State v. Gonzales , 241 La. 619 ( 1961 )

McCALEB, Justice.

Appellant was charged, tried and convicted in the Juvenile Court for the Parish of Orleans with contributing to the delinquency of a female child in that he enticed, aided and permitted her to perform with him a sexually immoral act, to wit, sexual intercourse, in violation of Article 92 of the Criminal Code (R.S. 14:92(7)). After being sentenced to pay a fine of $500 and serve one year in jail and one year additional in default of payment of the fine, appellant prosecuted this appeal, relying on three of the four bills of exceptions reserved by him during the proceedings for a reversal of his conviction.

The salient facts show that appellant, when first introduced to the girl, a minor, emancipated by marriage, at a bus station, proposed that she have sexual intercourse with him but she declined at that time. However, a few days later, she communicated her assent to his proposition through a friend and the parties repaired to a motel where they engaged in sexual relations. Thereafter, many other acts of intercourse were performed by them and they subsequently lived together as man and wife at a house in Arabi, Louisiana and also at an apartment in the Fifth Municipal District of New Orleans, commonly called Algiers.

At the time of these sexual relations, the young woman had contracted marriage twice. In September of 1956 she was married to one Chartier at Bay St. Louis, Mississippi, it being stated in the marriage license, which was witnessed by her mother, that she was 15 years of age. Subsequently, on February 8, 1957, she married another man, one Joe Marino, in Tylertown, Mississippi while she was admittedly still married to Chartier and, in the second marriage license, it is stated that she was 16 years of age.

Upon the development of these facts at the trial, appellant moved for a directed verdict as soon as the State had rested and, when the motion was overruled, he reserved Bill of Exceptions No. 2. This motion is founded on two grounds:

(1)That, since the minor was a married woman at the time of the performance of the sexual acts, appellant did not contribute to her delinquency, as she cannot be regarded as a child, within the intendment of R.S. 14:92, even though she was under 17 years of age, and

(2) That the documentary evidence reveals that the girl was over the age of 17 at the time of the performance of the sexual acts and, hence, there has been no violation of the law as it is of the essence of the crime charged that the alleged child be under 17 years of age.

The second ground upon which-appellant’s motion is based cannot be reviewed by us because it presents solely an issue of fact over which we are without appellate jurisdiction in criminal cases. See-Section 10, of Article 7 of the Constitution and State v. Gatlin (In re Daniel), 241 La. 321, 129 So.2d 4, and authorities there-cited. It is only when it is claimed there is no evidence at all to prove an essential element of the offense that a question of law is raised which is subject to review.¹

Conversely, we think that appellant’s other contention is well taken as-the girl, being a married woman, is not a child within the purview of the statute under which the prosecution is laid. The pertinent part of R.S. 14:92 reads:

“Contributing to the delinquency of juveniles is the intentional enticing, aiding, or permitting, by anyone over the age of seventeen, of any child under the age of seventeen to: * * *

“7. Perform any sexually immoral act; or * * (Emphasis ours.)

In Louisiana, minors, whether male or female, are emancipated of right by marriage (Article 379, Civil Code) and, when thus emancipated, may act without the assistance of a curator in any act or proceeding (Article 382, Civil Code). The effect •of the emancipation by marriage of a female minor is to change her status from that of a child to a married woman, albeit she is still subject to many of the disabilities and incapacities, of which other married women have been relieved by law (see R.S. 9:101, 102 and 103), until she reaches •eighteen years of age.

Conformably with the above cited codal provisions, this Court has held on three ■occasions that the juvenile courts were without jurisdiction of female minors under seventeen emancipated by marriage because, having acquired the status of married women, they were no longer juveniles, •or children, within the purview of the Juvenile Court Acts. State v. Golden, 210 La. 347, 26 So.2d 837; State v. Priest, 210 La. 389, 27 So.2d 173 and In re State in Interest of Goodwin, 214 La. 1062, 39 So. 2d 731.

In construing the legislative intent in defining the offense of contributing to the delinquency of juveniles, we must do so in the light of Section 3 of the Criminal Code (R.S. 14:3) which declares that the articles thereof “ * * * cannot be extended by analogy so as to create crimes not provided for * * * ” therein and that all of its provisions are to be given a genuine construction “ * * * according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.” Accordingly, in ascertaining the scope of R.S. 14:92, it is to be presumed that the Legislature used the word “child” in its ordinary accepted meaning under civil law, that is, a juvenile subj ect to parental control or guardianship and that it does not include a minor emancipated by marriage. Had it been its design to extend the law to all minors under the age of seventeen, irrespective of their legal status, the lawmaker would have used the word “person” or “anyone” under seventeen instead of “child”.

When the Criminal Code was incorporated in the Revised Statutes as Title 14, upon their adoption in May, 1950, it was specifically provided in R.S. 13:1570, dealing with juvenile courts generally, and in R.S. 13:1674, pertaining to the Juvenile Court for the Parish of Orleans, that the word “child” as used in the acts defining delinquent, neglected or abandoned children was not to be deemed applicable to emancipated minors. However, by Act 82 of 1950, which was subsequently adopted at the Regular Session of the Legislature, all of the provisions contained in the original Chapter 6 of Title 13, regulating the manner of conducting proceedings in the juvenile courts, were repealed and a new Chapter 6 substituted therefor. Under the new provisions, the jurisdiction of the juvenile courts was enlarged so as to include therein all persons less than seventeen years of age, regardless of whether they were emancipated by marriage, or otherwise. See R. S. 13 :1569. It was by virtue of this statute that we held in State v. Cronin, 220 La. 233, 56 So.2d 242 that the Juvenile Court for the Parish of Orleans had jurisdiction over a fourteen-year old girl charged with delinquency, despite the fact that she was married at the time of the hearing of the case. But that decision does not control the result to be reached here, for the change brought about by the passage of Act 82 of 1950, enlarging the scope of the Juvenile Court’s jurisdiction over delinquent or neglected children so as to include therein minors emancipated by marriage, did not also effect a change in the criminal statute under which appellant was prosecuted herein. On the contrary, the statute under consideration has not been amended and the word “child”, as used therein, must be attributed the legal meaning Of that word at the time the law was passed. See 82 C.J.S. Statutes, § 329, page 638 and the many cases cited in support of the text. The scope of a penal statute may not be enlarged by implication, or changes in social legislation, so as to include acts or persons not provided for therein. R.S. 14:3.

Being of the opinion that R.S. 14:92 does not include within its terms persons under the age of seventeen emancipated by marriage, appellant’s motion for a directed verdict was well founded and should have been sustained. In view of this conclusion, it is unnecessary that we consider the other bills of exceptions taken in the case.

The conviction and sentence are annulled and set aside and appellant is ordered discharged.

HAMLIN, J., concurs in the decree. HAWTHORNE, J., dissents with written reasons. SANDERS, J., dissents for the reasons, assigned by HAWTHORNE, J.

1 . While, as argued by appellant’s counsel, the statements of age contained in the marriage certificates filed in evidence, which were given at an unsuspicious time, appear to be highly credible, they are contradicted by the testimony of the girl’s mother who stated at the trial that, although there was no written record of her daughter’s birth, she was actually born in April 1943. When questioned as to the verity of the ages recited in the marriage certificates, to which she appears as a witness, the mother said1 that she was in the state of a nervous breakdown at the time she certified to-the correctness of those statements and that they were erroneous.