State v. Doud

• Decision Date: 12 December 1950
• Citation: 190 Or. 218,225 P.2d 400
• Parties: STATE v. DOUD.
• Court: Oregon Supreme Court

Page 400

225 P.2d 400

190 Or. 218

STATE v. DOUD.

Supreme Court of Oregon.

Dec. 12, 1950.

Edward E. Grant, of Enterprise, argued the cause for appellant. With him on the brief were Dixon & Burleigh, of La Grande.

M. Keith Wilson, Dist. Atty., of Joseph, argued the cause and filed a brief for respondent.

Before LUSK, C. J., and BRAND, ROSSMAN, HAY and WARNER, JJ.

ROSSMAN, Justice.

This is an appeal by the defendant from a judgment of the Circuit Court, based upon a verdict, which adjudged him guilty of the crime of having contributed to the delinquency of a minor and which ordered his imprisonment.

According to the State, the alleged crime was committed February 26, 1950, and its victim was a girl, six years and eight months of age at that time. For obvious reasons we shall not disclose the girl's name.

The defendant presents assignments of error which challenge

1. 'the failure of the Court to sustain the motion of the defendant to set aside the indictment.'

2. 'the failure of the Court to sustain the objection to the offering of testimony against the defendant upon the ground and for the reason that the indictment does not state facts sufficient to constitute a crime.'

3. a ruling which permitted the purported victim of the crime to testify although 'her preliminary examination showed that she did not have sufficient understanding to be capable of receiving just impressions of the facts respecting which she was examined or of the nature of an oath.'

4. a ruling which permitted the mother of the purported victim to 'take part in her preliminary examination.'

5. the admissibility of all the testimony given by the purported victim because she testified without having been sworn.

6. a ruling which sustained objections to a question put to a witness called by the defendant to testify that the purported victim displayed a tendency 'to tell imaginary stories and to repeat what she has heard others say as her own experiences and statements.' 7. the refusal to give the instruction quoted in this assignment of error. [We will quote it later.]

8. the refusal to give the instruction quoted in this assignment of error. [We will quote it later.]

9. the refusal of the Court to instruct the jury to find the defendant not guilty.

We shall now consider the first assignment of error. The indictment which underlies the challenged judgment was returned March 17, 1950, by the grand jury for Wallowa County. A motion filed by the defendant sought an order setting aside the indictment upon the contention that although the grant jury which rendered it was impaneled during the May, 1949, term of the court, 'no order was made in the Journal of said Court stating the reasons and continuing said Grand Jury to act during the November, 1949 term of said Court.' No affidavit or other document was filed to establish the facts mentioned in the motion.

Section 93-260, O.C.L.A., provides that the terms of the Circuit Court for Wallowa County shall begin 'on the second Monday in May, and on the second Monday in November'. Section 26-412, O.C.L.A., states:

'When the business of the grand jury is completed they must be discharged by the court; but the judge may in his discretion by an order made either in open court or at chambers anywhere in his district, and entered in the journal, stating the reasons, continue the grand jury, once drawn, in session during as many terms of the court as the judge may deem advisable.'

The order which overruled the motion reads as follows:

'1. That an oral order was made and entered by this Court on August 30, 1949, in open court and in the presence of said Grand Jury, that said Grand Jury would be continued as such for the November, 1949 term;

'2. That through inadvertence said order was not entered of record at that time, but that on December 6, 1949, the Court entered a nunc pro tunc order continuing said Grand Jury and ordered that the Journal of said Court so show.'

The order entered December 6 follows:

'In the Matter of the Grand Jury of

Wallowa County, Oregon} Order Continuing Grand Jury

'On the 30th day of August, 1949, the Grand Jury returned into Court with one true bill, and presented a written report to the Court; and it then appearing to the Court that the Grand Jury and been in session only a few times and had had very little work, and that there was no reason for empanelling another grand jury, either at that time or for the November term, the Court announced to the Grand Jury, and orally ordered, that they would be continued as such, and would be excused until later notified to attend,

'And It Further Appearing to the Court that this order was actually made in open Court on the 30th day of August, 1949, but through inadvertence was not entered of record; Now, Therefore,

'It is Hereby Ordered that this order be entered in the Journal now, as of that date.'

The nunc pro tunc order entered December 6, 1949, was a proper device for entering in the journal the order made August 30, 1949: Cranston v. Stanfield, 123 Or. 314, 261 P. 52; 60 C.J.S., Motions and Orders, § 57, p. 54; and 37 Am.Jur., Motions, Rules and Orders, p. 513, § 30. The defendant does not challenge the verity of any fact mentioned in the order of December 6, 1949, nor does he controvert the right of the court to have made it.

We dismiss this assignment of error as lacking in merit.

We come now to the second assignment of error. In support of it, the defendant argues:

'The crime charged is a statutory one, unknown at common law, which necessarily requires a criminal intent and must be charged to have been done wilfully. Furthermore, the act charged is such that, although it would have constituted an assault and battery, it could not have amounted to the crime of contributing to the delinquency of a minor.'

The defendant concedes that 'the statute under which the indictment was brought Section 23-1034, O.C.L.A. does not by its terms use the words 'wilfully' or 'intentionally'.'

Section 23-1034, O.C.L.A., says: '* * * any person who shall do any act which manifestly tends to cause any child to become a delinquent child, shall be guilty of a crime * * *.'

It was held in State v. Dunn, 53 Or. 304, 99 P. 278, 280, 100 P. 258, that 'It is not essential to a conviction either to charge or to prove that the minor has become delinquent.'

The primary purpose of statutes upon the subject of child delinquency is not to punish those who, through wrongful conduct, incline children toward delinquency, but to prevent the type of conduct condemned by the act which, if pursued, would be injurious to children and lead them upon a downward course. The welfare of the State demands that youth ripen into wholesome, useful citizenship.

We agree with the defendant that the crime denounced by § 23-1034, O.C.L.A., requires a willful act upon the part of the accused, but when the law employs the term 'willful' in connection with such crimes it means nothing more than that the accused must have acted wittingly; that is, that there was a union or concert of action between his intent and his act. It does not, however, require an intention upon his part to violate a law or injure another. A positive willful intent to violate § 23-1034, O.C.L.A., is not an essential ingredient of the offense. It is sufficient if the act which the accused performed was willfully done.

The act specified in the indictment returned against the defendant is similar to the one described in the indictment mentioned in State v. Stone, 111 Or. 227, 226 P. 430. The two indictments are substantially alike except for the fact that in the present one the description of the alleged unlawful act is more detailed and the indictment employs the term 'unlawfully and feloniously,' whereas the one in the Stone case used the phrase 'wrongfully, unlawfully and wilfully.'

In State v. Douglas, 53 Kan. 669, 37 P. 172, the court said: '* * * It is urged that the second count is fatally defective, because it did not state that the act was done 'maliciously or willfully,' or that like words were used. The information charged the assault was made 'unlawfully and feloniously,' and the defendant 'feloniously struck' S. with a knife, being a dangerous weapon. The words 'maliciously' or 'willfully' are not found in section 42, and the count is not open to the objection made. 'Feloniously,' in a legal sense, means 'done with intent to commit a crime.''

State v. Smith, 119 Tenn. 521, 105 S.W. 68, 70, says: "Feloniously' is defined in the Century Dictionary as follows: 'With a deliberate intent to commit a wrongful act, the act being in law such as constitutes a crime of the class permed felonies.' In Webster's International Dictionary one meaning attached to the word is: 'In a legal sense, done with the intent to commit a crime."

From 36 C.J.S., Feloniously, p. 633, we quote: 'Feloniously. A term which has been defined generally as meaning having the quality of a felony; proceeding from an evil heart or purpose, done with a deliberate intention of committing a crime; wickedly and against the admonition of the law, that is, wickedly and unlawfully; with criminal intent; wrongfully and with the intent of committing a felony or crime. Used in connection with an unlawful and forbidden act, and term signifies that the act was done knowingly and purposely, not accidentally or by mistake. The term imports intent, and a willful act; and has been held to include 'maliciously' and 'unlawfully."

The indictment in State v. Du Bois, 175 Or. 341, 153 P.2d 521, 522, in charging the same crime as the instant one, employed the phrase, 'unlawfully and feloniously'. It did not include the word 'willfully.' That choice of phraseology provoked no comment by this court. The indictment in State v. Dunn, supra, in describing the purported criminal act, used the words 'willfully and unlawfully.'

Although in earlier times criminal law pleading attached so much importance to the use of...