Detroit in a motel room paid for by defendant. These encouragements would appear very attractive to a girl 16 years of age, and are exactly the type of activities which C.L.1948, §§ 712A.2 and 750.145 are intended to prohibit. The generosity of defendant in providing a home for runaway minor girls cannot be said to be an act of good Samaritanism when he has abetted the girl's departure from home by promises of assistance.

Defendant's third allegation to this Court is that he could not have been properly convicted of the charge without the trial court first adjudicating that Miss Koskela was a delinquent child. We are furnished with a citation to 3 Gillespie, Michigan Criminal Law and Procedure 2d ed.), §§ 1197, 1198, wherein the author sets forth suggested forms for the complaint and for the instructions to the jury in a case of contributing to the delinquency and neglect of a minor, the forms suggesting the inclusion of language stating that the minor child had been first adjudged to be a delinquent child before the complaint was issued. It must be emphasized that these forms are merely illustrative and are not absolutely binding upon an appellate or trial court as reflective of the law on the issue.

We direct defendant to 1 Gillespie, Michigan Criminal Law and Procedure (2d ed.), § 184, and the case of People v. Dowd (1880), 44 Mich. 488, 7 N.W. 71, wherein the Court denied Dowd permission to object to the complaint and warrant under which he was arrested when he was called on to plead to an information following his examination. Here, defendant waits even longer and first raises the question about the complaint on appeal, and therefore he cannot be heard. See cases cited at 1 Callaghan's Michigan Digest, Appeal and Error, §§ 285, 286. We also direct defendant to 2 Gillespie, Michigan Criminal Law and Procedure (2d ed.), § 806:

'Objections not raised during the trial and not passed upon by the trial court, will not be considered on appeal. A claim upon appeal made for the first time in the appellate court, which was not called to the attention of the court below, cannot be considered.'

This Court has accepted the above language of the Michigan Supreme Court in the case of People v. Willis (1965), 1 Mich.App. 428, 136 N.W.2d 723, without qualification. However, in order to dispose fully of defendant's allegation that he could not be convicted without Miss Koskela...