*1 469 Mullally Bd. ok Education. Trenton v. Opinion ti-ie Court. ,5 damages has way school district the defendant request failing right relief to such waived the past in the and will in the has this court it, but damages against appropriate cases, assess future, Greening appeals. bring In re parties frivolous who App 22. 9 Mich Estate affirming court, circuit enter An order to the defendant. with costs J., H. P. J., McGregor, and concurred. Gillis, 5 27A.2445[3]), 1961, (Stat GCB Ann 1962 Rev CLS 600.2445 § § [2], 816.5 v. OWENS. PEOPLE Court. Materia. in Pari
1. Statutes —Construction—Consideration encourage or contribute making it a misdemeanor A statute delinquent neglected or com- becoming or a minor child toward pro- juvenile ing jurisdiction division under the pari being in materia with a bate court must be construed juvenile division of the defining jurisdiction statute amended, 750.145). (CL 712A.2 as probate court §§ [5] £6] £8,16] £10] [1, 9,11] [4] £7] [3,15] [2,14,17-19] [12,13] Am Jur lected Children § Neglected Children §§ lected Children §§ 5 Am 50 Am and lected Children § Am Am 31 41 Am Jur Am Neglected Children 50 Jur Am Jur, Jur, Jur, Jur, Am 2d, Appeal 31 Am References Jur, Statutes § Juvenile Juvenile Jur, Juvenile Courts and 2d, 2d, Appeal and Error Juvenile Statute Jur, 90. 101. Indictments 97, 100. Courts and Courts and Juvenile Courts 235. 95, 98. for Points § § 92 et Error Courts and 348 and Informations seq. et Delinquent, Dependent, Delinquent, Dependent, Delinquent, 599. seq. in Headnotes Delinquent, 839. and Delinquent, Dependent, Dependent, and §§ Dependent, 9. and Neg- Neg- Neg- and Apr 13 Mich Vagueness—Contributing 2. Criminal Law —Due Process — De- op op linquency a Minor —Jurisdiction Probate Court. making encourage it a misdemeanor Statute or contribute to becoming neglected delinquent minor coming child un- *2 jurisdiction juvenile of probate der the the division of the court held, vague deny not so or indefinite as to right defendant informed required to be of the standard of conduct of him to defining jurisdiction conform when the ju- statute probate venile division of court in its amended form is con- (CL 1948, amended, 750.145). sidered 712A.2 as §§ Contributing op Delinquency 3. Same — to a Minor. obtaining girl Act of a defendant motel room for a who had away run from home “good eannot be said to be the act of a contributing Samaritan” and thus he was delinquency to the of girl a minor when defendant told the she away before ran he help would her and this contributed to her decision (CL 1948, amended, to 750.145). leave home 712A.2 as §§ Pleading Complaint—Instructions Jury Suggested 4. — to — Dorms —Dormbooks—Treatises.
Suggested complaints jury forms for instructions that are merely in a contained treatise are illustrative and are not binding on a as of particular court reflective the law aon issue. Complaint Appeal — — Preserving — Law Criminal and Error Question.
Objections to a criminal not raised at trial and not passed upon the trial will court not be considered on appeal. Construction—Meaning op 6. Statutes — Words. given
Words found in a statute customary are their usual and meaning in the context of the entire statute. Contributing op Delinquency 7. Criminal Law — a Minor —Ad- op judication Delinquency. adjudication delinquent neeessary Prior minor that a was is not contributing delinquency to a minor, conviction for of a tending whore the statute forbids also actions to cause a minor jurisdiction juvenile within come division of a amended, 750.145). probate (CL 712A.2 as court §§ v. Owens.
Dissenting Opinion.
Levin, Specific Charged. Process — Offense Law —Due 8. Criminal specificity right apprised charged to be accusation of process element due law. is a of of fundamental Contributing Delinquency of Minor —Due 9. Same — Charged. Specific Offense Process — contributing person a minor A accused exactly wrongdoing what the nature his entitled to Tcnow alleged (CL amended, 750.145). to be as §§71SA.2 Contributing — Delinquency of Minor- —Due 10. Same Charged Charged. Specific Not Offense —Crime Process — harboring a minor while she on a Conviction finding missing the basis home on from encouraged her home ivithout a minor child to desert sufficient process being because he is due cause denies defendant charged (CL crime the one convicted different 750.145). amended, 712A.2 §§ *3 — Appeal — — and Error Due Process Grounds Not 11. Same Charged in Information. appellate process due a State court to a denial It is of for grounds charged conviction on not in the a criminal affirm passed upon at trial. and not information Findings Findings Appeal Fact — and Error — of Not 12. Same — by Trial Court. Made appellate an court to It is not the find of facts function in order to buttress a conviction did not trier find of fact by the lower court. crime of Findings Appeal Nonjury Trial — of Fact — Error. 13. Same — findings judge specific importance requiring The of fact of of just great sitting jury as in criminal cases as in without 517.1). 1.963, (GCB cases civil Contributing Delinquency of a to the Minor —Statute. 14. Same — thought delinquency might Lvery possibly be to act further contributing forbidding by to proscribed the statute is not amended, (CL as delinquency 71.3A.fi a minor §§ of 750.145). 469. Contributing Delinquency 15. to the oh a Same — Minor —Provid- ing Shelter. Providing missing shelter to a minor while she is home does to contribute or tend contribute to itself being delinquency, proper question act whether the of adapted expected, actions are should be calculated or ordinary events, particular course cause child of alleged (CL commit the act §§71%A.$ of 750.145). amended, as Inhormation—Ambiguity. 16. Same —Due Process — Any ambiguity charging in an a crime should be information resolved in defendant’s favor. Contributing Delinquency 17. Statutes — to the oh a Minor- Vagueness. Due Process — portion malting a statute it a crime to contribute to a persons, child’s association “immoral” to his “immoral” vague subject or habitual “idleness” is as so life discriminatory application and is unconstitutional therefore (CL 1948, §§718A.2, amended, 750.145). and void as Vagueness. 18. oh Same —Protection Children —Due Process — argument It vague is not answer an that a statute is say adopted unconstitutional it was therefore for purpose protecting though children, even the State legislation properly proscribe drawn can minors that which for proscribe it could not adults. — — 19. Criminal Law Due Process All Prooh oh Elements oh Crime. process Due denied one who is convicted a crime without proof ingredient crime; therefore, an essential one encouraging cannot be convicted a minor her to leave home proof without cause unless there is that she home without left (CL 1948, amended, 750.145). cause §§71&A.Z Appeal from Recorder’s of Detroit, Court Sche- (Frank Gr.), manske J. Submitted Division Juno (Docket 1,755.) 7, 1967, at Detroit. No. Decided September *4 contributing
James Owens was convicted of to the delinquency appeals. of a minor. Af- Defendant firmed. v. Owens.
19(58] Attorney Kelley, Robert A. General, J. Frank Derengoski, Gahalan, L. General, William Solicitor Ap- Attorney, Torina, Prosecuting Chief Samuel Lawyer, Padzieski, Assistant pellate Richard J. and people. Attorney, Prosecuting for the Myeell defendant. Sowell, for Defendant-appellant con- was P. J. Fitzgerald, City of Detroit Court in the Recorder’s victed delinquency contributing to the a (Stat Ann 1962 750.145 minor under CL hy ques- appeals 28.340), his conviction and Rev following application tioning law to the of that facts: con- came into 5, 1965, defendant December
On defend- Koskela who informed Diane tact with Miss years age, tired that she was was that she ant parents, living and she her at home with have a musical com- Detroit and wished to move to by position heard the Motown she had written Recording Company. testified at Miss Koskela he Detroit, came to said if she trial that defendant days place stay. later, after Two would find her reaching Clarkston, Miss from her home Detroit telephoned and he Koskela for assistance defendant up by responded picking stop her at bus renting Koskela, Miss a motel room Detroit for whereupon immediately into residence. she moved activity alleged impropriety have oc- No frequent during vists to the defendant’s curred motel. picked up at Motown re- Koskela was
Miss cording father, on December her studio charging signed with con- warrant who neglect tributing aof minor *5 469. 13 Míen 474 op Opinion the Court. that Miss Koskela the trial It revealed at
child. was age. actually years of on Jan- convicted, and sentenced Defendant was days uary in the Detroit of 60 12, 1966, to term trial was A for new of motion House Correction. February filed defendant 4, 1966, and denied on and was sentence staying granted of execution an order pending his outcome of $1,500bail, appeal to this Court. language of CL are to construe the
We asked 28.340), (Stat § which Ann 1962 Rev 1948, 750.145 follows: any “Any by any person act, word, who shall encourage, tend to cause toward, cause or contribute any age years to of 17 become minor child under neglected come under the delinquent or tend to so as to come juvenile jurisdiction of the division chapter probate in of court defined section of 12a Act No 288 of the Public Acts as 1939, of First No of the Public Acts of the added Act thereto, 1944,
Extra whether amendments Session adjudicated in or not child shall fact be such guilty probate court, shall ward misdemeanor.” questions presents
Defendant us with three con- interpretation cerning an of this statute: vague and indefinite as not 1. Is the statute so sufficiently apprise defendant of the standard expected of him and the nature of the conduct against charges him?
2. the statute intended to cover this kind Was situation? adjudged the minor child be first de- Must guilt
linquent court determine in before the this kind situation? support alleging issue,
In first vague would have indefinite, statute v. Owens. op tiib Court. Ann 1962 Rev Stat following us look to note it is that: stated 28.340, -where ineffective, as amended section, “This or ‘delinquency’ ‘neglect’ all statutes since Op been repealed. have children is defined of minor 0-2917.” No. Dec. Atty Gen Township of Dearborn cite the case *6 The people 658, Mich 335 to this Court Clerk v. Jones as statute penal (such that a proposition for the jurisdiction stat- 750.145) juvenile and a 1948, CL § as 2 of (such chapter in that § to statute ute referred by No as added PA 1944 1939, [1st PA 288 12a of as No construed Sess], 54), together, must be Ex in materia on the same statute, as pari one being intent in order reflect the subject matter general Mich of v. Gould 237 the legislature. 156. 1948, of
Thus, appears history it the CL (Stat Ann Rev adds PA 28.340), § 750.145 1962 § of any No consideration the statute. 1945, 85, and indefinite in that vague The 1939 statute was to be de “neglect” “delinquency” it required opinion statutes of the state. 1944 fined the by 1939 lan attorney general the is based this However, was removed PA vagueness by the guage. 85, No the of CL 1945, changed language (Stat 750.145 Ann 1962 Eev its 1948, 28.340), § § present form and refers one to the juvenile juris (PA 288, diction statute No 12a 1939, § chapter by as added PA 1944 Ex No Sess], [1st 54 and amendments which must any thereto) be considered with materia 750.145 Ann paria 1948, (Stat § CL 28.340). 1948, Rev The relevant section of CL § as No 712A.2, (Stat § amended PA Ann 1968 Cum fol Supp [598.2]), § 27.3178 reads as lows : 13 op Opinión this Court. herein, juvenile division
“Except provided as have: court shall probate jurisdiction superior original Exclusive “a) court other any of the jurisdiction and regardless under 17 years child concerning in proceedings * * * county within the found age without sufficient his home deserted who has or who is “2) rea- disobedient repeatedly cause his parents, lawful commands sonable guardian custodian.” other sections, that these legislature the intent It is 712A.2 of CL language, § the above including Supp 27.3178 Ann Cum (Stat amended as under which the situations are to define ), [598.2] jurisdiction take of children court probate together When read years. of 17 age under 28.340), Eev (Stat Ann 1962 1948, § CL 750.145 purpose legislature apparent it is prohibit is to other retaining people this statute child’s within contributing coming 712A.2, amended 1948, § of CL application (Stat Ann 1968 27.3178 Supp § No 182 Cum PA *7 ). [598.2] in- is so vague find that section do not this
We right the as constitutional deny to defendant definite required the of conduct informed of standard to be him. against apprised charges him and to be of note of relied the solely language Defendant has men- general the the opinion attorney and 11, amend- without several therein, noting tioned law and have occurred since ments revisions of that the opinion issuance correct problems in and statute, the 1939 ob- found remove jection vagueness. 1948, second
Defendant’s contention is CL (Stat Ann 28.340), § 750.145 1962 Rev was not a intended cover situation such as this because V. OwTiNS. PjSOjWüK op the Court. acting “good pro- defendant was as a Samaritan” in viding lodging Miss Koskela with when she was a runaway girl exposed “unsavory to the elements community” the to and that the statute is not intended punish “good Samaritans”. While the latter true, we fail to discover evidence from the “good record that the defendant itan” and in effect this a acted as Samar- allegation is made first on appeal encouraged by girl to this Court. The was defendant’s offer of assistance to leave her home in up lodging Clarkston and take in Detroit in a motel paid encouragements room for defendant. These appear very girl years would attractive to age, exactly type and are of activities which §§ pro- CL 712A.2 and 750.145are intended generosity providing hibit. The runaway girls for home minor cannot be said to bo good an act of Samaritanism when he has abetted girl’s departure by promises from home of as- sistance. allegation
Defendant’s third to this Court is that properly he could not have been convicted adjudicating without the trial court first delinquent that Miss Koskela child. We are Gillespie, Michigan furnished with a citation to 3 (2d ed), §§ Criminal Law and Procedure suggested wherein the author sets forth forms complaint jury and for the instructions to the contributing in a case of
neglect suggesting of a minor, the forms the in- language stating clusion of that the minor child had delinquent adjudged been first to be child before emphasized the that these forms are It must be was issued.
merely illustrative are not absolutely upon appellate binding an or trial court law reflective on the issue. Gillespie, Michigan
We direct defendant (2d ed), § 184, Law and Procedure and the Criminal *8 Arp 13 op the Court. People Mich. where- v. Dowd case object permission Dowd denied the Court complaint he was under which the arrested when was and warrant plead in- to an
he called on following Here, de- examination. formation fendant his ques- longer raises the and first waits even appeal, and therefore tion on about Callaghan’s 1at cases cited be heard. See he cannot §§ Digest, Appeal 285, 286. Michigan Error, Michigan Gillespie, 2to also direct We (2d ed), § 806: Procedure Law and Criminal during “Objections the trial and not not raised upon by passed considered court, will not be the trial appeal upon for the appeal. made first A claim appellate which was not called court, time in the to the attention con- cannot be below, court sidered.” accepted language of the above has This Court Supreme Michigan case of in the Court
the v. Willis tion. qualifica- without 1 Mich dispose fully of defend- order to However, with- allegation not be convicted he could ant’s delinquent, adjudged being first out Koskela Miss dispel briefly in order to issue will discuss we may in- in the any terpretation result confusion future (Stat Ann 1962 750.145 of CL spe- purposes, 28.340). For clarification Rev language be reiterated considered cific to be follows: here as any by any person
“Any word act, who shall encourage, or tend to cause toward, cause contribute years age to become of 17 child under the minor delinquent neglected come or tend to so as to juvenile jurisdiction division under come probate shall or not such child court whether probate adjudged a ward of the in fact be court.” (Emphasis supplied.) *9 v. Owens. Opinion op the Court. people suggest language
The that the “tend by legisla- cause” and “tend come” was added the person by with ture the intent that a who could, his delinquency, actions, lead or direct a minor child into although would be in violation of the statute, the adjudged delinquent by pro- child had not been prior person bate court to conviction of the for Ms actions.
giveWe
words
in a
found
statute their usual and
customary meaning in the context of the entire stat-
Michigan
ute, Sanchick v.
Board
Examiners in
Optometry (1955),
accept
The decision finding guilty of contribut- of Detroit pur- neglect ing of minor (Stat § Ann 712A.2 as CL amended suant to [598.2]), Supp § and CL 27.3178 1968 Cum 28.340), (Stat Rev is affirmed. Ann 1962 750.145 P. J., J. concurred Fitzgerald, McGregor, (dissenting). complaint charged Levin, word, act, or M. Owens defendant James encouraged caused or tend- toward, and contributed a *10 age Kos- the of Diane ed cause under child delinquent neglected or as to so to become kela, jurisdiction under of the the come, or tend come, juvenile probate court division of the “did and harbor said defendant then there missing from home” Koskela while she was Diane (Stat § of 750.145 Ann 1962 violation CL supplied.) §28.340). (Emphasis The case Rev jury. judge found the was without a The tried guilty, stating: defendant age. paid years of He rent is sixteen her “She kept her at the motel.”
I. majority the defendant’s conviction affirms support would their view of the evidence because causing encouraging “to for or child conviction cause.” If her home without sufficient Diane desert cause,” without sufficient her home “deserted delinquency.1 was But the defendant act an contributing charged encouraging to that with complained of the act. The actions opinion, Michigan penal majority code explained in As 28.340]) (CL Ann 1962 Rev refers provision 750.145 § [Stat § (CL 1948, Ann 3968 712A.2 as amended probate eode [Stat to the Cum commission misdeeds, 27.3178(598.2)]) Supp definitions juvenile delinquency. which constitutes People v. Owens. Dissenting Opinion Levin, J. charged occurred after Diane left home. He was harboring with missing Diane “while she was home.” recently
Our Court observed: right apprised specificity “The to be with charged accusation is indeed a fundamental element process; right repeated of due this is in the Michi- gan Constitution and the statutes of our State, and guarded vigilance by appellate is its courts.” v. Anderson 110, 114. surplusage We cannot discard as mere the state ment in the charging and warrant “harboring” defendant writh Diane while she was away defining from home.2 3Thestatute the crime contributing of a minor great length.3 charged One with that crime is en titled to know whether the basis encouraged that he the child: municipal to violate a law; ordinance or to desert his home without sufficient cause; n tobe repeatedly disobedient to the reasonable and parent, lawful guardian, commands of his or other custodian; repeatedly persons associate with immoral premises lead an immoral life or to be found on occupied illegal purposes; or used for willfully repeatedly absent himself from *11 repeatedly school regulations or to violate rules and
thereof; habitually away to idle time; his repeatedly patronize frequent (CL taverns § 1948, 712A.2 [Stat as amended PA 1965, No 182 Supp § (598.2)]); Ann 1968 Cum 27.3178 provision whether is it claimed that other some applicable. of the relevant statute is 2 1948, (Stat See CL 28.987). 767.47 Ann 1954 Rev Where § § charged, misdemeanor and warrant function as an information. 3 See footnote 1. 482 33 Aim 469. Mich JDikhknting Opinion by Levin, consequence may appropriate be the Whatever complete conviction, demand,
for failure to before charge,4 specificity where the of a clarification language requires clarification statute’s multifarious and a specific charge alleged harboring Diane — people missing are home”—the “tvhile she appears in the definitiveness bound whatever limiting proceed may charge if the aver not surplusage. charge Convict are mere ments of the ing the crime of a crime other than the defendant process charged him due which was denies with he Oregon DeJonge (1937), 362 353, 299 US v. of law. 278).5 (57 Ed Ct 255, 81 L S
II.
record
sufBcient evidence
Even if there is
encouraging
support
Diane
a conviction for
cannot
conviction
home, the defendant’s
desert her
appeal
ground.
In
v.
Cole
on that
sustained on
be
(68
(1948),
L Ed
196
Ct
92
333 US
S
Arkansas
Supreme
644),
it was
held
States
Court
the United
appellate
process
court
due
for a
State
denial
grounds
on
not
conviction
affirm a criminal
upon
passed
charged
and not
at
in the information
parts
apposite
language
I and
under both
In
trial.
(p 201):
opinion,
declared
this
the Court
II of
process
due
to send
much a violation of
“It is as
charge
following
prison
conviction of
an accused
as would be to con
never tried
it
he was
on which
upon a
that was never made.”6
him
vict
4
Frencavage
242, 244,
People
231
Compare
v.
also,
See,
§28.1016).
(Stat Ann 1954 Rev
CL
767.76
(2d ed),
Michigan
& Prac
Gillespie,
Crim Law
(88
S Ct
Compare In re
390 US
Buffalo
proceeding's, adding of a
disallowing,
117),
in disbarment
L Ed 2d
testimony.
charged lawyer’s
eliarge
own
now
basis
Frencavage,
supra,
245, holding
p
Similarly see
v.
theory
from that
affirmed on a
different
conviction
judge.
adopted by the trial
*12
People
v. Owens.
Dissenting
by
J.
Opinion
Levin,
charged
only
not
with en
the defendant
Not
was
couraging
her
but the trial
home,
to
Diane
desert
guilty
encouraging
judge
Diane
find him
not
did
found that the defendant
He
home.
desert her
to
kept
motel.
is
paid
her at the
That
and
her rent
say,
“while”
the motel
she
her at
“harbored”
he
charged.
away
The record evi
from home as
was
require
by
necessarily
a conclusion
does not
dence
encouraged her to leave
that the
the trier
beyond
find facts the
function to
is
our
home. It
below.7
the
find to
conviction
buttress
trier did
findings of
requiring specific
importance of
nonjury
tlie
7 In
cases
facts,
ascertaining
in
the
judge’s care
tlie trial
faet
to evoke
review,
appellate
decided,
as an
just
and
aid
make clear
is
what
every jurisdiction
virtually
universally acknowledged that
now so
by
by
judge
a
fact-finding
in
cases tried
requires
the trial
eivil
Holtzoff,
787;
&
Jur, Trial,
1133, p
Barron
judge.
2B
53 Am
§
Procedure,
pp 479-482.
Federal Practice
§
by
fact-finding
in
exists
case tried
a criminal
The same need
jury.
judges
at
mistaken as
judge
If
were not
times
without
a
to the
of a
judge
for misdirection
law,
ever be reversed
no trial
would
review
our
jury,
need for further
and there would be no
by
Supreme
Judges
are sometimes mistaken
Court
the
Court.
sense, findings
law,
to the law.
In
or at least differ as
paralleling
nonjury
serve a function
the
in a
criminal case
of faet
jury ease,
revealing
applied
judge’s charge in
that of
the law
probably
fact-finding
is
by
While
need for
the
finder.
there
less
faet
crime,
charged
is
so-called common-law
the accused
where
alleged
great
fact-finding
need for
where the
crime
defined
there
provisions,
in
loosely
probate
one
code
the
in
drawn
two
penal
in
code.
other
(1967),
App
In
Beaudoin
7 Mich
our
held
v.
Court
requirement
judge
findings
make
517.1’s
that
the trial
GCR
applies to
well as eivil
of faet
criminal as
trials.
fact-finding
relatively new,
in criminal cases is
While
it
is not
23(c)
procedure
federal
criminal
unknown. Buie
provides
rules of
fact-finding
by
requested
party.
when it is
for such
either
(RR
Jersey
3:7-l[e])
(rule
and Delaware
New
rules of
23[c]
superior court,
procedure
Ann)
adopted
have
criminal
Del C
23(e).
verbatim F R
PCr
In
(135
446),
court,
State v. Frost
to that the accused intend to. about delinquency, every might a child’s act which be thought delinquency proscribed by to further is not the statute. gone Diane
Had Koskela to the YWCA rented suggest a contributed to her no room, one would that institution had delinquency by renting her a room. Nor would that conclusion be different if it renting were established she told YWCA before away a room that had run she home.9 The proscribe furnishing statute does not or shelter food runaway. to a It does not make it a crime to do so, though runaway even quent. such action sustains the delin ary (Common 1959), In State v. Or Div, Pleas, Juv Op (155 262), 10 drug Ohio 2d NE2d the defendant proprietor alleged store to have “un- way lawfully tending in a acted to cause the delin- quency” boy 14-year-old by selling aof him a lewd magazine. acquitted The court the defendant be- maga- cause of insufficient connection between boy’s possible delinquency. zine and the In sale do- * * * separately the facts found and the conclusions of law shall be stated.” Specht See, also, (87 v. Patterson S US Ct 326), process, 18 L Ed 2d where the court observed: “Due requires words, present other counsel, op- with have an he be portunity heard, against him, to be be confronted witnesses right cross-examine, have the and to offer of his evidence own. findings adequate meaningful appeal And he there must to malee (Emphasis that is supplied.) allowed." Proposed Michigan See Einal Draft of Revised Criminal Code 7040(1) (b) proposal require for proof which would “knowingly that defendant negligence.”' acted or with criminal 9 Guilty knowledge necessarily or criminal intent is not an element prohibitum. of a crime malum Defendant does not assert it is an contributing element of minor of a and does protected by not claim is testimony he Diane’s him she told she was v. Owens. Opinion by Dissenting Levin, J. (155 ing standard enunciated sensible so, Crary p 265): NE2d, deprived liberty life, or “No defendant just might pos- doing
property something which sibly sometime, somewhere to some be- lead child’s delinquent. Possibility give way coming must comparative certainty. The delin- if absolute prevent trying quency fairly the law is must be reasonably certain result of the imminent, a reasonably complained of, a certain sure befall act way time. That seems to be child a reasonable Ap- applying this statute. the courts have been they single parently or have held that act even likely apt merely course of action which liable to given child’s act of delin- lead to a overt quency too a causative factor warrant remote *14 liberty. depriving Unless the a citizen of his causal delinquent act be reason- be clear connection judges ably follow, refuse be to the to convinced sure complained beyond doubt that the act a reasonable delinquency of the child.” cause’ the of ‘tends to “encourage, phrase toward, contribute In the key is the word “en- cause,” to cause or continue courage.” phrase interpreted re- that is to Unless prompting, quire could be con- one some element bring to an not calculated the act on basis victed delinquency. Providing shelter for a child’s about missing home”, itself, from is a child “while she any act or tend contribute contribute does not in statute. described Accordingly, to harbor Diane it not a crime was missing home, defend- while she charge should be reversed. of that ant’s conviction interpreted penal phrase to mean is If' code this may act con be based conviction child’s to cause a delin or causes or tends tributes range quency, outside the a whole conduct then proscribed. It to me is seems of the statute intent Dissenting Levin, inquiry the correct is whether the defendant’s ac adapted tions are pected, particular quency. or calculated and should be ex ordinary in the events, course cause alleged child10to commit the act of delin might Diane told defendant she leave home. arrange place The defendant stated he could stay her should she decide to so. do The record is unclear whether the defendant’s statement was response specific inquiry volunteered or for inwas to a help by way, Diane. Either the statement was an at most offer of assistance should be assistance requested. Furthermore, there no evidence defendant recommended that Diane leave home. On us, the record before been would trier of fact not have justified concluding that the defendant en- couraged home, Diane to leave had that been the charge.
IV. arguable using It is that in the word “harbor” prosecution in the and warrant charged concealing the defendant with Diane from parents. ambiguity her Whatever there in be should resolved in the defendant’s principle favor, on the stated v. Ander- supra. customary son, The more definition of har- persons harboring bor, as in the used sense rather ships, “any place refuge” than of shelter or or “to *15 television, movies, magazines qihonograph The and record com- panies, together aspects culture, in with other our a sense contrib- delinquency development ute the as well as constructive of all persons opportunities cities, under or over in 17. The lure of our opportunities public media, including with the communication phonograph companies, record does “tend” to awaken ambitions whieh encourage young people “tend” to such as Diane to leave home. message might home, Their is to all directed who want leave and to those who have never thought. Surely harbored such a all those responsible for such criminally inducements are not liable if in- an yields temptation. dividual under 17 to sueh People 48? v. Owens. Dissenting Levin, refuge After those defi “offer to.” to”; give shelter conceal; hide.”11 “to comes nitions charged left in doubt crime should be with One thing charge. It is one the substance the about quite providing charged shelter; it is with to be runaway concealing charged a with be another to charge people an individual If the desire child. runaway they concealing child, should do so a with clearly from doubt.12 words free in
Y. loosely statutory definition The necessary, claimed this is It has been drawn. impossible ways being to enumerate all in which it Crary, corrupted. supra. v. can State children be declaring legislation behavior criminal Nevertheless, “plain unambiguous that ‘he who be so and must understand whether his con read, and runs’ provisions.” v. in of its violation duct 204 Mich Ellis statutory grounds declaring
Among the juvenile delinquent “repeatedly he are that child Dictionary English Language. Tlie House Random See Dictionary first, Similarly, Third New International lists Webster’s refuge,” clandestinely give shelter or and second “to receive “to conceal.” prosecutor no The offered evidence that defendant concealed parents. proof discouraged from her There was no he Diane Diane parents prevented communicating her or otherwise with them from from learning her whereabouts. argues prosecutor telephoned the defendant should have The parents That, indeed, whereabouts. would Diane’s her have been thing However, for him to have done. the correct statute does knowing runaway’s act for one not make it criminal location to parents. this information child’s Further- fail to transmit charged more, failing telephone defendant was not her concealing parents, her from parents, or with whereabouts her conspiring parents, her with her to conceal whereabouts her concealment with or with keeping her the motel in sense of either liberty. judge’s finding her trial or restraint of ant that the defend- “kept” light her motel must read in the evidence. *16 13 in Mío Apr
488 Dissenting i;y Opinion Levin, J. an is leading immoral persons” associates with hex- liis or “habitually idles away “immoral life” recently of appeals York court time.” The New lan- loose embracive, spoke overly of the danger the enforc- too wide discretion to guage allowing a New authority, -hi unconstitutional ing- declaring “to person it unlawful for any York law making * * * any street with encumber or obstruct : article or whatsoever.” thing lan “Where statute couched such broad subject applica it is guage discriminatory tion, resulting the exercise infringement freedom sought NY2d far benefit speech outweighs public 21 People
to be achieved.” v. Katz 845, 847, 839) NE (233 135 2d 286 NYS2d (Emphasis supplied.) of our portion making statute it crime with “immoral”
contribute to child’s association life or habitual “idleness” persons, to his “immoral” discriminatory application. also subject In a States v. Rob el decision, recent United L 2d (88 419, 425, 258 Ct 19 Ed (1967), 389 US S Supreme spoke the United States Court 515), * * * of “the fatal defect of overbreadth [in employment both for association barring] may for association which may be proscribed with First Amend consistently not proscribed ment rights.13 enjoys
Even
a minor Diane
constitutional
not
be denied
association.14 She
right
at
either
aimed
by loosely-drawn legislation
right
prevent
tutional
2d
“to
a statute
tesans and
527).
uplift
In
Compare In re Gault
male
Watertown v.
right
forbidding male
arid ameliorate
prostitutes” was held invalid as violative of the
persons
of association.
(e.g., ministers, physicians)
Christnacht
(1967), 387 US
the condition of fallen women.”
persons
Any
to associate
other
rule,
guide ascertaining the individual in what duty only doing it is his avoid, acts violence not requirement to the constitutional the ascer guilt tainable standard which all citizens are guided legislative to be fixed branch government equal protection but also to the process against safeguarding due discrimin clauses ation.”20 public tranquility, provoke (p 211) (Emphasis or alarm or others.”
supplied.)
City
See, also,
(1967),
opinion in
Detroit
Bowden
this Court’s
v.
App
6 Mich
19
193)
(1950),
(223
State Musser
v.
118
537
P2d
on remand
Utah
562);
(1948),
(68
Musser
Utah
92 L Ed
v.
Although most of the cases which have considered
contributing statutes have sustained their constitu
tionality (see
20),
footnote
there is reason to believe
closely
such statutes will be more
scrutinized in the
Gallegos (Wyo, 1963),
future.21 In State v.
384 P2d
unconstitutionally
court struck down as
vague
portion
Wyoming
contributing
making
statute
encourage,
it unlawful “to cause,
aid
endangering
or contribute to the
of the child’s health,
welfare or morals.” The court sustained the claim
(p 968)
that the statute
“furnishes no standard as
endangering
to what the
of a child’s health, welfare
or morals is, and hence it leaves decision to arbi
trary judgment,
caprice”, stating
whim and
that it
*
* *
“utterly impossible
just
to know
what
942),
sustaining broadly
P2d
phrased contributing
statutes.
See
(Fla, 1960),
State
490;
Meyers
v. Barone
124 So 2d
United States v.
(Alaska, 1956),
Supp 1;
143 F
State v.
(1954),
Montalbo
33 NJ
Super
(110
572)
McKinley
462
;
(1949),
A2d
State v.
NM53
106
(202
People
964);
P2d
(52
v. Friedrich
385 Ill 175
NE
120),
uphold contributing
2d
statutes
somewhat
like our Mich
igan
statute.
De
(170
v.
Leon
35 Cal
Cf.
173)
(upholding
contributing
P
statute, yet
placing limitations
upon
scope).
its
Contributing
Delinquency,
See
St
L
59;
Louis Univ
J
Amsterdam, Federal Constitutional Restrictions
on the Punishment
Status,
of Crimes of
Crimes of
Obnoxiousness,
General
Crimes of
Displeasing
Officers,
Like,
Police
and the
L
Crim B
(1967);
*19
Lacey, Vagrancy and Other
Condition,
Crimes of Personal
66 Harv
(1953)
L
;
Rev 1203
Vagueness
and The Void for
in
Doctrine
Court,
Supreme
109 U of
L
(1960).
See,
Pa
Rev 67
also, Justice
Black’s dissent
in Edelman
v.
(73
acts statute.” “No one required peril life, at liberty speculate property meaning- as to the of penal statutes.” v. Lanzetta New Jersey (1939), 306 US (59 L S Ct 83 Ed 888).
YI. It may be answered if that even the referred-to portions relevant statute are void vague- ness, this would not justify conclusion that the sub- concerning- division desertion-of-one’s-home-without- sufficient-cause is also void. If the deserting-one’s- home subdivision is severable, the enforceability of that subdivision indeed might be sustained. if
However, even the valid subdivisions are sever- able, complaint and warrant here do specify or provision which subdivision thereof was invoked. It will be recalled that the statute lists at least 9 dif- acts of ferent its various subdivi- sions. from
Entirety apart and warrant’s failure to specify provision subdivision or thereof was invoked, here there is no assurance that the trial rested judge conviction on the constitution- valid subdivision on which the ally majority relies rather affirming conviction, defendant’s than on one of the constitutionally provisions. invalid trial The do not state the judge’s findings provision complained which he relied. conduct Diane “while she was (harboring missing home”) of which the trial the de- judge found (“he paid kept her rent and her at guilty fendant deemed motel”), could have been related association with immoral persons unconstitutional provisions as well as the consti- or habitual idleness deserting-one’s-home provision. tutional *20 r. Owens. 493 Dissenting Opinion by Levin, J. appears Although it to us from the evidence that might properly a subdivision which have been in may voked, and one which have been in the drawing draftsman’s mind when and concerning deserting-one’s- warrant, was the one charged home, the to have that Diane desert failure ed home her “without sufficient cause” leaves the very matter of the draftsman’s intent much in doubt. judge’s findings (see the trial foot of failure 7) provision note which state subdivision or there convicting of he relied on the defendant leaves people’s his decision indefinite. events, In all prove necessary a element crime failure under deserting-one’s-home subdivision {i.e., cause”) that left her home Diane “without sufficient precludes sustaining the defendant’s conviction even indulge if we in the surmise that in the draftsman charge judge tended to the trial convicted be of cause he found a violation due that subdivision. The process guaranteed by the Fourteenth Amend a ment denied one who is convicted of crime with proof ingredient of out an essential of the crime.22 under Prosecutions statutes such this should carefully be not of hos- circumscribed, because legislation, tility towards the but because of the 22 City (80 Thompson Ct v. Louisville 362 US S (88 654); 2d 4 L Ed Johnson v. Florida US 596 838). Thompson, L S 2d In the United Ct Ed States Court, Supreme previously quoted language reminiscent of that Arkansas, supra, 206) (p from Cole v. : observed upon “Just as not made ‘Conviction would be sheer denial process/ process of due so is it a violation of due convict Thompson, guilt.” punish man In without evidence of Ms the Court city any (p 305) had failed to found that “semblance of evidence from which of Louisville offer any person reasonably could give petitioner satisfactory infer could account of him- loafing ordinary loitering (in or self or that he was there sense words) of the the State of Florida without ‘the consent the owner controller’ cafe.” In the recent Johnson ease the Court concluded that proving its had failed sustain burden the the “ ‘wandering strolling’ ingredient of the crime” and reversed violating vagrancy defendant’s ground conviction Florida’s statute on the process. that a conviction without evidence denies due Dissenting Opinion Levin, J. danger ground are laid rules down
real that unless persons deprived of will their accused some rights. in this case indeed be The defendant leaving may be in Diane’s home His role scoundrel. much Her denials appears greater on the record. than any improprieties in the motel room frequent might believed. visits there not be on his *21 not convicted Nevertheless, of His conviction should defendant should be lodged against him. than the one other appeal un- not affirmed on be findings supported judge’s of fact. the trial less important legislation than can no more There against young designed protect legislation corrupt By now there must them. those who would experience with these statutes sufficient have been to enable those sound, tion. them to articulate who work with constitutionally legisla- valid workable, defendant could have been convicted Since provisions, unconstitutionally vague under the proof the constitution- a failure of under there was ally majority opin- on in the relied valid subdivision and dis- reverse, sentence, would vacate the ion, I charge the defendant.