Vachon v. New Hampshire

414 U.S. 478, 94 S. Ct. 664, 38 L. Ed. 2d 666, 1974 U.S. LEXIS 148

• Court: Supreme Court of the United States
• Decided: February 25, 1974
• Docket: 73-573
• Status: Published

Opinions

Per Curiam.

A 14-year-old girl bought a button inscribed “Copulation Not Masturbation” at the Head Shop in Manchester, New Hampshire. In consequence, appellant, operator of the shop, was sentenced to 30 days in jail and fined $100 after conviction upon a charge of “wilfully” contributing to the delinquency of a minor in violation of New Hampshire’s Rev. Stat. Ann. § 169:32 (Supp. 1972) ,¹ In affirming the conviction, the New Hampshire Supreme Court held that the “wilfully” component of the offense required that the State prove that the accused acted “ 'voluntarily and intentionally and not because of mistake or accident or other innocent reason.’ ” 113 N. H. 239, 242, 306 A. 2d 781, 784 (1973). Thus, the State was required to produce evidence that appellant, knowing the girl to be a minor,² personally sold her the button, or personally caused another to sell it to her. Appellant unsuccessfully sought dismissal of the charge at the close of the State’s case on the ground that the State had produced no evidence to meet this requirement, and unsuccessfully urged the same ground as a reason for reversal in the State Supreme Court. We have reviewed the transcript of the trial on this issue, pursuant to Rule 40(1)(d)(2) of the Rules of this Court.³

Our independent examination of the trial record discloses that evidence is completely lacking that, appellant personally sold the girl the button or even that he was aware of the sale or present in the store at the time. The girl was the State’s only witness to the sale. She testified that she and a girl friend entered the store and looked around until they saw “a velvet display card on a counter” from which they “picked out [the] pin.” She went to some person in the store with the button “cupped in [her] hand” and paid that person 25 cents for the button. She did not say that appellant was that person, or even that she saw him in the store. Rather, she testified that she could not identify who the person was. We therefore agree with Justice Grimes, dissenting, that “there is no evidence whatever that the defendant sold the button, that he knew it had been sold to a minor, that he authorized such sales to minors or that he was even in the store at the time of the sale.” 113 N. H., at 244, 306 A. 2d, at 785. This fatal void in the State’s case was not filled by appellant’s concession at trial that he “controlled the premises on July 26.” That concession was evidence at most that he operated the shop; it was in no way probative of the crucial element of the crime that he personally sold the minor the button or personally caused it to be sold to her.

In these circumstances, the conviction must be reversed. “It is beyond question, of course, that a conviction based on a record lacking any relevant evidence as to a crucial element of the offense charged . . . violate [s] due process.” Harris v. United States, 404 U. S. 1232, 1233 (1971). (Douglas, J., in chambers); Thompson v. Louisville, 362 U. S. 199 (1960); Johnson v. Florida, 391 U. S. 596 (1968); see also Adderley v. Florida, 385 U. S. 39, 44 (1966).

The judgment is reversed and the case is remanded to the New Hampshire Supreme Court for further proceedings not inconsistent with this opinion.

It is so ordered.

1 The statute provides in pertinent part:

“[Ajnyone . . . who . . . has knowingly or wilfully done any act to . . . contribute to the delinquency of [a] child, may be punished by a fine of not more than five hundred dollars or by imprisonment for not more than one year or both.”

2 The complaint charged that appellant “did wilfully contribute to the delinquency of a minor by selling or causing to be sold a button with obscene material with slogan on same, to wit, 'Copulation Not Masturbation’ to ... a minor child of the age of 14 years, knowing the said child was a minor . . . .”

3 The Rule provides, in pertinent part, that: “Questions not presented according to [the requirements of this rule] will be disregarded, save as the court, at its option, may notice a plain error not presented.” This discretion has been long acknowledged, see Columbia Heights Realty Co. v. Rudolph, 217 U. S. 547 (1910), recently affirmed in Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U. S. 313, 320 n. 6 (1971), and extends to review of the trial court record, see Sibbach v. Wilson & Co., 312 U. S. 1 (1941). See also Terminiello v. Chicago, 337 U. S. 1 (1949).