State v. Tritt , 23 Utah 2d 365 ( 1970 )

CROCKETT, Chief Justice.

The defendant was found guilty in the Juvenile Court of Salt Lake County of the offense of contributing to the delinquency of a minor in that he knowingly provided said minor with prescriptions allowing him access to an excessive quantity of depressant and stimulant drugs consisting of amphetamines and barbiturates; and aided and encouraged the juvenile to violate Sec. 58-17-14.13, U.C.A.1953 by using a false name in procuring said drugs.

The basis upon which the defendant seeks reversal of the conviction and dismissal of the charge, or, in the alternative, a new trial, is that the State did not affirmatively prove his criminal intent by showing that he knew the individual was a juvenile and/or that he was using a false name to procure the drugs. In support of his arguments that the State failed to prove the necessary criminal intent, the defendant relies on Sec. 76-1-20, U.C.A. 1953:

In every crime or public offense there must exist a union or joint operation of act and intent, or criminal negligence.

The facts as shown by the record are that one Stephen C. Long, 17 years of age, went to the office of the defendant, who is an osteopathic physician. He told the defendant he was from San Francisco; that he had been in the service; had been working in San Francisco for some time; had been going to a doctor who had been “subscribing [sic] a drug to me,” and that he wanted the same drug. After Mr. Long had written out his name as “Thomas T. Dugan” and his age as 23, the defendant wrote and gave him a prescription. Thereafter Mr. Long made frequent visits to the defendant’s office and obtained prescriptions for these drugs which he had filled at various pharmacies. A Dr. James T. Weston testified that the quantities of drugs thus prescribed by the defendant for the juvenile were greatly in excess of any possible proper usage the latter could have made of them.

It is important to have in mind that the charge of which the defendant stands convicted is that of contributing to the delinquency of a minor in two ways: providing him with prescriptions for excessive quantities of the named harmful drugs; and also by aiding and encouraging him to use a false name in connection therewith; and that the conviction should be sustained if the evidence supports the findings beyond a reasonable doubt that he contributed to the delinquency of the minor in either or both of the ways stated.

The difficulty with the defendant’s position in urging the necessity of affirmatively showing a criminal intent, under 76-1-20 above quoted, is that he entirely ignores the final clause “or criminal negligence.” This concededly imports something more serious than the negligence upon which liability is predicated in civil wrongs. It connotes some blameworthy conduct which shows careless disregard for adherence to legal duty and for the rights and safety of others.¹

Except for the fact that he was a juvenile having turned 17 about four months previously, the record is not very revealing about the appearance of Stephen Long. In response to such a question the witness Keith Baxter replied: But it does appear that the defendant did not make any effort to determine whether Long was a juvenile, nor whether he was giving his true name and address in connection with requesting these numerous prescriptions. But he did know that the drugs were dangerous and that he was prescribing excessive quantities.

Upon our survey of the record in harmony with the traditional rule of review which requires us to consider all of the facts and circumstances shown by the evidence, and the inferences that could reasonable be derived therefrom, in the light favorable to the judgment of the trial court² there is a basis for finding beyond reasonable doubt that the defendant was guilty of contributing to the delinquency of a minor.

“Tall, thin, fairly young fellow. Pimples on his face.”

It is deemed appropriate to make certain observations in regard to the dissent: First, the defendant did not raise the issue as to the validity of the statute, either in the court below or in this court; and therefore we can see no justification for dealing with that issue.³ Second, and closely related to the above is that, in conformity with the principle of judicial restraint, the court should not invalidate a statute if the case can be decided on other grounds.⁴

The foregoing seem to present insuperable procedural obstacles to the attack on the statute in this case. However, we further observe that even if those obstacles did not exist, and we could properly consider the merits of the question, we could not agree that the statute is invalid. The foundational rules here are that all presumptions favor validity of the statute; and that it will not be declared unconstitutional unless found to be so beyond a reasonable doubt.⁵ The terms "delinquency” and “contributing to the delinquency” as applied to minors has for many decades had such widespread usage as to give clear and understandable meaning⁶ that it denotes actions that will aid, encourage or involve children in conduct which is contrary to law, or which is so contrary to the generally accepted standards of decency and morality that its result will be substantially harmful to the mental, moral or physical well-being of the child.⁷ This connotation of those terms is sufficiently well known that persons of ordinary intelligence and judgment who desire to do so would have no difficulty in governing their conduct by the statute.⁸ This has particular application to the defendant’s conduct and points up another reason why the reaching out and impairing the statute in question would be ill advised in this case.

Even if the defendant had complained about the vagueness of the statute, he is in no position to attack it on that ground. It is generally held that even if a statute may be unconstitutional as applied to certain individuals or situations it will not be stricken down at the behest of one who is not adversely affected by the defect.⁹ Assuming that there may be conduct of some nature which would fall in doubtful areas as to whether it constitutes contributing to the delinquency of a minor, it is unnecessary for us to be here concerned with conduct in such twilight zones because the charge against the defendant is not of that character. The conduct here charged would amount to the commission of a crime, which by any definition whatsoever, constitutes contributing to the delinquency of a minor.

For each of the foregoing reasons sep-rately, and most certainly for all of them together, the tearing down of the statute in question would be improper.

The conviction is affirmed.

MARCELLUS K. SNOW, District Judge, concurs.

1 . See State v. Lingman, 97 Utah 180, 91 P.2d 457 (1939). See also: State v. McMahan, 57 Idaho 240, 62 P.2d 156 (1937); Goodell v. People, 137 Colo. 507, 327 P.2d 279; Chandler v. State, 79 Okl. Cr. 323, 146 P.2d 598.

2 . See State v. Knepper, 18 Utah 2d 215, 418 P.2d 780; People v. LaRocca, 68 Cal.App.2d 652, 157 P.2d 378.

3 . See Hamilton v. Salt Lake County Sewerage Imp. Dist. No. 1, 15 Utah 2d 216, 390 P.2d 235, and authorities therein cited. It is appreciated that there are some exceptions, not material here. See 5 Am. Jur.2d at 311, and cases therein cited.

4 . See Salt Lake City v. Perkins, 9 Utah 2d 317, 343 P.2d 1106; and see statement 5 Am.Jur.2d at 311.

5 . Newcomb v. Ogden City, etc., 121 Utah 503, 243 P.2d 941.

6 . See 43 C.J.S. Infants § 98 at p. 229; and 31 Am.Jur. 313.

7 . See Commonwealth v. Stroik, 175 Pa.Super. 10, 102 A.2d 239, 241; Brockmueller v. State, 86 Ariz. 82, 340 P.2d 992; State v. Friedlander, 141 Wash. 1, 250 P. 453 (1926).

8 . See State v. Packard, 122 Utah 369, 250 P.2d 561, and authorities therein cited.

9 . See State v. Barlow, 107 Utah 292, 153 P.2d 647 (1944), and State ex rel. Johnson v. Alexander, 87 Utah 376, 49 P.2d 408 (1935).