State v. Eisen ( 1909 )

Opinion by

Mr. Commissioner King.

Defendant was tried and convicted on an information filed by the district attorney, charging him, jointly with two others, with having committed an act contributing, and manifestly tending to contribute, to the delinquency of a minor child. From a judgment sentencing him to pay a fine of $500, he appeals.

The only point presented relates to the sufficiency of the facts charged to constitute a crime. The information, omitting the formal parts, reads:

“William Eisen, Ernest Hayman, and David Smith, on the first day of October, 1907, in the county of Multnomah and State of Oregon, then and there being, did then and there willfully and unlawfully commit an act which encouraged, caused and contributed to the delinquency of one Jennie Sigher, a minor child of the age of seventeen years, and did commit an act which did manifestly tend to cause the said Jennie Sigher to become a delinquent child in a way and manner as follows, to-wit: She, the said Jennie Sigher, being on the first day of October, 1907,' in the county of Multnomah and State of Oregon, pregnant, the said William Eisen, Ernest Hayman and David Smith then and there willfully and unlawfully used and employed in and upon the body and womb of the said Jennie Sigher, certain instruments and other means, a more particular description of which said instruments and other means is to the district attorney unknown, and did willfully administer certain drugs, medicines and substances to her, the said Jennie Sigher, a more particular description of which is to the district attorney unknown, with the intent of them, the said William Eisen, Ernest Hayman and David Smith then and there to produce and procure an abortion and miscarriage of her, the said Jennie Sigher, and to destroy the foetus wherewith the said Jennie Sigher was then and there pregnant as aforesaid, and it not being then and there necessary to use or employ said instruments, means, drugs, medicines or substances to destroy the said foetus to preserve the life of her, the said Jennie Sigher, and in consequence thereof, the said Jennie Sigher was then and there prematurely delivered of said foetus with which she was so pregnant as aforesaid, contrary to the statutes in such cases made and provided, and against the peace and dignity of the State of Oregon.”

The information does not disclose that the minor there named has in fact become a delinquent child, and, so far as appears therein, she was a married woman at the time she became pregnant. The only acts stated in the information having the appearance of being in violation of any law consisted in the administering of drugs to, ■ and the use of instruments upon, Jennie Sigher, by means of which a miscarriage was produced.

1. It is obviously not the purpose of the juvenile act to provide either additional methods of prosecuting, or cumulative penalties for crimes, for the prosecution and punishment of which provision has otherwise been made by the Code. If the acts are sufficient to bring the charge within Section 1748 of the Code, the crime would be manslaughter, and not contribution to a child’s delinquency; and no attempt is made to inform against the defendant on that charge, nor does the information state sufficient facts for that purpose.

2. As held in State v. Dunn, 53 Or. 304 (99 Pac. 278), the general purpose of the juvenile court act is for the common welfare and good of neglected and delinquent children, as there defined, to accomplish which it is intended by the act that the State occupy, with reference to such children, the position of guardian, and be placed in the same position, so far as practicable in this respect, as that of a parent, with a view, not to their punishment, but to their reformation; and, successfully to carry out the purpose of the law in this respect, a broad and liberal construction is provided for in the act. Laws 1907, p. 47, chap. 34, § 18.

3. But when it comes to the prosecution of adults charged with having contributed to such delinquency or dependency, the State is not assuming to act in the capacity of a guardian, or in the same relation, or for the same purpose in which it acts for a minor; and, as to violators of this act by adults, they are to be tried as are the transgressors of any other penal statute. Mill v. Brown, 31 Utah, 473, 482 (88 Pac. 609: 120 Am. St. Rep. 935). The only provision of the juvenile act having any bearing upon the case under consideration is that part providing, in effect, that, if any person shall do any act manifestly tending to cause a child to become delinquent, such person shall be deemed guilty of a misdemeanor. Laws 1907, pp. 39, 121; State v. Dunn, 53 Or. 304 (99 Pac. 278).

4. So far as disclosed by the information, Jennie Sigher may have been legally married. It appears from the facts there stated that at the time of the acts complained of she was 17 years of age, hence capable of contracting marriage; and from this it would follow that, if married with the consent of her parents, the marriage was valid, although she was under 18 years of age. Sections 5216, 5228, B. & C. Comp. A child is defined in the Century Dictionary as, “Specifically, a very young person; one not old enough to dispense with maternal aid and care.” In reference to age, the juvenile act provides, “This act shall apply only to a child under the age of 18 years.” Laws 1907, p. 39. Now, while Jennie Sigher was under 18 years at the time of the acts complained of, she was not, if married, a child or person who was “not old enough to dispense with the parental care”; for, since she was old enough, under the statute to contract marriage, and, with the consent of her parents, was legally married, she became a married woman, and in no sense such a person as was intended to come within the provisions of the act. Since every presumption must be resolved in favor of the defendant, it not appearing that she was unmarried at the time of the alleged abortion, it cannot, under any possible construction, be held, within the provisions of the juvenile statute, that the acts charged contributed or tended to contribute to the delinquency of a minor child.

For the reasons stated, the judgment of the court below should be reversed, and one there entered dismissing the information. Reversed.