Shorter v. State

• Decision Date: 29 September 1975
• Docket Number: No. 3--1272A94,3--1272A94
• Parties: Delbert L. SHORTER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 710

334 N.E.2d 710

166 Ind.App. 171

Delbert L. SHORTER, Appellant, v. STATE of Indiana, Appellee.

No. 3--1272A94.

Court of Appeals of Indiana, Third District.

Sept. 29, 1975.

Rehearing Denied Nov. 10, 1975.

Thomas L. Ryan, Deputy Public Defender, Allen County, Barrie C. Tremper, Public Defender, Fort Wayne, for appellant.

Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for appellee.

STATON, Presiding Judge.

Shorter was convicted of contributing to the delinquency of a minor under IC 1971, 35--14--1--1, Ind.Ann.Stat. § 10--812 (Burns 1956), sentenced to the Allen County Jail for six (6) months, and fined Five Hundred Dollars ($500.00). On appeal, Shorter challenges the sufficiency of the evidence which resulted in his conviction. We reverse.

The evidence most favorable to the State establishes that a thirteen-year-old juvenile girl had run away from her home without the permission of her parents. She had lived at the Inner-City Mission for a time and left. Later, when she met Shorter on the evening of April 12, 1972, she was living with a man and woman referred to as 'Hook' and Mary. The next morning, at 1:00 A.M., she left Hook and Mary's house with Shorter. He took her to Notel 6 in Allen County and checked into room eighty-five for the purpose of setting her up as a prostitute. She testified:

'He just kept on sayin' that he could get some good tricks to come up there. He said, 'No,' He said: 'I won't keep you there.' He said he just wanted to keep me there for that night. And, he told me not to get on the phone and he told me not to go back to Hook and Mary's and he said: 'Don't you call you mom and dad, don't call nobody.' He said that he was gonna have me go out and make him some money.'

Later the same morning at about 9:00 A.M., the police picked her up at the motel. Shorter was arrested the same morning in the motel parking lot.

Shorter was charged by affidavit with knowingly encouraging and causing a thirteen year old juvenile girl '. . . to be absent and remain away from her home and place of abode without just cause and without consent of her parent or guardian.' He contends on appeal: (1) that encouraging a juvenile to 'be absent and remain away from her home and place of abode' is not a crime, and (2) that there is no evidence that Shorter encouraged the juvenile involved to desert her home or place of abode.

The offense of contributing to the delinquency of a minor is defined by IC 1971, 35--14--1--1, Ind.Ann.Stat. § 10--812 (Burns 1956) as follows:

'It shall be unlawful for any person to cause or encourage any boy under the full age of eighteen (18) years, or any girl under the full age of eighteen (18) years, to commit any act which would cause such boy or girl to become delinquent child as defined by the laws of this state; . . .'

Prior to the 1975 Amendment of IC 1971, 31--5--7--4 (Burns Code Ed.), a delinquent child was defined as follows:

'The words 'delinquent child' shall include any boy under the full age of eighteen (18) years and any girl under the full age of eighteen (18) years who:

(1) Commits an act which, if committed by an adult, would be a crime not punishable by death or life imprisonment;

(2) Is incorrigible, ungovernable or habitually disobedient and beyond the control of his parent, guardian, or other custodian;

(3) Is habitually truant;

(4) Without just cause and without the consent of his parent, guardian, or other custodian, repeatedly deserts his home or place of abode;

(5) Engages in an occupation which is in violation of law;

(6) Associates with immoral or vicious persons;

(7) Frequents a place the existence of which is in violation of the law;

(8) Is found begging, receiving or gathering alms, whether actually begging or under the pretext of selling or offering anything for sale;

(9) Unaccompanied by parent, patronizes or visits any room wherein there is a bar where intoxicating liquors are sold;

(10) Wanders about the streets of any city, or in (on) or about any highway or any public place between the hours of eleven o'clock p.m. and five o'clock a.m. without being on any lawful business or occupation, except returning home or to his place of abode after attending a religious or educational meeting or social function sponsored by a church or school.

(11) Is found in or about railroad yards or tracks; or who jumps on or off trains; or who enters a car or engine without lawful authority;

(12) Is found in or about truck terminals, including freight docks, garages, other buildings incidental thereto or who enters a truck or trailer without lawful authority;

(13) Uses vile, obscene, vulgar or indecent language;

(14) Uses intoxicating liquor as a beverage, or who uses opium, cocaine, morphine or other similar drugs without the direction of a competent physician.

(15) Knowingly associates with thieves or other maliciously vicious persons;

(16) Is guilty of indecent or immoral conduct;

(17) Deports himself so as to wilfully injure or endanger the morals or health of himself or others;

(18) Deports himself so as to wilfully injure or endanger the person or property of himself or others.'

Although under IC 1971, 31--5--7--4(4), a juvenile may become delinquent by repeatedly deserting his home or place of abode, there is no specific provision making 'being absent and remaining away from home' an act of delinquency. The State would have this Court interpret IC 1971, 31--5--7--4(4) to include as delinquent acts, the acts of being absent and remaining away from home. When this Court or the Supreme Court of Indiana interprets a statute penalizing certain conduct, we may not '. . . add elements to an offense or make punishable that which was not intended to be so by the Legislature.' ¹ Utley v. State (1972), 258 Ind. 443, 445, 281 N.E.2d 888, 890. As the Supreme Court of Indiana stated in Kelley v. State (1954), 233 Ind. 294, 298, 119 N.E.2d 322, 324:

'It is a fundamental rule in the construction of statutes that penal statutes must be construed strictly, or, as is otherwise stated, strictly construed against the state. The rule of strict construction means that such statutes will not be enlarged by implication or intendment beyond the fair meaning of the language used, and will not be held to include offenses and persons other than those which are clearly described and provided for . . ..'

Pursuant to IC 1971, 1--1--4--1 (Burns Code Ed.), we will give the words used in the statute their plain and usual meaning. Dunbar v. State (1974), Ind.App., 319 N.E.2d 630; Fisher v. State (1973), Ind.App., 294 N.E.2d 632. The act of delinquency described in IC 1971, 31--5--7--4(4), supra, is the act of desertion. 'Desert' is defined in The Random House Dictionary of the English Language (unabridged ed. 1969) as 'to leave without intending to return, esp. in violation of a duty, promise, or the like; abandon; forsake. . . .' Webster's Third New International Dictionary (unabridged ed. 1970) defines 'desert' as 'to withdraw from or leave permanently. . . .' Certainly the acts of being absent and remaining away from home are relevant to a showing that the juvenile has deserted his home, but such acts are not synonymous with the act of desertion and alone do not constitute an act of delinquency.

The evidence supporting Shorter's conviction establishes that Shorter encouraged a juvenile's continued absence from her home by providing her with lodging for one night. Encouraging a juvenile to remain away from a home she has already deserted does not contribute to any defined act of delinquency under IC 1971, 31--5--7--4, supra. To so hold would be to criminalize conduct on the part of compassionate citizens who provide runaways with food and lodging and thereby facilitate a runaway's absence from home. This case is not analogous to Davidson v. State (1968), 249 Ind. 419, 233 N.E.2d 173, upholding a conviction of contributing to the continuing delinquency of a minor. In the instant case, the act of delinquency, the desertion, had already occurred.

The judgment of the trial court should be and the same hereby is reversed.

GARRARD, J., concurs with opinion.

HOFFMAN, J., dissents with opinion.

GARRARD, Judge (concurring).

While I agree with Judge Staton that the conviction should be reversed, I am unable to accept the assertion that encouraging a juvenile to remain away from a home already deserted may not contribute to any defined act of delinquency under our prior statute.

Furthermore, it appears that under the rationale of Davidson v. State (1968), 249 Ind. 419, 233 N.E.2d 173, one might be properly found guilty of contributing to delinquency by encouraging or causing a single repetition of the conduct proscribed by the juvenile statutes.

However, I agree that we may not expand the language of the statute by implication or intendment to criminalize conduct not within the fair meaning of the language employed by the legislature.

In Shorter's appeal the only statutory basis for upholding his conviction is the provision of IC 1971, 31--5--7--4(4) defining a delinquent as one who:

'Without just cause and without the consent of his parent, guardian or other custodian, repeatedly deserts his home or place of abode.'

On direct examination the girl in question admitted that she had 'run away'. However, there was simply no attempt made nor evidence offered to establish her intent in running away, whether she had ever done so before, or what her reasons for doing so were.

In the absence of any such evidence it could not be determined that Shorter either encouraged or caused her to commit an act which would cause her to become a delinquent child under the quoted paragraph of the statute.

I therefore concur in reversal.

HOFFMAN, Judge (dissenting).

I dissent from the disposition reached in the majority opinion.

The majority opinion herein holds that the allegation that Shorter caused a minor girl '. . . to be absent and remain away...