Dissenting Opinion
Arterburn, J.(Dissenting).
I concur in the majority opinion excepting that portion which holds that the evidence is sufficient to sustain the verdict. The appellants were convicted of contributing to the delinquency of minors “by knowingly, wilfully, encouraging and causing said Nancy Marie Reed, Martha Ann Richards, and Carroll Bauer to use intoxicants, to-wit: Beer as a beverage, contrary to the form of statute.” The offense charged is specific *350and limited to the sole act' of encouraging minors to use beer and nothing more. There is no evidence, in -my opinion, that the appellants by any positive act, gave, invited, or urged the girls to use the beer. It. may not have been at- all necessary to “encourage” these -girls to drink béer. The evidence is lacking on this point. We have ho right to make any assumption on this.point nor that the. appellants are guilty of a criminal offense. A distinction should be made between juvenile delinquency (not a crime) and an act of am adult in cowtributing to or encouraging juvenile delinquency, which is a crime. The former proceedings are not criminal in nature while the latter proceedings constitute a crime. State ex rel. Johnson v. White Circuit Court (1948), 225 Ind. 602, 77 N. E. 2d 298.
Contributing to or encouraging delinquency, a crime must be stated and proved in the same manner as any other criminal offense.. The general rules of evidence covering criminal prosecutions are applicable here. The state, in this case, has the burden of proving the defendant guilty beyond a reasonable doubt.
This is not a case such as that in Murphy v. State (1916), 61 Ind. App. 226, 111 N. E. 806, where an affirmative, positive, and knowing act was committed' by the defendant. In that case, the defendant invited a minor into a saloon where intoxicating liquors were sold and purchased, and gave the minor a glass of beer. This is more like the case of Stone v. State (1942), 220 Ind. 165, 41 N. E. 2d 609, where the defendant was charged with contributing to the delinquency of a child by “encouraging said child to remain out all night.” The evidence showed that the minor and the defendant met two boys and with' them went to a park where the defendant left about eleven o’clock and the minor came home next morning. The court said in that case (220 Ind. 165, supra) on page 170:
*351“There is no evidence that Barbara, whose age is not disclosed, counseled or encouraged Katherine to remain out all night, or that she knew, or had reason to know, that Katherine intended to stay out all night, or that, knowing of such an intention,_ she had any power or influence to prevent it. This is clearly not sufficient to sustain the allegations of the first count of the affidavit.”
The courts are limited in this state, in determining what are crimes by the wording of the statutes defining criminal offenses. The legislature has not yet reached such refinement in defining crimes involving moral conduct, that one in the presence of and observing the misconduct of another person, such as a minor (except one in loco parentis), has a legal duty to interfere in an attempt to prevent any improper or condemned conduct. However, admirable and commendatory, such attempts are to prevent crimes or delinquent acts, it is no penal offense to remain passive in its presence. Remaining passive, indifferent, or inactive, is different from a positive act of “encouraging” or urging minors to use intoxicating liquor.
As an example, if these girls had stolen any money of personal property placed on the table by the. appellants and openly available to the girls at the homes they were in and at the time they were with these appellants, then on the same evidence as here presented would it be contended that the appellants could be convicted of “encouraging”' the girls to commit such larceny? The record is just as devoid of any positive act of the appellants which reveals the appellants encouraged the girls to take and use the beer as it would be if the girls had taken the money laying on the table where it was available to them. Whether it be beer that was taken or money that was taken the principle is the same.
The appellants have not been charged with holding *352a “party” which contributed to the delinquency to the girls in certain specific instances. Since no such formal charge of that kind is before us they may not be tried or convicted on evidence which might tend to show other deplorable acts on their part unless they are charged with such specific acts. Here, the only charge is the encouraging of minors to use beer and no other charge.
We may have the feeling that under the evidence in this case the girls and the boys involved in the events related were “protecting” each other by their testimony at the trial. Nevertheless, as much as we condemn such acts as revealed in the evidence, or suspect, or doubt the completeness of the testimony in this case, we may not supply the very obvious omissions necessary to prove the crime charged against the appellants.
There must be evidence of positive acts of the appellants showing they urged or encouraged the minors to use the beer. The proof of all the essential elements of a criminal charge must be made beyond a reasonable doubt before a person may be found guilty thereof. No matter how much we deplore the acts of the defendants or how revolting a criminal charge may be, it must be proved specifically as charged.
“The verdict may not be based upon mere suspicion, possibility, guess or conjecture.”
Christen v. State (1949), 228 Ind. 30, 39, 89 N. E. 2d 445.
I feel the evidence to be insufficient in this case to support the verdict of guilty.
Emmert, J. concurs:
Note : Reported in 133 N. E. 2d 842.