State v. HarmonState v. Harmon
- Reporters:
- , ,
- Before:
- Bossman
Lead Opinion
Defendant was indicted for the crime of contributing to the delinquency of a minor in violation of OBS 167.210. The indictment specifically charged the defendant with the act of ‘sexual intercourse with an unmarried female child under the age of 18 years. A demurrer to the indictment was interposed on the ground that the statute under which defendant was indicted (OBS 167.210) is unconstitutional in that it denies defendant the equal protection of the laws under both the United States and Oregon Constitutions. U. S. Const, amend. XIY, § 1;
The statute under which defendant was indicted reads as follows:
“167.210 Causing or contributing to delinquency of child. When a child is a delinquent child as defined by any statute of this state, any person responsible for, or by any act encouraging, causing or contributing to the delinquency of such child, or any person who by threats, command or persuasion, endeavors to induce any child to perform any act or follow any course of conduct which would cause it to become a delinquent child, or any person who does any act which manifestly tends to cause any child to become a delinquent child, shall be punished upon conviction by a fine of not more than $1,000, or by imprisonment in the county jail for *573a period not exceeding one year, or both, or by imprisonment in the penitentiary for a period not exceeding five years.”
A companion statute defining the crime of causing a child to become a dependent child is OES 167.215 which reads as follows:
“167.215 Causing child to become or remain dependent. Any person who wilfully does any act which causes or tends to cause any child under the age of 18 years to become a dependent child, as defined by any statute of this state, or to live and conduct himself so as to be or remain a dependent child, shall be punished upon conviction by a fine of not more than $1,000, or by imprisonment in the county jail for a period not exceeding one year, or both.”
The penalty prescribed for the violation of OES 167.210 is “a fine of not more than $1,000, or by imprisonment in the county jail for a period not exceeding one year, or both, or by imprisonment in the penitentiary for a period not exceeding five years.” A violation of this statute is a felony, at least if conviction is followed by a sentence of imprisonment in the penitentiary. OES 161.030 (2). The penalty for the violation of OES 167.215 is “a fine of not more than $1,000, or by imprisonment in the county jail for a period not exceeding one year, or both.” A violation of this statute is a misdemeanor only. OES 161.030 (3).
It will be noted that in each case the statute is made applicable to a delinquent or dependent child, as the case may be, “as defined by any statute of this state.” Prior to the enactment of chapter 432 of Oregon Laws 1959, the definition of a delinquent child and *574a dependent child were found in
“419.502 Definitions. (1) ‘Delinquent child’ includes any child under the age of 18 years who violates any law of this state or any city or village ordinance, or who is incorrigible, or who is a persistent truant from school, or who associates with criminals or reputed criminals, or vicious or immoral persons, or who is growing up in idleness or crime, or who frequents, visits, or is found in any disorderly house, bawdy house or house of ill fame, or any house or place where fornication is enacted, or in any saloon, barroom or drinking shop or place, or any place where spirituous liquors, or wine, or intoxicating or malt liquors are sold at retail, exchanged or given away, or who patronizes, frequents, visits or is found in any gaming house, or in any place where any gaming device is or shall be operated.
“(2) ‘Child dependency,’ ‘dependent children’ and ‘neglected children,’ unless otherwise required by context, have the meaning given those terms byORS 419.102. ”①
*575When the new juvenile code was adopted in 1959
“419.476 Children within jurisdiction of juvenile court. (1) The juvenile court has exclusive original jurisdiction in any case involving a person who is under 18 years of age and:
“(a) Who has committed an act which is a violation, or which if done by an adult would constitute a violation of a law or ordinance of the United States or a state, county or city; or
“(b) Who is beyond the control of his parents or other person having his custody; or
“(c) Whose behavior or condition is such as to endanger his own welfare or the welfare of others; or
“(d) Whose parents or other person having his custody have abandoned him, failed to provide him with the support or education required by law, subjected him to cruelty or depravity or failed to provide him with the care, guidance and protection necessary for his physical, mental or emotional well-being; or
“(e) Who has run away from his home.
“(2) The provisions of subsection (1) of this section do not prevent a court of competent jurisdiction from entertaining a civil action or suit, involving a child.”
At the same session of the legislature
“419.101 Definitions forORS 419.102 to 419.140. As used inORS 419.102 to 419.140, unless the context requires otherwise:
“(1) ‘Agency’ includes agency, society or institution.
“(2) ‘Child delinquency,’ ‘delinquent child,’ ‘child dependency’ and ‘dependent child’ mean a person under 18 years of age whose conduct or condition is such as to fall within the provisions of *576paragraphs (a) to (e) of subsection (1) ofORS 419.476. ”
Thus the reference in
The lower court sustained the demurrer to the indictment on the ground that because
State v. Pirkey, supra, would be controlling in the present case if the assumption was well taken that
Apparently the trial judge felt that since
An indirect aid in construing
We are of the opinion that OKS 419.101 was not intended to abolish the distinction between a delinquent and a dependent child. We interpret OKS 419.101 to mean that the definitions of a dependent child and of a delinquent child are to be found by referring to the appropriate paragraph or paragraphs of OKS 419.476.
We recognize that the new juvenile code (Oregon Laws 1959, ch 432) of which OKS 419.101 and 419.476 are a part, was drafted with the idea of abolishing the distinction for certain purposes. Under the previous •statutes the procedure in dealing with juveniles was unnecessarily complicated as a result of the statutory distinction between delinquent and dependent children. The difficulty is described by Judge Ralph M. Holman, who was a member of the legislative interim committee which drafted the code, in an article entitled ^Oregon’s New Juvenile Code, 39 Or L Rev 305, 306 (1960). He said:
“The old code classified children subject to juvenile-court jurisdiction as either ‘dependent’ or ‘delinquent.’ ‘Dependent’ children were those in need of the help of governmental authority; ‘delinquent’ children generally meant those who had transgressed against the law or who were beyond parental control. In actual practice, there was no clear line of demarcation between the two. Many were both. Some who were brought in ás delinquents were found to be in fact dependent, and *579vice versa. Under the old procedure, if a child alleged to he dependent was found to he delinquent, a new proceeding had to be commenced, and, of course, the converse was true. The new code abolishes the distinction and the attendant procedural confusion. While the grounds for bringing the child within the power of the court must be stated in the petition, he is termed neither dependent nor delinquent. As a result, the court can, upon the filing of a petition, make a disposition without regard to a technical distinction between ‘dependency’ or ‘delinquency.’ ”
The new juvenile code did not abolish the legal distinction between dependent and delinquent children for all purposes; it merely made the distinction of no consequence procedurally in handling the cases that came before the juvenile court.
We hold that OES 167.210 is constitutional and that the demurrer to the indictment should have been overruled.
The judgment is reversed and the cause is remanded for further proceedings in conformity with this opinion.
Notes
419.102 “Child dependency” defined; persons classed as dependent and neglected children; duty of courts and officers. (1) “Child dependency” is defined as follows:
(a) Persons of either sex under the age of 18 years, who for any reason are destitute, homeless, or abandoned; or are dependent upon the public for support; or have not parental care or guardianship; or who are found begging or gathering alms; or are found living with any vicious or disreputable persons; or whose home by reason of neglect, cruelty, drunkenness, or depravity on the part of parents, guardians, or other persons in whose care they may be is an unfit place for such children; any persons under 14 years of age who are found peddling or selling any article, except as permitted under special child labor regulations; or persons under 14 years of age who are found playing musical instruments upon the streets to induce the giving of gratuities, or who accompany or are used in aid of adult persons in so doing, shall be classed as dependent children.
(b) Persons of either sex trader 18 years of age whose parents or guardians neglect or willfully fail to provide for them; or allow them to have vicious associates, or to visit vicious places; or fail to exercise proper parental discipline and control over them are classed as neglected children.
(2) Courts and other public officers shall labor with the parents or guardians of such children, and if possible induce them to perform their neglected duties. Subsequent to suitable efforts to compel the parents or guardians to rectify said neglect, and in event of the failure of such efforts, neglected children shall be classed as dependents.
Dissenting Opinion
dissenting.
No statute of this state indicates whether a defendant who it is claimed maltreated a child should be indicted for the crime of contributing to the delinquency of the minor (OES 167.210) or should be prosecuted for causing the child to become a dependent (OES 167.215). In the absence of legislation upon that subject a grand jury which is about to return an indictment against an accused would have no direction from the legislature which would enable it to determine whether the defendant’s wrongful act should *580be treated as (1) the crime of contributing to the delinquency of a child and thus subject him possibly to a term in the penitentiary or (2) the crime of causing the child’s dependency and thereby subject him to a penalty for a misdemeanor. Since courts and grand juries have no legislative powers they can not complete this incomplete statute so as to render it workable. It is true that parts of the statute which I will presently cite describe wrongful conduct which many would recognize as capable of rendering a child delinquent and other wrongful conduct which it is commonly assumed may cause a child to become a dependent, but those parts do not indicate that conduct of the one kind should be treated as tending to the child’s delinquency and conduct of the other kind as causing the child’s dependency. Further, and this is also important, our statute lists other conduct difficult of classification. In any event, reasonable individuals could classify it variously. Since the choice is legislative in nature and not judicial, the absence of a statute signifying the legislature’s choice renders our law incomplete. The omission is accompanied with grave consequences. One who is found guilty of contributing to the delinquency of a minor may receive a penalty of as much as five years in the penitentiary whereas if the grand jury, based upon the same action detrimental to the minor, had returned an indictment for causing the child to become a dependent, no penitentiary sentence could have been imposed. Since our law fails to specify the conduct which should be deemed by a grand jury as rendering a minor a delinquent and that which should be treated as rendering him a dependent, neither a court nor a grand jury can know whether an accused should be indicted for the one crime or for the other. State v. Pirkey, 203 Or 697, *581281 P2d 698, in speaking of a similar situation, declared :
* * So far.as the statute is concerned, the same identical act, under the same circumstances, may constitute a felonious crime when committed by one person, and a misdemeanor when committed by another. * * *”
That act was declared violative of Article I, § 20, Oregon Constitution, and of the Fourteenth Amendment of the United States Constitution. The act was more complete than the one now before us. The present act is also violative of Oregon Constitution, Article IV, § 21.
Oregon Laws 1959, chapter 432, page 719, gave to us the comprehensive act known as the juvenile code. Section 66, page 739, of that act (now OES 419.101) reads as follows:
“As used in OES 419.105 to 419.140, unless the context requires otherwise:
“(1) ‘Child delinquency/ ‘delinquent child/ ‘child dependency’ and ‘dependent child’ means a person under 18 years of age whose conduct or condition is such as to fall within the provisions of subsections (1) to (5) of section 2 of this 1959 Act.”
Section 2 of the act, page 720, now OES 419.476, reads as follows:
‘‘The juvenile court has exclusive original jurisdiction in any case involving a person who is under 18 years of age and:
“(1) Who has committed an act which is a violation, or which if done by an adult would constitute a violation, of a law or ordinance of the United States or a state, county or city; or
“(2) WTio is beyond the control of his parents or other person having his custody; or
*582“(3) Whose behavior or condition is such as to endanger his own welfare or the welfare of others; or
“(4) Whose parents or other person having his custody have abandoned him, failed to provide him with the support or education required by law, subjected him to cruelty or depravity or failed to provide him with the care, guidance and protection necessary for his physical, mental or emotional well-being; or
“(5) Who has run away from Ms home.”
Section 17 of the 1959 act (page 725 Oregon Laws 1959), codified as
“A child found to be witMn the jurisdiction of the court as provided in subsection (1) of ORS 419,476, shall be made a ward of the court. In connection with such wardsMp, the court may:”
At that point the section enumerates the various measures which the court may employ for the good of the cMld.
“(2) ‘Child delinquency/ ‘delinquent child/ ‘child dependency’ and ‘dependent child’ mean a person under 18 years of age whose conduct or condition is such as to fall within the provisions of paragraphs (a) to (e) of subsection (1) ofORS 419.476. ”
The appropriate part of
The above statutes seemingly present no difficulties when the court is concerned only with the rehabilitation of the child; but trouble arises when a grand jury or a court is concerned with an adult who is accused of having maltreated a child. The present sections of our laws which create the crimes of contributing to the delinquency of a child (
Our present statutes render it impossible for a court to say whether a child “who has run away from his home” [see
Let’s suppose that both defendants in the conjectured cases were found guilty and appealed to this *585court. How could this court determine from anything that the legislature has enacted that the grand jury which indicted the one for contributing to the delinquency of a minor caught the legislative conception of the crime more accurately or less accurately than the other grand jury which indicted for causing dependency. In short, how is a court or a grand jury to discern, from anything that the legislature has written, whether a defendant who induces a child to run away from home subjects himself to a potential penitentiary sentence and that therefore he should be indicted not for causing dependency but for the crime of contributing to delinquency?
It is clear that after the repeal of OHS 419.502 and OKS 419.102 the circuit court can not determine from anything that the legislature has enacted that a child who is mentioned in an indictment which charges the defendant with inducing the child to take any of the courses enumerated in OKS 419.476 is a delinquent or a dependent. Even with the help of a statutory definition a given set of circumstances sometimes presents difficulties to the court in determining whether a child is a dependent or something else. An illustration is State v. Visser, 249 Iowa 768, 88 NW2d 925. In that case the complaint charged that two sisters who were 16 and 11 years of age and who lived with their widowed mother were dependents. According to the decision,
“There is no specific showing in the record that the mother of these two girls has physically abused them * * * nor does it appear that they have lacked suitable food and clothing.”
Nevertheless, the court held that the children were dependents. It emphasized the unwholesome moral condition under which they lived and found that the *586statute conferred upon the court discretion in the application of the definition.
We see from the foregoing that
Under our act as it is now written, with the definitions previously given by
The majority, unless I am mistaken, recognize that none of our laws designate the conduct of an adult which shall be deemed contributory to a child’s delinquency and that which shall be regarded as causing its dependency. In the face of a situation of that character no help can be obtained from
In State v. Brantley, 201 Or 637, 271 P2d 668, the circuit court, in recognizing that the statute which the grand jury had invoked against the defendant was incomplete, sustained a demurrer to the indictment. This court affirmed, and in so doing said:
“ ‘A valid criminal law must definitely show with reasonable certainty what acts or omissions the lawmaking body intended to prohibit and punish’ : 1 Cyclopedia of Criminal Law, Brill, § 62.”
I dissent.