164 N.E. 649 | Ohio Ct. App. | 1928
The plaintiff in error, Esther Edmonds, was convicted in the common pleas court of this county on a charge of contributing to the delinquency of a minor, 17 years of age, and sentenced to the reformatory for women at Marysville, Ohio, for an indeterminate term. Error was prosecuted to this court, and the question made by the plaintiff in error is that the affidavit does not charge an offense. The affidavit charges:
"That on or about the 29th day of June, 1927, at the county of Mahoning aforesaid, one Esther Edmonds did contribute toward the delinquency of one Frances Miller, then and there a minor under the age of seventeen years, to wit, of the age of seventeen years, in this, to wit: In that she was a party in taking said minor away from home, contrary to the wishes of her mother, and in divers other ways and times she, the said Mrs. Esther Edmonds, did willfully and unlawfully contribute to the delinquency of said minor, Frances Miller, she, the said Mrs. Esther Edmonds, well knowing the said Frances Miller to be such minor."
It is true that the affidavit contains the averment that the defendant "was a party in taking said minor away from home contrary to the wishes of her mother." A minor would not be a "delinquent child" under Section 1644, General Code, merely because it left home against the wishes of its mother. The affidavit also charges generally that the defendant contributed to the delinquency of the minor "in divers other ways and times" without specifying in what the delinquency consisted.
It is fundamental that there can be no valid conviction upon an affidavit which charges no offense *197 against the laws of the state of Ohio. We think it is wholly insufficient, even where the question is not raised until after conviction, to charge delinquency in an affidavit without specifying some facts which show that the minor was a "delinquent child" within the meaning of Section 1644, General Code, and that it is not sufficient to charge the offense of contributing to the "delinquency" of a minor in the language of the statute, as found in Section 1654, General Code. Section 1644 defines specifically the meaning of the words "delinquent child," and Section 1654 makes it a misdemeanor to contribute toward the delinquency, "as herein defined, of a minor under the age of eighteen years." The words "as herein defined," as used in Section 1654, insofar as they relate to delinquency, refer to the definition of "delinquent child" contained in Section 1644. It is apparent that a child may be guilty of an act of delinquency other than those enumerated in Section 1644; but such an act would not be a violation of the statute. An affidavit states no charge under Section 1654, unless it charges some one or more acts of delinquency specified in Section 1644. The affidavit was therefore fatally defective, even after judgment.
For the reason that the affidavit charged no offense under the laws of Ohio, the judgment of the court below will be reversed and the defendant discharged. As the defendant has never been charged with an offense, there is no reason why a sufficient affidavit may not be filed and a trial of the cause had thereon in accordance with law.
Judgment reversed.
FARR and THOMAS, JJ., concur. *198
Judge WILLIAMS, of the Sixth Appellate District, and Judge THOMAS, of the Fourth Appellate District, sitting in place of Judges POLLOCK and ROBERTS, of the Seventh Appellate District.