State v. Simants ( 1968 )

Newton, J.

In this action, defendants were charged with contributing to the delinquency of a 14-year-old female child. On conviction in the county court, defendants appealed to the district court. Demurrer was filed to the complaint on the ground that section 28-477, R. S. Supp., 1965, is unconstitutional in that it is “vague and uncertain” and constitutes an unlawful delegation of legislative power. The demurrer was sustained on both counts, the complaint dismissed, and appeal taken to this court by the county attorney.

Section 28-477, R. S. Supp., 1965, provides in part: “Any person who by any act, encourages, causes, or contributes to the delinquency, neglect, or need for special supervision, of a child under eighteen years of age, so that such child becomes, or will tend to become, a delinquent or neglected child, or a child in need of special supervision as defined by section 43-201, shall be deemed guilty of a misdemeanor.” Section 43-201, R. S. Supp., 1965, referred to in the statute last-above cited defines the terms neglected child, delinquent child, and child in need of special supervision as follows: “* * * (3) Neglected child shall mean any child under the age of eighteen years (a) who is abandoned by his parent, guardian, or custodian; (b) who lacks proper parental care by reason of the fault or habits of his parent, guardian, or custodian; (c) whose parent, guardian, or custodian neglects or refuses to provide proper or necessary subsistence, education, or other care necessary for the health, morals, or well-being of such child; (d) whose parent, guardian, or custodian neglects or refuses to provide special care made necessary by the mental condition of the child; or (e) who is in a situation or engages in an occupation dangerous to life or limb or injurious to the health or morals of such child;

“(4) Delinquent child shall mean any child under the age of eighteen years who has violated any law of the state or any city or village ordinance;

“ (5) A child in need of special supervision shall mean any child under the age of eighteen years (a) who, by reason of being wayward or habitually disobedient, is uncontrolled by his parent, guardian, or custodian; (b) who is habitually truant from school or home; or (c) who deports himself so as to injure or endanger seriously the morals or health of himself or others; * *

Defendants contend that the phrase “Any person who by any act, encourages, causes, or contributes to the delinquency,” etc. (emphasis supplied) is so all inclusive as to render the statute so vague and indefinite that it must be held to violate the due process clauses contained in the Constitutions of the State of Nebraska and of the United States. Defendants state that under this statute, a minor could be prosecuted for contributing to the delinquency of another minor; and that it proscribes not only intentional acts directed to causing or contributing to the delinquency of a minor, but also acts not so intended. In this respect they refer primarily to examples set by adults on the theory that one who smokes, drinks alcoholic liquors, or engages in other activities of similar nature permissible for adults, but frowned upon for minors, could, when occurring in the presence of minors, set a bad example and thereby be said to encourage delinquency within the meaning of the statute.

Certainly one minor may contribute to the delinquency of another. Cannot a 17-year-old boy, as well as an adult, contribute to the delinquency of a 14-year-old girl?

The defendants are, in effect, contending that the statutory wording must be accepted in a strictly literal sense and that as a consequence, an individual committing a perfectly innocent act could conceivably be in violation of the statute. This is not correct. “While a penal statute must be expressed in clear language, it is not necessary that it be so written as to be beyond the mere possibility of more than one construction.” State v. Levell, 181 Neb. 401, 149 N. W. 2d 46. “In construing a statute, the court must look to the object to be accomplished, the evils and mischief sought to be remedied, or the purpose to be subserved, and place on it a reasonable or liberal construction which will best effect its purpose rather than one which will refeat it.” Rebman v. School Dist. No. 1, 178 Neb. 313, 133 N. W. 2d 384. A penal statute is required to be construed strictly, but should be given a sensible construction, and general terms therein should be so limited in their construction as not to lead to injustice, oppression, or an absurd consequence. Macomber v. State, 137 Neb. 882, 291 N. W. 674. See, also, State v. Tatreau, 176 Neb. 381, 126 N. W. 2d 157. A primary rule of construction is that the intention of the Legislature is to be found in the ordinary meaning of words of a statute in the connection with which they are used and in the light of the mischief to be remedied; the rule requiring strict construction of a penal statute is not violated by giving to the words their full meaning in the connection in which they are employed. State v. Buttner, 180 Neb. 529, 143 N. W. 2d 907. “It is the duty of this court to give a statute an interpretation which meets constitutional requirements if it can reasonably be done.” Heywood v. Brainard, 181 Neb. 294, 147 N. W. 2d 772.

The reasonable, sensible construction of this statute and the one which appears obvious, complies with the legislative intention in that it refers only to conduct committed with reference to or directed toward a child or performed upon or against a child. When viewed in this light, it is apparent that defendants’ objections are without foundation.

Defendants further state that since the statute in question defines a delinquent child as one who has violated any law of the state or any city or village ordinance that it constitutes an unlawful delegation of legislative authority and violates constitutional requirements of uniformity in application. It is true that the ordinances in the various cities and villages in Nebraska may, and undoubtedly do, vary in some respects and that an act which may be forbidden in one city may not be forbidden outside the city limits or in another city. This, however, is not the point at issue. Section 43-201, R. S. Supp., 1965, is not a penal statute, but is one created for the protection of minors. The fact that a child may violate a law or ordinance and thus be considered a delinquent has only an indirect bearing on the proposition here presented. One prosecuted under section 28-477, R. S. Supp., 1965, is not prosecuted because a child violated a city ordinance or a state law, but rather because such offender encouraged, caused, or contributed toward the child’s having done so. In other words, he is prosecuted because he, in effect, has encouraged or caused the child to regard the constituted authorities with contempt and encouraged or caused him to willfully perform an unlawful act. One may well be in violation of the statute even though the child does not actually violate any law or ordinance if such violation has been encouraged. There is, therefore, no unlawful delegation of legislative authority and the statute is uniform in its application.

It may be well to ascertain how statutes of this nature are generally regarded. It appears to be generally recognized that such statutes necessarily have a broad application. There is such a multitude of acts of this kind which can reasonably be expected to encourage, cause, or contribute to> the delinquency of minors that it is, from a practical standpoint, well-nigh impossible to specify and forbid each particular act. The following language may be found in 31 Am. Jur., Juvenile Courts,. Etc., § 95, p. 345: “It is broadly held under most statutes that any acts of commission or omission causing or tending to cause juvenile delinquency constitute the offense of contributing to delinquency. But it is impossible to lay down any rule as to what will or will not invariably tend to produce delinquency or dependency in minors.” Notwithstanding the necessity of couching such statutes in general terms, they are generally upheld. In Loveland v. State of Arizona, 53 Ariz. 131, 86 P. 2d 942, the court upheld a statute which forbade one “* * * by any act, cause, encourage or contribute to the dependency or delinquency of a child, * * (Emphasis supplied.) In Anderson v. State (Alaska), 384 P. 2d 669, the court dealt with a statute which provided: “Any person who shall commit any act, or omit the performance of any duty, which act or omission causes or tends to cause, encourage or contribute to the delinquency of any child * * (Emphasis supplied.) A delinquent child was there defined as: “* * * any child under the age of eighteen years who violates any law of the United States, or of the Territory, or any city or town ordinance; * * (Emphasis supplied.) The act was held to be constitutional. In State v. McKinley, 53 N. M. 106, 202 P. 2d 964, the statute dealt with provided: “Any person who shall commit any act or omit the performance of any duty, which act or omission causes, or tends to cause or encourage the delinquency * * *” shall be guilty of a felony. (Emphasis supplied.) The definition of a juvenile delinquent included one under the age of 18 years: “Who has violated any law of the state, or any ordinance or regulation of a political subdivision thereof.” (Emphasis supplied.) The court upheld the constitutionality of the statute. In State v. Montalbo, 33 N. J. Super. 462, 110 A. 2d 572, the court had before it a statute which provided that: “A parent, legal guardian or person having the custody or control of a child * * * or any other person who by any willful act encourages, causes or contributes to a child’s delinquency, is guilty of a misdemeanor.” (Emphasis supplied.) The New Jersey statutes further provided: “Juvenile delinquency is hereby defined as the commission by a child under 18 years of age (1) of any act which when committed by a person of the age of 18 years or over would constitute: * * * b. The violation of any penal law or municipal ordinance * * (Emphasis supplied.) The court upheld the act as constitutional. It will be noted that the cases last-above cited are very similar to the Nebraska act in that they use the terms “any act which encourages, causes, or contributes to the delinquency of a minor” (emphasis supplied) and also include in the definition of a juvenile delinquent, a child under the age of 18 years who violates a city or municipal ordinance. For other cases not quite so directly in point but along the same general line, see, McDonald v. Commonwealth (Ky.), 331 S. W. 2d 716; People v. Beaugez, 232 Cal. App. 2d 650, 43 Cal. Rptr. 28; Brockmueller v. State, 86 Ariz. 82, 340 P. 2d 992; Sissom v. State, 210 Tenn. 556, 360 S. W. 2d 227; Millhollan v. State, 221 Ga. 165, 143 S. E. 2d 730; Fernandez v. Klinger, 346 F. 2d 210; State v. Evans, 73 Idaho 50, 245 P. 2d 788; State v. Barone (Fla.), 124 So. 2d 490.

In view of the foregoing, we find the statute first above-mentioned to be constitutional and that the district court erred in ruling to the contrary thus requiring a reversal of the judgment and a remand of the cause.

Reversed and remanded.