Stone v. State
| Decision Date | 12 May 1942 |
| Docket Number | 27654. |
| Citation | 41 N.E.2d 609,220 Ind. 165 |
| Parties | STONE v. STATE. |
| Court | Indiana Supreme Court |
Appeal from Owen Circuit Court; Frank M. Martin, Judge.
Carl Humble, of Spencer, for appellant.
Geo N. Beamer, Atty. Gen., Norman E. Duke, Dep. Atty. Gen., and Lee W. Kirkpatrick, Pros. Atty., of Spencer, for appellee.
The appellant was convicted upon a charge of contributing to the delinquency of a child, and was sentenced to serve six months in the Indiana Woman's Prison, the maximum imprisonment provided by the statute. The conviction was in the Owen Circuit Court, acting as the Juvenile Court of Owen County. Certain questions as to the constitutionality of the statute under which the appellant was convicted are presented and require consideration, and therefore the appeal is properly taken to this court.
There were two counts upon which the appellant was convicted, the substantial parts of which were as follows:
First Count.
'* * * Barbara Stone, being then and there an adult person, did then and there unlawfully commit acts and omissions which did then and there encourage and tend to cause a certain child to wit, Katherine Frye, being then and there a child under eighteen (18) years of age, to be and to become a delinquent child, by then and there committing acts and omissions which encouraged and tended to cause the said Katherine Frye to
'1. Be wayward and habitually disobedient and uncontrolable by her parents in this to wit, by then and there encouraging said child to remain out all night from her home and with and in the presence of the said Barbara Stone and two (2) male persons.
* * *'
Second Count.
'* * * Barbara Stone, being then and there an adult person, did then and there commit acts and omissions which encouraged and tended to cause a certain child, Maxine Manley, being then and there under the full age of eighteen (18) years, to be and become a delinquent child by then and there counseling, encouraging and causing said child to
* * *'
The prosecution is under section 18, chapter 233, Acts 1941 pages 902, 913, which provides: * * *' By section 3 of the act (page 902) it is provided that: 'The word 'adult' means a person eighteen years of age or older.'
The appellant's motion to quash both counts of the affidavit was overruled.
There was a trial by jury. The appellant's motion for a new trial was overruled.
Error is assigned upon the overruling of the motion to quash and the motion for a new trial. It has been concluded that the statute is unconstitutional upon one ground at least, and probably upon two, and that if constitutional the evidence is insufficient.
The age of the appellant is not disclosed by the evidence, although it may be surmised that she was a young girl, and of the approximate age of eighteen years. The statute, if it is valid, applies only to adults. The affidavit would not state an offense unless it alleged, as it does, that the defendant is an adult. What must be alleged must be proven, and there is no proof of the appellant's age. The appellee contends that this was matter of defense, but it is not, and no authority is cited to sustain the contention.
The evidence is brief and without conflict. Under count one it is to the effect that the defendant and Katherine Frye, seventeen years old, came down town in the evening from Katherine Frye's home. They met two boys, went around town together, rode on a ferris wheel, and then went to a park. Barbara went home before 11 o'clock. Katherine stayed in the park with the boys until daylight, and then the boys went with her to her grandmother's. There is no evidence that Barbara, whose age is not disclosed, counseled or encouraged Katherine to remain out all night, or that she knew, or had reason to know, that Katherine intended to stay out all night, or that, knowing of such an intention, she had any power or influence to prevent it. This is clearly not sufficient to sustain the allegations of the first count of the affidavit.
On the other count, Maxine Manley testified that she was fourteen years old. She met Barbara, who asked her to go to a show. Barbara had cigarettes and offered Maxine one. Maxine took it and gave it away, and did not smoke it. There is no evidence that the defendant encouraged the smoking of the cigarette, as alleged in the affidavit, beyond giving it to Maxine, and to this extent the evidence is not broad enough to prove all that it was deemed necessary to allege. But even if there had been evidence of encouragement to smoke a single cigarette, which would have made the proof conform to the affidavit, still, we do not think it would have been sufficient to establish an offense under the statute. In other words, the second count does not charge an offense. The statute does not condemn specific facts. It condemns any and all acts or omissions which are calculated to, or tend to, produce certain results. It seems clear, however, that it was not intended to cover and punish a single, isolated act of giving a cigarette to a minor. Section 10-802, Burns' Ind.St.1933, section 2821, Baldwin's Ind.St.1934, makes it unlawful to sell or give a cigarette to any minor. The penalty for the first offense is a fine of not less than $10 nor more than $50. For the second offense the fine is not less than $10 nor more than $500, to which may be added imprisonment not exceeding sixty days. This cigarette statute is not expressly repealed by the present law, nor is the offense of giving a cigarette to a minor so clearly included within the acts condemned by the present law to justify the conclusion that the former law is repealed by necessary implication. If it was the legislative intention to repeal the former law and make the present one applicable to the offense of giving a single cigarette to a minor, it must have been because the Legislature thought the much heavier penalty provided for in the present law is more appropriate to the offense. The history of our legislation concerning cigarettes does not sustain the view that there was any such intention.
The act which creates and defines the crime of which appellant was convicted is entitled, 'An act concerning juvenile courts.' Section 19 of...
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Stone v. State, 27654.
...220 Ind. 16541 N.E.2d 609STONEv.STATE.No. 27654.Supreme Court of Indiana.May 12, Barbara Stone was convicted for contributing to the delinquency of a child, and she appeals. Reversed with instructions. [41 N.E.2d 610]Appeal from Owen Circuit Court; Frank M. Martin, Judge.Carl Humble, of Spe......