Wedmore v. State
| Decision Date | 19 April 1956 |
| Docket Number | No. 29289,29289 |
| Citation | 133 N.E.2d 842,235 Ind. 341 |
| Parties | Jack WEDMORE, Richard Wedmore, Appellants, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
George T. Patton, South Bend, for appellants.
Edwin K. Steers, Atty. Gen., of Indiana, Owen S. Boling, Deputy Atty. Gen., of Indiana, for appellee.
This is an appeal from a criminal action charging the appellants and one Holderman of contributing to the delinquency of minors by encouraging them 'to use intoxicants, to-wit: beer.' The appellants were tried and found guilty by a jury as charged, and were sentenced to pay a fine of $250 each. Judgment was rendered accordingly, from which this appeal is taken.
Appellants assign error in the overruling of three separate motions to be discharged for lack of prosecution under the 'term statutes,' §§ 9-1402 and 9-1403, Acts 1905, ch. 169, §§ 219 and 220, p. 584; 1927, ch. 132, § 12, p. 411.
Section 9-1402, supra, in part provides:
'* * * And no defendant shall be detained in jail, without a trial, * * * more than two (2) terms after his arrest and commitment thereon * * *.'
Section 9-1403, supra, provides in part:
'No person shall be held by recognizance to answer an indictment or affidavit without trial for a period embracing more than three (3) terms of court, * * *.'
The record shows the charges against the appellants were filed on April 4, 1953, and they were arrested on the same day. On April 7, 1953, they wer released on their own recognizance 'for the reason they are charged in another cause in this court and are now under $5000 bond each.'
The record shows that neither of appellants were held by any recognizance bond for this charge until appellant Jack Wedmore gave a bond in the amount of $1,000 approved on December 7, 1954. Between that date and the time of the trial, January 11, 1955, three terms of court had not run.
As to the appellant, Richard Wedmore, the record does not show that he ever gave bond or was in jail under the charge with which we are concerned in this case. The record does show that he was confined in jail and in the Indiana State Reformatory under another charge.
It was incumbent upon the appellants to show that they came clearly within the terms of the provisions of the above statutes. Where it appears that appellants gave no recognizance bonds by reason of the action with which we are here concerned, and were not in jail as a result of this charge for the period provided in the related statute, § 9-1402, supra, the statutes have no application in such cases and appellants are not entitled to be discharged thereunder. Woodward v. State, 1910, 174 Ind. 743, 93 N.E. 169; State v. Beckwith, 1947, 225 Ind. 288, 290, 291, 74 N.E.2d 742, 743.
This court in State v. Beckwith, supra, made the following comment relative to a like situation:
Since the appellants have not brought themselves within the purview of the statutes, §§ 9-1402 and 9-1403, supra, upon which they rely, we find no error in the trial court's refusal to discharge the appellants.
The appellants further claim error in the overruling of their motion for a new trial on the ground that the verdict is not sustained by sufficient evidence. The offense charged in this case alleges that the appellants and one Jack Holderman 'did then and there unlawfully contribute to the delinquency of a minor child, to-wit: Nancy Marie Reed, a female then and there being under the age of eighteen (18) years, to-wit: fifteen (15) years; Martha Ann Richards, a female, then and there being under the age of eighteen (18) years, towit: fourteen years of age, and Carroll Bauer, a female, then and there being under the age of eighteen (18) years, to-wit: sixteen (16) years of age, by knowingly, wilfully encouraging and causing said Nancy Marie Reed, Martha Ann Richards, and Carroll Bauer to use intoxicants, to-wit: beer as a beverage, contrary to the form of statute in such cases made and provided and against the peace and dignity of the State of Indiana.'
The statutes under which this action is brought are § 10-812, Burns' 1942 Repl. 1953 Supp., being Acts of 1945, ch. 218, § 1, p. 1011; § 9-3204(14), Burns' 1942 Repl. 1953 Supp., Acts 1945, ch. 356, § 4, p. 1724, which read as follows:
'It shall be unlawful for any person to cause or encourage any boy under the full age of eighteen (18) years, or any girl under the full age of eighteen (18) years, to commit any act which would cause such boy or girl to become delinquent child as defined by the laws of this state;
* * *
* * *
'Or for any person to knowingly encourage or contribute to or in any way cause any such boy or girl to violate any law of this state or ordinance of any city;
* * *
* * *
'Or for any person by any continued negligence or wilful act, to encourage, or cause any such boy or girl to become a delinquent child as defined by the laws of this state;
'And, any person so offending shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not to exceed five hundred dollars ($500) to which may be added imprisonment in the county jail for a term not to exceed six (6) months.' (Our italics.) § 10-812, supra.
'The words 'delinquent child' shall include any boy under the full age of eighteen (18) years and any girl under the full age of eighteen (18) years who:
* * *
* * *
'(14) Uses intoxicating liquor as a beverage, * * *.' § 9-3204(14), supra.
We must, therefore, consider the evidence most favorable to the state, not for the purpose of weighing the same, but for the purpose of determining whether there is any evidence of probative value to support the verdict of the jury. Watson v State, Ind.1955, 125 N.E.2d 793; Dixon v. State, 1945, 223 Ind. 521, 62 N.E.2d 629; Osbon v. State, 1938, 213 Ind. 413, 13 N.E.2d 223; Rhoades v. State, 1949, 227 Ind. 126, 84 N.E.2d 583.
Here we have a situation where two men, Richard Wedmore and Jack Holderman, picked up two girls, ages 14 and 15, under the false representation to the father of one of the girls that they were taking the girls to baby sit for Wedmore's sister, in which false representation the girls concurred. Instead the men told the girls, 'We are going dancing, have a party,' and took the girls up to Michigan and bought two cases of beer. The colloquy of the 14 year old girl regarding their trip to michigan is as follows:
On their return they took one case of beer to the Wedmore apartment, where they picked up Jack Wedmore, aged 23, Richard's brother, who was separated from his wife. Then the three men and the two girls, Martha Richards and Nancy Reed, went to pick up another girl, Carroll Bauer, aged 16, for Jack Wedmore. They all then went to the apartment of Jack Holderman, where a case of beer was taken in. While in the Holderman apartment all the parties had spaghetti, meat and beer in the kitchen. Regarding Jack and Richard Wedmore drinking in the presence of the girls, Martha Richards stated: 'I don't recall if they were drinking or not, although they probably were.' From the kitchen the parties went into the living room to dance. Martha Richards consumed beer in the kitchen and also in the living room. Nancy Reed testified that she drank beer in the kitchen and also that she took some sips of beer during the dancing breaks. The parties ate, danced and drank beer and wine at the Holderman apartment from about 4:30 P.M. to 6:45 P.M., at about which time they all went back to the Wedmore apartment. When they left the Holderman apartment Carroll Bauer was drunk.
About 7:30 P.M. Jack Wedmore's wife, who was living at a separate address, came to the apartment to get some of her clothes. When she arrived Martha Richards and Jack Holderman were gone. Jack Wedmore and Carroll Bauer were in the kitchen and Nancy Reed was in the bedroom with Richard Wedmore. The 'party' broke up when Mrs. Wedmore asked the age of one of the girls and called the police.
In callenging the sufficiency of the evidence to sustain the verdict, appellants rely upon the fact that in order to support a conviction there must be an affirmative, positive and purposeful act committed by the defendants which encouraged the minors to 'use(s) intoxicating liquor as a beverage'. § 10-812, supra. See Embry v. State, 1951, 229 Ind. 179, 96 N.E.2d 274; Murphy v. State, 1916, 61 Ind.App. 226, 111 N.E. 806; Stone v. State, 1942, 220 Ind. 165, 41 N.E.2d 609. It is urged that the evidence fails to establish this essential element of the charge. For example, it is argued that for an adult to merely buy beer in the presence of a minor is no criminal offense. For an adult to convey beer in a car with minors therein is no criminal offense. For an adult to place unopened cans of beer before a minor is no criminal offense. For an adult to open and drink beer in the presence of minors is no criminal offense. That an adult is guilty of no criminal offense if minors use or consume beer in his presence if he does not give them the beer or ask...
To continue reading
Request your trial
-
Shorter v. State
...liquor as a beverage combined to constitute the criminal offense.' (Emphasis supplied in part.) Wedmore et al. v. State of Indiana (1956), 235 Ind. 341, at 348--349, 133 N.E.2d 842, at 846. See also, Reeves v. State (1974), Ind.App., 315 N.E.2d The statements of fact and reasonable inferenc......
-
Reeves v. State
...§ 10--812 (Burns 1956), and IC 1971, 31--5--7--4 (Burns Code Ed.). We cannot agree. Addressing this question in Wedmore et al. v. State (1956), 235 Ind. 341, 133 N.E.2d 842, our Supreme Court 'In determining whether appellants by 'wilful act' 'encourage(d)' these minors to 'use(s) intoxicat......