State v. Austin

• Decision Date: 03 May 1977
• Docket Number: No. 13684,13684
• Citation: 160 W.Va. 337,234 S.E.2d 657
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Marvin Reay AUSTIN.

Page 657

234 S.E.2d 657

160 W.Va. 337

STATE of West Virginia v. Marvin Reay AUSTIN.

No. 13684.

Supreme Court of Appeals of West Virginia.

May 3, 1977.

Syllabus by the Court

1. W.Va.Code, 49-7-7, relating to the crime of contributing to the delinquency of a minor, must be read in pari materia with W.Va.Code, 49-1-4, defining a delinquent child, in order to determine the elements of the crime of contributing to the delinquency of a minor.

2. The crime of contributing to the delinquency of a minor contains, as a necessary element, proof that the defendant committed the act knowingly.

3. Under the provisions of W.Va.Code, 49-1-4(1), a law or municipal ordinance, which carries no criminal penalty or whose only criminal penalty is a nominal fine, cannot be utilized as a foundation for a contributing charge under W.Va.Code, 49-7-7.

4. It is not a criminal offense in this State for a person to marry under the statutory age of consent without parental permission.

5. A male, who is over the statutory age of consent and who marries a female under the statutory age of consent, without the permission of her parents, where there is no statute making such act of marriage a crime, does not commit the crime of contributing to the delinquency of a minor.

Ronald R. Brown, Brown & Williams, Kingwood, Clark B. Frame, Wilson, Frame & Rowe, Morgantown, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., Richard E. Hardison, Deputy Atty. Gen., Charleston, for defendant in error.

MILLER, Justice:

This appeal is from the Circuit Court of Preston County and involves a conviction of contributing to the delinquency of a minor. The defendant was found guilty on the third count of an indictment, which count charged him with marrying outside this State a female child of the age of 15, without her parents' consent and using an altered birth certificate. The trial court dismissed the second count of the indictment and the jury returned a not guilty verdict on the first and fourth counts. The entire indictment centered around acts arising out of the defendant's marriage.

The defendant was 22 years of age at the time of the marriage, which took place in Oakland, Maryland, on November 6, 1974. Both the defendant and his wife were residents of this State prior to their marriage, and after their marriage returned to West Virginia, where they continued to reside. Prior to their marriage, they had dated for approximately two years.

The principal error assigned by the defendant is that the marrying of a 15-year-old girl without her parents' consent does not constitute, as a matter of law, an act of contributing to the delinquency of a minor. We agree.

The crime of contributing to the delinquency of a minor (herein contributing) is of statutory origin and was unknown at common law. ¹ In this State, as in most, the statute is broadly phrased and must be read in pari materia with the statute defining a delinquent child to ascertain the elements of the crime. ² State v. Flinn, W.Va., 208 S.E.2d 538, 548 (1974).

Ordinarily, the crime of contributing is viewed with the perspective of two considerations: (1) the underlying act of delinquency of the juvenile, and (2) the acts of the defendant which are alleged to have caused or encouraged the delinquency. In this State, however, this analysis is somewhat obscured in that it is not necessary, in sustaining a charge of contributing, to have established that the conduct of the defendant actually resulted in the delinquency of the juvenile. ³ State v. Harris, 105 W.Va. 165, 169, 141 S.E. 637, 639 (1928); see also Annot., 18 A.L.R.3d 824 (1968).

In State v. Flinn, supra, this Court had before it a challenge to the statute on the ground that it was unconstitutionally vague. The Court concluded that the statute, when read in pari materia with the definition of a delinquent child found in W.Va.Code, 49-1-4, was constitutional except as to subsections (7) and (9) of the Act defining a delinquent child. Subsections (7) and (9) were held to be unconstitutional under the Due Process Clause of Article III, Section 10 of the Constitution of West Virginia and the 14th Amendment of the United States Constitution.

Flinn formulated a "causation test" whereby the acts which are alleged to constitute contributing to the delinquency of a minor must be of such a nature that ". . . delinquency must be a reasonably certain result of the act complained of and reasonably sure to befall a certain child in a reasonable time." 208 S.E.2d at 552-53.

In State v. Westfall, 126 W.Va. 476, 29 S.E.2d 6 (1944), it was held that a contributing charge must be proven beyond all reasonable doubt and that it is necessary to prove that the defendant committed the acts knowingly. Westfall did not cite State v. Harris, supra, which held that criminal intent was not a necessary element of the crime of contributing.

The United States Supreme Court, basing its decision upon the Due Process Clause of the 14th Amendment, reached the same result as Westfall in overturning a State contributing conviction. Vachon v. New Hampshire, 414 U.S. 478, 94 S.Ct. 664, 38 L.Ed.2d 666 (1974). We conclude that the rule set forth in Westfall is a correct statement of the law and that the crime of contributing to the delinquency of a minor requires proof that the defendant knowingly committed the acts. ⁴ See also Annot., 31 A.L.R.3d 848 (1970).

There are two provisions in the statute defining a delinquent child which could reasonably be applicable to the contributing charge under consideration: "(1) Violates a law or municipal ordinance;" and "(5) Without just cause and without the consent of his parent, guardian, or other custodian, repeatedly deserts his home or place of abode."

While under Harris and the causation test of Flinn an actual violation of a law or ordinance by the juvenile is not necessary to establish the crime of contributing, it is necessary to determine the type of law or municipal ordinance involved which will support the charge of contributing. Stated another way, can contributing rest upon a law or municipal ordinance which carries no criminal penalty or where the penalty is a nominal fine?

Few cases have been found which discuss this problem. In State v. Cutshaw, 7 Ariz.App. 210, 437 P.2d 962 (1968), the court considered whether a contributing conviction could stand which rested upon the inducing of a minor to violate the city's loitering ordinance. It concluded the conviction was void as a matter of law. The delinquency statute defined a delinquent as one who "violates a law of this state or an ordinance of a county, city or town defining a crime." 437 P.2d at 971. The court reasoned that not all criminal laws could be used as an underlying basis for a contributing charge, but only those that were designed to protect the morals, health or welfare of the child.

Cutshaw cited Stone v. State, 220 Ind. 165, 41 N.E.2d 609 (1942), in which that court refused to find the giving of a cigarette to a minor, although an act in violation of a criminal statute, a sufficient violation to form the basis for a contributing charge. Indiana's juvenile delinquency statute at that time was similar to ours in that it did not specify whether the law or ordinance must be criminal. ⁵

We view the rationale in Cutshaw as illogical where it limits contributing charges to those underlying offenses which the involved juvenile is encouraged to commit that only can be categorized as protecting his health, welfare or morals. Most criminal laws are not designed to protect the health, welfare or morals of the person that breaks them, but are enacted to protect the rights and properties of others. The reason they may affect the health or welfare of the person who breaks them is by virtue of the punishment inflicted. The purpose of the contributing crime is to insulate the juvenile from those who would encourage him to break the law, not just those laws that are enacted for his protection, but those which protect the rights of others.

We agree that there is a need for some selectivity in determining the type of law or ordinance which may support a contributing charge. As Stone illustrates, there are certain laws which, if violated, are so inconsequential that they ought not form a basis for such a charge. We establish as a beginning point that a law or ordinance which carries no criminal penalty cannot be utilized as a foundation for a contributing charge.

If the legislative body which has enacted such law or ordinance has not attached a criminal penalty to it, we must conclude that its violation was not deemed to be an antisocial act. Consequently, it cannot be implied that its violation was intended collaterally to form the basis of a criminal charge for contributing. Much the same reasoning applies to those crimes which carry only a nominal fine. Again, it is the inconsequentialness of the punishment that compels the conclusion that society did not intend serious criminal punishment to flow from their violation.

Tested by the foregoing principles, the contributing conviction which we here consider cannot stand. The charge that the defendant procured the marriage by use of an altered minor female's birth certificate is insufficient as a matter of law. The essence of a contributing charge is that the defendant's acts caused the minor to tend to commit an act of delinquency. No evidence was ever introduced to connect the defendant to having caused the minor to alter her birth certificate. Indeed, there was no evidence that there was an alteration of the certificate by anyone. ⁶

The charge of marrying a minor under the age of consent, without her parents' consent, brings several statutes under examination. Two sections in our marriage law deal with the age for marriage and the necessity of parental consent where nonage is involved. W.Va.Code, 48-1-1, -8. Both statutes contain the mandatory word "shall", but neither provides a criminal...