State v. Griffin

• Decision Date: 15 April 1952
• Citation: 93 Ohio App. 299,106 N.E.2d 668
• Parties: , 63 Ohio Law Abs. 122, 51 O.O. 47 STATE v. GRIFFIN.
• Court: Ohio Court of Appeals

Page 299

93 Ohio App. 299

106 N.E.2d 668, 63 Ohio Law Abs. 122, 51 O.O. 47

STATE v. GRIFFIN.

Court of Appeals of Ohio, Champaign County.

April 15, 1952.

On Motion to Certify June 10, 1952.

Richard P. Faulkner, Urbana, Prosecuting Atty., for plaintiff-appellee.

Harvey Crow, St. Paris, Atty., for defendant-appellant.

WISEMAN, Judge.

This is an appeal on questions of law from the judgment of the Juvenile Court of Champaign County. Defendant was charged with encouraging and contributing to the neglect or dependency of James Robert Dunlap, a minor two years of age. The jury returned a verdict of guilty on which the Court entered judgment and pronounced sentence.

Defendant-Appellant assigns eleven separate grounds of error. First, the defendant contends that the affidavit does not charge an offense. The essential parts of the affidavit are as follows:

'On or about the 1st day of July 1951, and since that time in July, August and September, 1951, in the County of Champaign aforesaid, one Harold Griffin, residing at Springfiled, Ohio did encourage and contribute toward the neglect or dependency of the following child, to-wit:

'James Robert Dunlap, age two years, in that he, the said Harold Griffin, encoraged and contributed to the lack of proper parental care due to the faults and habits of the mother of said child, namely, Martha Dunlap, and the neglect by the said mother of the care necessary for its health, morals and well-being; and encouraged and contributed toward conditions and environment such as to warrant the state, in the interests of said child in assuming its guardianship;

'contrary to the statute in such case made and provided and against the peace and dignity of The State of Ohio.'

The affidavit charged an offense under the provisions of Section 1639-45 G.C., which provides that whoever encourages or contributes toward the dependency or neglect of a child shall be fined etc. Section 13437-34 G.C., as amended effective August 23, 1945 in part provides: 'The provisions of law as to form and sufficiency, amendments, objections and exceptions to indictments and as to the service thereof shall apply to such affidavits and warrants issued thereon.' Section 13437-4 G.C.Provides:

'In charging an offense, each count shall contain, and shall be sufficient if it contains in substance, a statement that the accused has committed some public offense therein specified. Such statements may be made in ordinary and concise language without any technical averments or any allegations not essential to be proved. It may be in the words of the enactment describing the offense or declaring the matter charged to be a public offense, or in any words sufficient to give the accused notice of the offense of which he is charged.' (Emphasis ours.)

In our opinion these statutory provisions are applicable to this proceeding. It was sufficient to charge the offense in the language of the statute. Section 1639-3 G.C. defines 'neglected child' to be any child '2. Who lacks proper parental care by reason of the faults or habits of its parents, guardian or custodian.' (Emphasis ours.) The affidavit charged that the defendant encouraged and contributed 'to the lack of proper parental care due to the faults and habits of the mother of said child'. Section 1639-4 G.C. defines 'dependent child' to be any child: '3. Whose condition or environment is such as to warrant the state, in the interests of the child, in assuming its guardianship.' The affidavit charged that the defendant encouraged and contributed 'towad conditions and environment such as to warrant the state, in the interest of said child in assuming its guardianship.' In our opinion the affidavit was sufficient to give the accused notice of the offense of which he was charged.

In support of his contention that the affidavit failed to charge an offense by omitting to allege facts which constituted neglect or dependency and the failure to allege that said child was a neglected or dependent child, the appellant cites the following cases: Edmonds v. State, 30 Ohio App. 195, 164 N.E. 649; Peefer v. State, 42 Ohio App. 276, 182 N.E. 117; State v. Krauss, 81 Ohio App. 453, 80 N.E.2d 164, and State v. Zaras, 81 Ohio App. 152, 78 N.E.2d 74. The first three cases cited were decided prior to the amendment of Section 13427-34 G.C., which became effective August 23, 1945. The Peefer and Krauss cases are distinguishable from the instant case on other grounds. In the case of State v. Zaras, the affidavit did not charge an offense in the words of the statute, or allege facts which constituted an offense under the statute . In the instant case the affidavit sufficiently charged an offense in the words of the statute, which is permissible under Section 13437-34 G.C. State v. Yudick, 155 Ohio St. 269, 98 N.E.2d 415; City of Columbus v. Highsmith, 85 Ohio App. 149, 84 N.E.2d 303. If seasonably requested, the Prosecuting Attorney could have been required to furnish a bill of particulars. Section 13437-6 G.C.

It was not essential to expressly allege in the affidavit that the child was a 'neglected' or 'dependent' child. Fisher v. State, 84 Ohio St. 360, 95 N.E. 908; State v. Van Horn, 32 Ohio Law Abst. 406.

It is contended that there is no proof that the child was a neglected or dependent child and that, therefore, the defendant could not be guilty of encouraging or contributing toward the neglect or dependency of said child. The Prosecuting Attorney presented as evidence over the objection of the defendant the record of a separate proceeding in the same court in which the child was adjudged to be a neglected and dependent child. The claim is made that with the exception of the court record in the other proceeding which involved the same acts of misconduct, there is no proof to support the verdict and judgment. After the close of the State's case, the defendant moved for a directed verdict which was overruled, and then rested. Thus, the case went to the jury on the evidence presented by the State. The principle witness for the State was the mother of the child who testified that she and the defendant, who was not her husband, over a period of several months immediately prior to the institution of this proceeding, has engaged in illicit sexual relations which occurred in the presence of the child. It was incumbent upon the state to prove the child to be a neglected or dependent child and we are of the opinion there was sufficient comptent evidence to prove the child to be neglected or dependent within the meaning of the statute. The case at bar is distinguishable from State v. Hannawalt, 26 Ohio Law Abst. 641 where the complaint not only charged 'contributing to the delinquency' but, also, 'acting in a manner tending to contribute to the delinquency'.

It is not a prerequisite that the child be adjudicated as a neglected, dependent or delinquent child in a separate proceeding before a charge of contributing toward such neglect, dependency or delinquency of such child can be maintained. State v. Zaras, 81 Ohio App. 152, 155, 78 N.E.2d 74; Anss v. State, 16 Ohio App. 502, 504; State v. Van Horn, 32 Ohio Law Abst. 406, 408; Clements v. State, 3 Ohio Law Abst. 541. However, in this case it is contended that the admission of the court record in the separate proceeding constituted reversible error....