People v. Bergotini

I concur in the judgment. I am of the opinion that the information fails to state a public offense within the meaning of section 28 of the so-called juvenile court law of the year 1913, the only statute relied on by the prosecution as covering the matter. It seems to me that to give this section such a construction as would support the information herein, or sustain this conviction, on the evidence introduced on the trial, would necessarily attribute to the legislature the intent thereby to *Page 723 make any act or omission that in fact causes or tends to cause, encourage, or contribute, however remotely, to the dependency or delinquency of a minor, a crime.

So far as the defendant himself is concerned, the information substantially charges only that the mother of the alleged dependent children in the home of herself, her husband, and the children, sustained and lived "in immoral relations" with said defendant, with his consent, request, and approval; "and thereby neglected and abandoned said children;" and that finally, at the request and encouragement of defendant,she deserted and abandoned her children to live an immoral life with defendant, leaving the children without a proper or fit home. There is not the slightest suggestion that any alleged "immoral relations" were in the presence or with the knowledge of any of the children. The only suggested consequence thereof was that, by reason thereof, the mother "neglected and abandoned said children and said home." And as to her finally leaving the home where her husband and children remained, it is alleged simply that she did this at the request and encouragement of the defendant. In other words, all that is alleged against defendant is that, as a consequence of his relation with the mother of the children, she at first neglected them and finally, at his request and because of his encouragement, she left her home, with the result that she deserted and abandoned the children, and thereby failed in the performance of her duties toward them. Whatever act or omission there was directly causing or tending to cause, encourage, or contribute to the alleged dependency of the children was the act or omission of the mother alone. Defendant did nothing in their presence or elsewhere directly accomplishing any such result. Whatever he personally did began and ended with the mother, and was not directed toward any of the children.

The only possible basis of any claim of act or omission causing, tending to cause, encouraging or contributing to the alleged dependency, is solely the act or omission of themother in neglecting and abandoning her children. The only connection of the defendant therewith is that she, the mother, may have done this in consequence of her relations with him.

I am satisfied that the statute before us may not reasonably be construed as including any such case. It is entirely fair *Page 724 and permissible to construe it as referring exclusively to acts or omissions done or made directly with relation to the minor child. No case has been cited, and I have been able to find none, involving any other kind of an act or omission. For instance, one willfully commits lascivious acts in the presence of a child capable of comprehension, or toward such a child; or has immoral relations with a child; or does with relation to the child any of the very numerous things that may directly cause, tend to cause, or contribute to its dependency. Such acts or omissions are clearly within the scope of the statute. But something done solely with relation to somebody else, in no way directly affecting the child, may not fairly be held within its scope. And it can make no difference in this connection whether the thing so done is immoral, as in the case at bar, or absolutely free from blame.

I agree in the conclusion, also, that the evidence utterly failed to show a case which warrants a conviction under the statute invoked. As is said in the opinion of Mr. Justice Melvin, "there can be little doubt that the defendant was found guilty because of his adultery — an offense for which, as such, he was not on trial."

Sloss, J., concurred.