State v. Casson
| Citation | 223 Or. 421,354 P.2d 815 |
| Parties | STATE of Oregon, Respondent, v. Robert CASSON, Appellant. |
| Decision Date | 10 August 1960 |
| Court | Supreme Court of Oregon |
Philip A. Levin and Robert L. McKee, Portland, argued the cause for appellant. With them on the briefs were Pfeiffer & McKee, Portland.
Julian Herndon, Jr., Deputy Dist. Atty., Portland, argued the cause for respondent. With him on the brief was Charles E. Raymond, Dist. Atty., Portland.
Before McALLISTER, C. J., and ROSSMAN, WARNER, PERRY, SLOAN, O'CONNELL and GOODWIN, JJ.
The defendant appeals from a judgment of an indeterminate sentence upon the conviction of the crime of contributing to the delinquency of a minor.
Because the principal problems on this appeal arise out of the charging part of the indictment, it is set out in full:
'The said ROBERT R. CASSON, commencing in mid October, 1957 through December, 1957, a more exact description of the period of time being unknown to the Grand Jury in the County of Multnomah and State of Oregon, then and there being, did then and there wilfully, unlawfully and feloniously do and perform acts and follow a course of conduct which did manifestly then and there tend to cause one Jerry Robert Donahue to become a delinquent child, to-wit:
'(1) The said ROBERT R. CASSON did then and there furnish intoxicating liquor to the said Jerry Robert Donahue;
'(2) The said ROBERT R. CASSON did then and there manipulate the private parts of the said Jerry Robert Donahue;
'(3) The said ROBERT R. CASSON did then and there place his mouth upon the private parts of the said Jerry Robert Donahue;
'(4) The said ROBERT R. CASSON did then and there transport the said Jerry Robert Donahue to the residence and presence of one Sylvester Oliver Hodges, the said Robert R. Casson then and there well knowing the said Sylvester Oliver Hodges to be a promiscuous homesexual and to have a sexual preference for adolescent boys,
'the said Jerry Robert Donahue then and there being a child under the age of eighteen years, * * *.'
The first specification of the indictment is here significant only with reference to the indeterminate sentence, which, under ORS 167.050, deprived the defendant of his liberty for a term 'not exceeding the natural life of such person.'
The jury was instructed that it could convict the defendant if the state proved beyond a reasonable doubt that the defendant committed any one or more of the acts charged in the indictment. It thus becomes necessary to review the sentence as well as the other questions raised on this appeal.
The jury returned a general verdict of guilty. The trial judge, could not say, and neither can this court, which, if not all, of the specifications of the indictment were satisfactorily proven to the jury. Accordingly, after submitting to the jury the several specifications in the indictment, some of which describe acts which could have been brought within the enhanced penalty provisions of ORS 137.116 and others of which could not, 1 the court could not impose a sentence in excess of the maximum provided by ORS 167.210, the statute which denounces the principal offense of contributing to the delinquency of a minor. 2
The next two specifications in the indictment present no problem on this appeal.
The principal question presented in the trial court and in this court is the sufficiency of the fourth specification of the indictment. If this specification describes a crime under the statutes which in 1958 defined child delinquency, then the conviction must be affirmed. It it does not, then the conviction is fatally defective, and the cause must be returned to the grand jury for further consideration. State of Oregon v. Lawrence, 20 Or. 236, 25 P. 638.
The defendant bases his principal ground for reversal upon the claim that the fourth-quoted specification in the indictment irreparably damaged the defendant in the following particulars: First, it opened the door to a line of testimony which otherwise could not have been relevant, and second, it permitted the jury to find a verdict of guilty on proof of the doing of an act which, the defendant says, does not constitute a crime.
On the defendant's behalf, the record shows that the evidence opened up by the fourth count of the indictment was subjected to timely and continuing objection. It rehearsed at unedifying length the promiscuous and loathsome nature of Hodges' conduct in the past with other similarly afflicted persons, none of whom were before the court in any capacity except as witnesses to the behavior of the absent Hodges.
The applicable statutes at the time, since repealed, provided two definitions of 'delinquent child.' One was found in ORS 419.503, and the other, slightly broader, was found in ORS 419.502(1). It reads:
"Delinquent child' includes any child under the age of 18 years who violates any law of this state or any city or village ordinance, or who is incorrigible, or who is a persistent truant from school, or who associates with criminals or reputed criminals, or vicious or immoral persons, or who is growing up in idleness or crime, or who frequents, visits, or is found in any disorderly house, bawdy house or house of ill fame, or any house or place where fornication is enacted, or in any saloon, barroom or drinking shop or place, or any place where spirituous liquors, or wine, or intoxicating or malt liquors are sold at retail, exchanged or given away, or who patronizes, frequents, visits or is found in any gaming house, or in any place where any gaming device is or shall be operated.'
In the quoted section, it is said that a child is delinquent if he associates with vicious or immoral persons. The narrow question before this court is whether the act described in the words of the fourth specification in the indictment manifestly tends to cause the child to associate with vicious or immoral persons.
When the state elects to charge that a defendant contributed to the delinquency of a minor by the commission of separate and distinct acts laid under a videlicet, 'to-wit:', each of the acts must be of such a character, standing alone, that if proven to the jury it would justify a verdict of guilty of the charge.
The trial judge must initially determine whether or not the acts described in the indictment are of such character as to indicate of themselves a tendency to cause delinquency. State of Oregon v. Peebler et al., 200 Or. 321, 265 P.2d 1081.
After the evidence is in, it becomes the jury's duty to determine finally whether the acts were in fact committed, and, if so, whether the acts in fact had a manifest tendency to cause delinquency.
But before any evidence can be received on a charge or a specification of a charge in a multiple-charge indictment, the court must first decide that each of the charges states a crime. The State v. Hinckley, 4 Minn. 345, 4 Gilfillan 261, 271; 2 Bishop's New Criminal Procedure 881, § 1015(2).
The indictment did not allege that the defendant introduced the child, or acted as a go-between or an agent of assignation with a pederast, or forced the child to associate with one; it merely alleges that he brought the child into the presence of such a person.
The defendant contends that, where the described conduct admits of an innocent interpretation as well as of a criminal interpretation, the doubt must be resolved in favor of innocence. Where the two inferences equally may be drawn from the same words in the indictment, that is a correct statement of the law. People v. McDougal, 74 Cal.App. 666, 672, 241 P. 598, 600; People v. Roberts, 40 Cal.2d 483, 488, 254 P.2d 501, 503-504. Cf. State of Oregon v. Buck, 200 Or. 87, 103-104, 262 P.2d 495. But the state urges in this case that no innocent purpose can be read into the act of taking the child to the home of Hodges by the defendant, who knew of Hodges' propensities. Even if two inferences are possible, they are not equal. People v. McDougal, supra 74 Cal.App. at page 672, 241 P. at page 600. The question was one for the jury. People v. Roberts, supra 40 Cal.2d at page 488, 254 P.2d at pages 503-504.
The legislature intended to denounce the type of conduct involved in this case. It is competent for the legislature to penalize adults who cause children to associate with immoral persons, and an indictment which charges that an adult did an act which has a manifest tendency to cause a child to associate with such a person alleges an act which a jury could find, if proven, would have a manifest tendency to cause the child to become delinquent within the statutory definition. The present indictment may be imperfect, but the required allegation is inherent in the plain meaning of the words used.
In giving effect to the legislative intent to protect children against predatory adults, there is wisdom in the language of this court when it said in State v. Stone, 111 Or. 227, 235, 226 P. 430, 433:
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...27 Am.Jur. Indictments and Informations § 54, at 621; 42 C.J.S. Indictments and Informations § 130, at 1022; and see State v. Casson, 223 Or. 421, 354 P.2d 815 (1960) (contributing We believe this law to be applicable to this information as supplemented by the bill of particulars and that w......
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...which is such that it manifestly tends toward causing the child to become delinquent is all that is required. We held in State v. Casson, 223 Or. 421, 354 P.2d 815, that where the state elects to charge a defendant with contributing to the delinquency of a minor by 'separate and distinct ac......
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