State v. Peebler

• Decision Date: 27 January 1954
• Citation: 200 Or. 321,265 P.2d 1081
• Parties: STATE v. PEEBLER et al.
• Court: Oregon Supreme Court

Page 1081

265 P.2d 1081

200 Or. 321

STATE v. PEEBLER et al.

Supreme Court of Oregon, En Banc.

Argued Jan. 13, 1954.

Decided Jan. 27, 1954.

O. H. Bengtson, Medford, and Leo Levenson, Portland, argued the cause for appellants. With them on the brief was Irving C. Allen, Medford.

Walter D. Nunley, Dist. Atty. for Jackson County, Medford, argued the cause and filed a brief for respondent.

BRAND, Justice.

The defendants were convicted of the crime of contributing to the delinquency of minor children. The charging part of the indictment reads as follows:

'The said Rosie L. Peebler and Arthur Hanson also known as Arthur E. Hansen on the 12th day of April, A.D. 1952, in the said County of Jackson and State of Oregon, then and there being, and then and there acting together, and the following: Patricia Ellen Peebler, Diane Peebler, Larry Peebler and Joanne Peebler, then and there being unmarried children all under the age of 12 years, and the said Rosie L. Peebler and Arthur Hanson did then and there unlawfully and feloniously do an act, to-wit: did then and there sleep in the same bed in the presence of said minors, the said Rosie L. Peebler and Arthur Hanson not then and there being married, which said act did manifestly then and there tend to cause the said Patricia Ellen Peebler, Diane Peebler, Larry Peebler and Joanne Peebler to become delinquent children, contrary to the statutes in such cases made and provided, and against the peace and dignity of the State of Oregon.'

The indictment was drawn under the provisions of that part of O.C.L.A. § 23-1034, ORS § 167.210, which reads as follows:

'* * * 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 and, upon trial and conviction thereof, shall be punished * * *.'

For an understanding of this law we must look to the statute which defines child delinquency. It reads as follows:

"Child delinquency' within the meaning of this act shall be defined as follows: Persons of either sex under the age of eighteen years who violate any law of the state, or any city or village ordinance; or persistently refuse to obey family discipline; or are persistently truant from school; or associate with criminals or reputed criminals; or are growing up in idleness and crime; or are found in any disorderly house, bawdy house, or house of ill fame; or are guilty of immoral conduct; or visit, patronize, or are found in any gaming house or in any place where any gaming device is or shall be operated, are hereby classed as delinquent children * * *.' O.C.L.A. § 93-603, ORS § 419.503.

The defendants contend that the provision of statute under which the indictment was brought is unconstitutional. By reason of our conclusion as to the sufficiency of the indictment, we find it unnecessary to consider the attack upon the constitutionality of the statute except to state that prosecutions under O.C.L.A. § 23-1034 have been before this court many times. State v. Eisen, 53 Or. 297, 99 P. 282, 100 P. 257; State v. Dunn, 53 Or. 304, 99 P. 278, 100 P. 258; State v. Gates, 98 Or. 110, 193 P. 197; State v. Stone, 111 Or. 227, 226 P. 430; State v. Moore, 194 Or. 232, 241 P.2d 455; State v. Harvey, 117 Or. 466, 242 P. 440; State v. Du Bois, 175 Or. 341, 153 P.2d 521; State v. Nagel, 185 Or. 486, 202 P.2d 640; State v. Doud, 190 Or. 218, 225 P.2d 400. In the last four cases above cited, the convictions were affirmed. In no case has this court expressed doubt as to the constitutionality of the statute.

The defendants' principal contention is that the indictment fails to allege facts sufficient to constitute the crime of contributing to the delinquency of a minor and that the court erred in failing to dismiss the case. No demurrer was presented to the court prior to the plea of not guilty. This court looks with disfavor upon challenges to the sufficiency of an indictment made after trial, and in a doubtful case we may give a more liberal construction to an indictment which has not been timely tested by demurrer. We recognize, however, that the sufficiency of the indictment may be challenged at a later stage of the proceedings, and we deem it our duty to consider the issue which is presented in this case.

Indictments brought in cases under the portion of the statute which is involved in this case must allege the specific act or acts relied upon as manifestly tending to cause delinquency, and must further allege that the specific acts charged did manifestly tend to cause delinquency. State v. Moore and State v. Stone, both supra.

The requirement that the tendency to delinquency must be 'manifest' in the acts charged implies that those acts must be of such a character as to indicate of themselves a tendency to cause delinquency.

In People v. Lamanuzzi, 77 Cal.App. 301, 246 P. 557, 558, the information charged the defendant with furnishing wine to three minors. The court said:

'* * * Where the gravamen of the offense under the section mentioned is the tendency of an act or omission, it is, according to the general rule applicable to criminal pleadings, essential to a complete description of the crime that it be alleged that the act or omission charged tended to have the effect designed to be prevented.'

There was no allegation that the alleged acts tended to encourage the minors to become persons within the provisions of the Juvenile Court Act, and the information was held bad.

In People v. Bergotini, 172 Cal. 717, 158 P. 168, it was charged that the defendant contributed to the dependency of certain children in that he induced the mother of the children to live in immoral relations with him. There was no allegation that the immoral acts were done in the presence of the children or had any direct effect upon their morals....