Summary
interpreting former R.C. 2151.02 and holding that a finding or an adjudication in a separate proceeding that a juvenile was a delinquent child was not necessary before a prosecution for contributing to the delinquency of the juvenile could be maintained and that the contents of the affidavit filed against the defendant and the evidence presented at trial showed that the juvenile was a delinquent child
Summary of this case from In re HamblinOpinion
No. 33671
Decided April 28, 1954.
Criminal law — Contributing to delinquency of minor — Separate determination that minor delinquent — Not condition precedent to prosecution, when — Minor shown to be delinquent — Conviction not disturbed on appeal, when.
1. A conviction for the offense of contributing to the delinquency of a minor will not be disturbed on appeal, where competent evidence was introduced at the trial showing that the defendant, a married man, 29 years of age and with a family, persistently associated with a 16-year old girl in such a way as to disrupt her life and morals.
2. A finding or adjudication in a separate proceeding that a minor is delinquent is not a condition precedent to the maintenance of a prosecution for contributing to the delinquency of the minor, where the affidavit filed against the one charged with contributing to the delinquency and the evidence on his trial shows that the minor is delinquent.
APPEAL from the Court of Appeals for Lucas county.
On November 24, 1951, Elroy Meng, father of Joan Meng, aged 17 years, filed an affidavit in the Juvenile Court of Ottawa County, charging that on or about January 5, 1951, one Frank Todaro caused, encouraged and contributed toward the delinquency of Joan, in that, as a married man, he associated with her and so deported himself as to injure and endanger her morals and health, and that he caused her to become pregnant and caused her to resist the reasonable control and guidance of her parents. At the same time, Elroy Meng filed an affidavit against his daughter Joan, charging her with being a delinquent child. There has never been a hearing on such charge.
Pursuant to an order for a change of venue, the matter came on for trial before the Court of Common Pleas of Lucas County, Domestic Relations Division, Juvenile Branch, on February 9, 1953, without the intervention of a jury.
The defendant, Frank Todaro, was found guilty and was sentenced to one year's imprisonment in jail and to a fine of $1,000.
On an appeal to the Court of Appeals that court affirmed the judgment below, and the cause comes before this court as of right, motions to certify the record and to dismiss the appeal as of right having been overruled.
Mr. Myron Rosentreter, prosecuting attorney, and Mr. Donald S. Wargowsky, for appellee.
Mr. George S. Bradley, for appellant.
The principal errors of which defendant complains are that he could not be found guilty of contributing to the delinquency of a minor without a prior adjudication that the minor herself was delinquent, and that there was insufficient competent evidence to establish his guilt.
We have read the bill of exceptions throughout and find competent evidence showing that in the early part of January 1951, when Joan was 16 years old, she became acquainted with the defendant, who was then 29 years of age, married and with a family; that thereafter Joan and he kept company regularly and frequently; that he was a constant and devoted suitor with ample opportunity to exercise his affections to the fullest extent; that Joan had no male companions other than the defendant; that after Joan's parents discovered the true situation they remonstrated with the defendant and ordered him to stop associating with Joan; that a short time afterward defendant removed Joan from the Oak Harbor High School, where she was a student, and transported her and his younger brother to an adjoining state where Joan and the younger brother were married; that Joan was pregnant at the time; that, by the admissions, failure to deny, and actions of the defendant, the clear inference is present that he was responsible for such pregnancy; that Joan subsequently went to Toledo and lived in a trailer which belonged to the defendant's wife and at that time was in close contact with the defendant; that in late January 1952 Joan went to the home of her married sister and resided there pending the hearing and disposal of the delinquency charge made against her by her father; and that before such hearing was had she departed with the defendant and sometime later gave birth to a child in Baltimore, Maryland.
There is other evidence of an incriminating nature against defendant, but enough has been detailed to present a partial picture of a sordid mess.
Defendant's trial was before an experienced jurist who was perfectly capable of separating competent evidence from that which was incompetent. The bill of exceptions is replete with more than enough competent evidence to sustain the finding of guilty against the defendant.
There is no doubt that Joan was a delinquent child within the purview of the terms of Section 1639-2, General Code (Section 2151.02, Revised Code), and that defendant contributed to such delinquency within the meaning of Section 1639-45, General Code (Section 2151.41, Revised Code).
A finding or an adjudication in a separate proceeding that Joan was a delinquent child was not necessary before the prosecution for contributing to the delinquency of a minor could be maintained. The contents of the affidavit filed against the defendant and the evidence on the trial show that Joan was a delinquent child. And, even though January 5, 1951, is the date mentioned in the affidavit as being the time when the contribution to the minor's delinquency occurred, no objection was made thereto prior to the trial and no objection was registered to the introduction of evidence covering later periods of time. Therefore, no amendment of the affidavit to include other and later dates was essential.
In Section 13449-5, General Code (Section 2945.83, Revised Code), it is provided that a judgment of conviction shall not be reversed unless it affirmatively appears from the record that the defendant was prejudiced and prevented from having a fair trial. We are convinced there was no miscarriage of justice in the instant case. The judgment of the Court of Appeals affirming the judgment of the trial court is affirmed.
Judgment affirmed.
WEYGANDT, C.J., HART and LAMNECK, JJ., concur.