This case was assigned to Presiding Judge BRICKEN, who prepared the opinion hereafter appearing. A majority being in disagreement, that opinion becomes a dissent. The effect of the dissenting opinion would be to reaffirm the conclusions we reached in the case of Moore v. State,33 Ala. App. 188, 31 So.2d 373.
As Mr. Justice Frankfurter of the United States Supreme Court recently stated: "Wisdom too often never comes, and so one ought not to reject it merely because it comes late."
After considerable study and research, we now entertain the view that we fell into error in the Moore case, in holding that the prosecution in that cause was improperly predicated on violations of the provisions of Title 62, Section 324, Code 1940.
We do not question the soundness of the conclusion that the facts therein disclosed are sufficient to base a prosecution for the offense of assault and battery. This is supported by many authorities.
There can be no doubt that it is within the competency of the legislature to create two or more criminal offenses which may be committed by a single act. They may be different in kind as well as degree. Vol. 22, C.J.S., Criminal Law, § 9, page 59; Gunter v. State, 111 Ala. 23,20 So. 632, 56 Am.St.Rep. 17.
As stated by our Presiding Judge, this case originated in the Juvenile and Domestic Relations Court of Jefferson County. There the State introduced the testimony of several witnesses. The defendant did not testify nor offer any evidence in support of his defense.
When the case came to trial on appeal to the Circuit Court it was agreed that the cause would be submitted on the testimony which was taken in the Juvenile Court, and it was agreed also that a statement of the defendant's testimony would be stipulated and considered by the court as his evidence at the trial.
The evidence of the accused as stipulated is recited in full in Presiding Judge BRICKEN'S opinion.
The State introduced evidence relating to two different occasions which occurred about a week apart.
With reference to the first of these, Barbara Harris testified that, in company with *Page 345 her younger sister, Patricia, and a little boy, she went to a picture show at an East Lake theater; that the accused came and sat by her sister who occupied a seat immediately to the right of witness. We copy here from the record:
"Q Tell the Court, Barbara, what happened after Mr. Smithson sat down? A. Patricia was playing with him, and I told her not to be playing around strange people and she said he was only being nice to her. Then he put his hat over himself and exposed himself, and I got up and went to the lobby * * *
"Q Barbara, you say this man exposed himself. Tell the Court what you mean by that. A Well, he put his hat over himself and started playing with himself.
"Q Put his hat over himself? A Yes, sir.
"Q Where? A Down here, and then he motioned for me to come sit down by him. There was an extra seat there by him, but I got up and went to the lobby. * * *
"Q Barbara, I know it is embarrassing to you to describe this situation, but it comes necessary for me to ask you. When you say you saw the defendant, Mr. Smithson here, playing with himself, get a little bit more specific and say what you saw. A I saw what he exposed.
"Q What was that? A That was down here. I saw what he exposed. I saw he was playing with himself."
On the Saturday following, according to the testimony of Barbara, this occurred:
"Q Barbara, I believe I asked you if on the Saturday following the occasion you have just described, which would be December 7, you went to the East Lake Theater with Edith Abernathy? A Yes, sir.
"Q And your little sister, Patricia. A Yes, sir.
"Q Now, on this occasion did you sit at about the same place you sat before or where did you sit? A I think I sit in the middle row. I am not sure it was the same place, but it was somewhere along in there.
"Q Somewhere along toward the front? A Yes, sir.
"Q Now, did anything unusual happen this time? Did anything unusual happen while you were in the picture show on Saturday, December 7? A I saw Mr. Smithson.
"Q At that time while you were in the picture show — A He came in and sat behind us.
"Q Behind you? A Yes, sir.
"Q This defendant? A Yes, sir.
"Q He came in and sat behind you? A Yes, sir.
"Q Sat behind you? A Yes, sir.
"Q Did he do anything out of the ordinary? A I had my legs wrapped up under my chair and he was sitting down behind me and he put his legs around my legs.
"Q He put his feet around your legs? A Yes. sir.
"Q And locked them in front of your legs? A Yes, and he started rubbing my legs.
"Q With his feet? A Yes, sir.
A police officer was asked this question: "What statement did Mr. Smithson make to Mr. Davis in regard to the before mentioned incidents, alleged incidents, in the East Lake Theater?" To which he replied: "I asked him why did he put his legs around the little girl and his answer was, he didn't know why he did these things. He just went berserk at times and I asked him if he exposed his privates and he said if he did he didn't remember it. That was about all he said."
It appears that Barbara Harris was eleven years of age at the time in question.
We have delineated the pertinent parts of the testimony. This will suffice as a basis for our review.
The creation of juvenile courts in the various states is of fairly recent origin. Problems affecting and influencing the welfare of the youth have increased and become more complex and involved within the past few decades. This is reflected in a large measure by the records which evince a high rate of juvenile delinquency. *Page 346 Legislatures have sensed the dire need of affording more protection to the physical, mental, and moral well-being of children to the end that they may be directed away from the paths of crime and other forms of deliquency.
In consonance with this need, many laws have been enacted for the protection of minors, and for the convenient and expeditious enforcement of the provisions of these statutes juvenile courts have been established.
The Legislature of this State passed laws relating to this matter, and they appear first in Code 1907, Sections 6450-6465. With some amendments these laws were reenacted and codified as Sections 3528-3559, Code 1923, and subsequently as Sections 350-383, Title 13, Code 1940. Sections 311-330, Title 62, Code 1940, are in effect an elaboration of the general laws and are made applicable to Jefferson County.
The prosecution of the case at bar proceeded in the juvenile court and was based on the alleged violations of Section 324 of the local law. The pertinent parts of this section are:
"Any person who shall commit any act, or omit the performance of any legal duty, which act * * * causes or tends to cause or encourage any male child under sixteen years of age or any female child under eighteen years of age, to become dependent, neglected, or delinquent, as defined herein, or which act or omission contributes thereto; or any person who shall by any act, word, conduct, or omission of legal duty, or who shall * * * induce or endeavor to induce * * * aid or encourage any such child * * * to follow any course of conduct, or to so live as would cause, or manifestly tend to cause, any such child * * * to become, or remain, dependent, neglected, or delinquent, as defined herein, to the end that such children may be protected from such influences, shall be guilty of a misdemeanor and upon conviction * * *."
As a guide to the meaning of the terms set out in the act, Section 311 provides in part:
"The words 'delinquent child' shall mean any male child who while under sixteen years of age, or any female child who while under eighteen years of age, being or residing in such county, violates any penal law of the United States or of this state. or any regulation, ordinance or law of any city, town, or municipality of such county; or who commits any offense or act for which he or she could be prosecuted in a method partaking of the nature of a criminal action or proceeding; or who is beyond the control of his or her parent, parents, guardian or custodian, or who defies their authority, or who is otherwise incorrigible; or who is guilty of immoral conduct; or who is leading, or from any cause is in danger of leading an idle, dissolute, lewd or immoral life, or who is found in any place, for permitting which, an adult may be punished by law * * *."
In the construction of statutes similar to ours, the courts have adhered to the rule that it is not necessary or required to prove that the minor in question is in fact delinquent at the time the acts were committed upon which the prosecution is predicated. A contrary view would defeat the beneficent purposes of the statute. To delay the enforcement of the provisions until the child is steeped in immorality and delinquency would tend to destroy the deterring and restraining influences the legislature intended to provide. People v. Klyczek, 307 Ill. 150,138 N.E. 275; State v. Harris, 105 W. Va. 165, 141 S.E. 637; Loveland et al. v. State, 53 Ariz. 131, 86 P.2d 942; People v. Brosnan, 361 Ill. 545, 198 N.E. 708.
We entertain the view that the guilt of the appellant in the instant case did not depend upon proof that the little girl in question yielded to or acquiesced in or in some manner evidenced approval of the conduct of the accused, or that delinquency in fact resulted therefrom. To hold otherwise would have the effect of fixing guilt vel non not solely upon acts or behavior of the defendant but rather on the character of the child and her moral acumen to resist the importunities and approaches.
The evident intent of the legislature in this respect is disclosed by the inclusion in *Page 347 the statute of such words as "tends to cause", "encourage", "endeavor to induce", and "manifestly tend to cause."
Protective laws of this nature should be construed and interpreted so as to forward the purposeful intent of the enactors. Clearly, here two aims are sought: (1) To protect minors not delinquent from any influence or condition that might tend to delinquency. (2) To punish those who commit any acts or omit the performance of any legal duty, the effect of which is to cause a child to remain a delinquent. It is not a statute to reform, but a statute to prevent and deter. People v. Cohen, 62 Cal.App. 521, 217 P. 78; Wallin v. State, Okl.Cr.App., 182 P.2d 788; People v. McDougal,74 Cal.App. 666, 241 P. 598.
The cases that hold to the contrary should be considered in the light of the language of the statutes they seek to construe.
We have examined many authorities which have treated the question of instant concern. Those that will be reviewed and cited had under consideration a statute which in many respects is analogous to ours. In each case the court held that the delineated facts were sufficient to sustain a judgment of conviction for contributing to the delinquency of a minor.
The case of Wallin v. State, supra, discloses that the defendant made indecent exposures in the presence of the minor. The evidence is to like effect in People v. Brosnan, supra.
The proof in the case of People v. Cohen, supra [62 Cal.App. 521, 217 P. 79], supports these allegations in the complaint:
"That at all the times herein mentioned the said Harry Y. Cohen was and is an artful and designing person, and did then and there endeavor and attempt to influence, cause, allow, and to persuade and cause the said Lillian Alleen Hildreth to come within the influence, persuasion, and control of the said defendant, Harry Y. Cohen, at the times and places last aforesaid, did then and there willfully and unlawfully, on or about the 11th day of September, 1922, feel, fondle, and handle the limbs and private parts of the said Lillian Alleen Hildreth with the intent and purpose of arousing and gratifying the passions of the said defendant, Harry Y. Cohen, and of the said Lillian Alleen Hildreth, a minor child under the age of 21 years, to wit, of the age of 16 years."
In the case of Loveland et al. v. State, supra, a conviction was sustained on proof that the accused gave the minor intoxicating liquors in such an amount that intoxication resulted.
The case of People v. Hemma, 94 Cal.App. 25, 270 P. 457,458, discloses these facts: The accused, a man 42 years of age, wrote and delivered a note to a girl 15 years old. The note was as follows: "Tonight will wait down east Road where the Blue Gum Tree's will be there by 9/30 and will wait until 11." We excerpt from the opinion:
"Inasmuch as the girl did not go to the suggested place of rendezvous, we agree with counsel for appellant in his contention that, if any crime was committed by defendant, the offense was completed by the delivery of the note. It is not material, although it appears to be the fact, that the defendant did not succeed in obtaining a favorable response to the suggestion contained in the note. If he has committed a crime, the offense consisted solely in the doing of an act which in its nature was such that it would tend to cause, encourage, and contribute to delinquency on the part of the minor. * * * The sole question to be decided is presented by appellant's contention that the delivery of said note by the defendant, a man of mature years, to a young girl in no way related to him, and without any apparent good reason therefor, does not carry with it any necessary implication that by said act he was seeking to persuade her to the commission of an act which would place her in danger of leading an idle, dissolute, lewd, or immoral life. We are of the opinion that this contention should not be sustained, and that, in the absence of any explanation showing an innocent purpose, the natural and reasonable tendency of the defendant's action, according to its manifest intention, was to persuade the young girl to commit an act such as this statute is intended to prevent." *Page 348
The evidence in the case of People v. McDougal, supra, was substantially as follows: The defendant accosted a girl 12 years of age and offered her candy and $5 if she would visit his room in a hotel. It appears that the child did proceed with the accused along the public streets and an unlighted alley in the direction of the hotel. At this point she refused to go further and immediately informed her parents and others of the instance, and assisted in the defendant's apprehension.
The court posed this question as pertinent for a jury response: "Would the defendant's conduct toward her cause or manifestly tend to cause her to become a delinquent child?" [74 Cal.App. 666, 241 P. 600]
In treating the question the court wrote a very able opinion. Those who are particularly interested in the matter of instant concern will profit by a careful study of this opinion.
We take the facts from the opinion in the case of State v. Tweedy, 165 Wn. 281, 5 P.2d 335, 336:
"There is no merit to appellant's first contention that the evidence is insufficient to sustain the judgment. These two young girls were in room 214 with Donald at the time the appellant arrived with the four glasses and the two bottles of Canada Dry. Finding his son in the presence of these two young girls, he made no protest or objection. But on the contrary drank with them, and smoked cigarettes with them. He took the older girl onto his lap and kissed her. He kissed the younger girl. There is also competent evidence from which the jury was justified in finding that the appellant told 'dirty stories' in the presence of these girls."
See also, People v. Kinser, 99 Cal.App. 778, 279 P. 488; People v. Voice, 68 Cal.App.2d 610, 157 P.2d 436; People v. Codina, 30 Cal.2d 356, 181 P.2d 881.
We entertain the view that the prosecution was not improvidently begun and that the evidence was sufficient and adequate to pose a factual issue.
We conclude that on the basis of the facts the judgment of the court below should not be disturbed. Pride v. State,32 Ala. App. 639, 29 So.2d 346; Williams v. State, 17 Ala. App. 442,85 So. 879.
Affirmed.
HARWOOD, J., concurs.