Wallin v. State

• Decision Date: 12 March 1947
• Docket Number: A-10623.
• Citation: 182 P.2d 788,84 Okla.Crim. 194
• Parties: WALLIN v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

182 P.2d 788

84 Okla.Crim. 194

WALLIN v. STATE.

No. A-10623.

Court of Criminal Appeals of Oklahoma

March 12, 1947

Rehearing Denied April 30, 1947.

Appeal from Court of Common Pleas, Oklahoma County; Carl Traub Judge.

Walter Lavoy Wallin was convicted of contributing to the delinquency of a minor, and appeals.

Affirmed.

Syllabus by the Court.

1. The preventive and protective nature of the Juvenile Statutes require that they be liberally construed in order that their usefulness and strength may not be impaired.

2. When given its usual and accepted meaning, the word 'encourage,' contained in the provisions of § 857 Title 21 O.S.1941, is broad enough to include any willful suggestion, act or course of conduct on the part of a person knowingly committing the same, which would incite, foster stimulate, or tend to advance a child to become a juvenile delinquent, and is within the penal provisions of the juvenile delinquency statutes, irrespective of whether the child does or does not become delinquent by reason of said suggestion, act, or course of conduct.

3. A single act may constitute a violation of more statutes than one.

4. Where the facts alleged in an information charges contributing to the delinquency of a minor, a misdemeanor, though the same facts might have been the basis for the charge of indecent exposure, will not invalidate the information or void the prosecutor's election.

5. The defendant's contention that the court erred in not granting him a jury trial upon the suggestion of insanity by an unverified motion made on his behalf by his counsel, after conviction, is without merit.

6. An examination of the record herein discloses that the defendant's evidence in support of a claim of insanity wholly failed to bring him within the rule clearly and correctly announced in Bingham v. State, Okl.Cr.App., (not yet reported in State Reports), 165 P.2d 646.

Robert R. Rittenhouse, of Oklahoma City, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.

BRETT Judge.

The defendant, Walter Lavoy Wallin, was charged by information in the Court of Common Pleas, of Oklahoma County, Oklahoma, with the crime of contributing to the delinquency of a minor, in words substantially as follows, to wit:

'* * * contributing to the delinquency of a minor in manner and form as follows: That is to say, the said defendant in the County and State aforesaid, and on the day and year aforesaid, then and there being, knowingly and wilfully cause, aid, abet and encourage one Nancy King, a female under the age of eighteen years, to wit, of the age of nine years, to become a delinquent child, in manner and form as follows: That is to say, the said defendant did wilfully, lewdly and lasciviously, in such manner as to be offensive to decency and calculated to excite vicious and lewd thoughts to the said Nancy King, by calling the said Nancy King to his car and exposing his privates, with the wilful and unlawful intent to excite vicious or lewd thoughts in the mind of said Nancy King.'

The information was filed on November 15, 1944, and to which the defendant entered a plea of not guilty.

Thereafter, the defendant was permitted by the court to withdraw his plea of not guilty for the purpose of filing a demurrer to the information. Upon presentation thereof, the demurrer was overruled, and thereupon, the defendant again entered his plea of not guilty. On December 18, 1944, the cause came on for trial, at which time the defendant withdrew his plea of not guilty and entered his plea of guilty to the crime charged in the information. Sentence was deferred until December 21, 1944. On the 19th day of December, 1944, the defendant filed his motion for a new trial as well as a motion in arrest of judgment. The motion for new trial, in substance, alleged the insufficiency of the information to charge an offense, and, if it did charge an offense, it showed on its face the defendant, if guilty, would be guilty of indecent exposure, a felony, and not the misdemeanor alleged, of contributing to the delinquency of a minor.

The motion in arrest of judgment, in substance, suggested that at the time the defendant committed the alleged offense and at the time of the filing of motion in arrest of judgment, said defendant was of such unsound mind that he could not be legally held for the commission of the offense charged in the information; that he was so mentally deranged that he does not know and cannot ascertain the difference between the rightfulness and wrongfulness of his acts, and particularly of the acts contained in the information. The suggestion was made that an inquiry be made upon the sanity of the defendant.

Thereafter and on the 21st day of December, 1944, both the motion for new trial and the motion in arrest of judgment, after a hearing, were overruled by the court, from which ruling this appeal was perfected. On this record, the defendant makes two contentions:

First. That the Court of Common Pleas of Oklahoma County was without jurisdiction over the person of this defendant or the subject matter of said action for the reason that the information filed herein purports to charge the defendant with a misdemeanor under the laws of the State of Oklahoma and said court has no jurisdiction to try, hear, or determine the issues in a Criminal Prosecution where the facts alleged make out a felony.

Second. That it was error for the court to overrule the motion in arrest of judgment and refuse to the defendant a trial by jury to determine the sanity of said defendant at the time of passing judgment and sentence upon said defendant.

This case is one of first impression and therefore of more than ordinary importance, in the interpretation of the juvenile statutes.

In his first assignment, the defendant contends that the charging part of the information is insufficient to bring him within the sections 856, and 857, Title 21 O.S. 1941, which sections define contributing to the delinquency of a minor. The pertinent portion of § 856 is as follows:

'Every person who shall knowingly or willfully cause, aid, abet, or encourage a minor to be * * * or to become a delinquent child, * * * shall, for the first offense, be guilty of a misdemeanor * * *.'

§ 857, the pertinent part thereof, reads as follows:

Subd. 1. "Every person,' as used in this Act, shall include human beings, without regard to their legal or natural relationship to such minor, * * *.'

Subd. 2. "Minor' or 'Child,' as used in this Act, shall include male or female persons who shall not have arrived at the age of eighteen (18) years * * *.'

Subd. 3. "Encourage,' as used in this Act, in addition to the usual meaning of the word * * *.'

The defendant contends that the information does not charge an offense within the foregoing statutes but it charges the defendant with an offense defined under the provisions of § 1021 of Title 21 O.S. 1941, to wit, indecent exposure--the pertinent portion of which reads as follows: Every person who wilfully and lewdly either:

First. 'Exposes his person, or private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby * * * is guilty of a felony and upon conviction therefor shall be punished, * * * etc.'

It is true, the facts plead in the information would support a case of indecent exposure, a felony. This fact, however, will not bar the State from charging a misdemeanor if the facts upon which the case is based are within the statute defining a misdemeanor.

We are of the opinion that the charge in the information is well grounded. This conclusion is based upon the wording of sections 856 and 857, Title 21 O.S. 1941, and the evil at which the statute is directed; the usual meaning of the terms of the statutes as well as the object of its protection. § 856 reads in part as follows:

'Every person who shall knowingly or willfully * * * encourage a minor to be * * * or to become a delinquent child, * * * shall * * * be guilty of a misdemeanor * * *.'

§ 857 reads in part:

"Encourage,' * * * in addition to the usual meaning of the word, * * *.'

We must therefore look to the usual meaning of the word 'encourage,' since the statute, as applied to the facts in this instance, must be construed upon the usual and not the special meaning which has been given to it in subsequent, definitive portions of the statute. Webster's New International Dictionary defines 'encourage,' among other meanings, as follows: 'to foster, to animate to incite, to embolden, to stimulate, to promote, to instigate, to advance, etc.' Hence, under the statute, any wilful suggestion, act, or course of conduct on the part of a person, knowingly committed, which would tend to foster, animate, incite, stimulate, embolden, instigate, promote, or tend to advance a child to become a juvenile delinquent, is within the statute. Clearly, the act complained of in the information herein comes within the definition of 'encourage.' What was done would tend to incite, to advance, and to suggest evil and degrading sex thoughts in the mind of the child before whom the exposure was committed. Certainly the act would not advance the juvenile mind to goodness, but on the contrary, to immorality. Most assuredly, it would tend to corrupt the child's mind and contribute in some measure to lewd and lascivious thoughts and conduct on her part. In any event, it leaves the impression of the exposure on the juvenile mind, which certainly opens the avenue that may lead to delinquency. At these possibilities, the statute is directly aimed. The conduct herein complained of was clearly within the definition of 'encouraging and contributing...