State v. Zitzelsberger
| Decision Date | 15 October 1946 |
| Docket Number | 9861. |
| Citation | 39 S.E.2d 835,129 W.Va. 229 |
| Parties | STATE v. ZITZELSBERGER. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
1. The statutory offense of contributing to the delinquency of a child being described in the statute in general terms, an indictment charging that offense must amplify the statutory description by alleging the specific act or conduct constituting the crime and such allegation must be proved beyond all reasonable doubt.
2. A verdict of guilty on an indictment charging that defendant contributed to the delinquency of a child by enticing and encouraging her to absent herself from home without reason or cause and without the consent of her legal custodian; by enticing and encouraging her to stay in defendant's home and by enticing and encouraging her to knowingly associate with immoral persons, is not sustained by proof that on one occasion she was found in defendant's place of business, wherein beer, soft drinks, candy and similar merchandise were dispensed and sold.
B T. Clayton, of Winfield, for plaintiff in error.
No appearance by the State.
August Zitzelsberger was found guilty by a jury in the Circuit Court of Putnam County of a misdemeanor and was sentenced to confinement in the jail of that county for sixty days and to pay a fine of $100 and costs. The case comes here by writ of error.
Defendant was tried on an indictment charging him with unlawfully contributing to the delinquency of a female child under the age of 18 years, by doing acts tending to encourage and cause her delinquency. The general charge is amplified by allegations of defendant's specific conduct as follows (a) That defendant enticed and encouraged the child to absent herself from the home of her grandmother and legal custodian without reason or cause and without the consent of her grandmother; (b) that the defendant enticed and encouraged the child to stay in his home; and (c) that he enticed and encouraged the child to knowingly associate with immoral persons.
Defendant was the owner and operator of a place of business in the Town of Bancroft wherein he sold, in the same room, nonintoxicating beer under a State license, as well as soft drinks, candy and similar merchandise. Defendant also maintained pool tables and a 'pinball machine' in the rear of that room.
On March 17, 1945, the Sheriff of Putnam County, a member of the Department of Public Safety, and a deputy sheriff of said county entered the defendant's place of business and there found the girl named in the indictment, who, at the time, was standing near the pinball machine watching the play. Defendant had no knowledge that the girl was in his place of business.
At the time of the officers' visit and while the gril was present, beer was being sold to and drunk by other customers of the defendant. However, the officers saw no unlawful acts or disorderly conduct while they were there. Evidence was introduced tending to show that defendant had permitted other children to be in and around his business establishment for the purpose of purchasing articles of merchandise other than beer which were offered for sale, but it appears that defendant did not permit children to loiter there. There is also proof that the grandmother of the girl above mentioned had sent her to defendant's place of business to purchase soft drinks. However, there is no evidence indicating that defendant sold beer to the girl, or to any person under the age of eighteen years. Nor was evidence offered by the State in support of the specific acts and conduct of defendant relative to enticement and encouragement of the girl to leave her home, to stay in defendant's home, or to knowingly associate with immoral persons.
At the trial, upon conclusion of the State's evidence, defendant moved the court to strike the same from the record and to direct a verdict of not guilty. The trial court overruled this motion and thereupon defendant proceeded to offer evidence in his behalf. After the rendition of the verdict the defendant moved the court to set the same aside and to grant him a new trial on the ground that the verdict was contrary to the law and to the evidence. The court overruled this motion and proceeded to enter judgment on the verdict. It is upon these actions of the...
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