*1 years imprisonment. We reverse because trial court did not acquire CALDWELL, Appellant Dennis Lee Defendant, over the person juvenile. (Defendant Below), August Defendant was born on charges information that the offense Indiana, Appellee STATE of 1981; occurred on September thus he was (Plaintiff Below). (16) less than at the time he committed the offense. information, In response to the Defend- ant filed a motion to dismiss divided into three paragraphs. The third paragraph, ground, asserted that if 81-6- Ind.Code § 2-1(d) Supp.1982), were the correct jurisdictional statute, an issue which he raised in the first paragraph of the motion and which we upon need not address based disposition our appeal, the Prosecu- tor was required, by virtue of Defendant's age and the statutory provision, to seek a waiver of Defendant from the court to the adult criminal court 81-6-2-4(c) (Burns Ind.Code Supp. 1982), provides: "Upon prosecutor full investigation hearing, after court shall waive if it (1) finds that: The child is an act that would be murder if commit- adult; (2) ted There is probable cause to believe that the child has com- act; (8) mitted the The child was ten (10) years of older when age or the act committed; charged was allegedly unless it would be in the best interests of the safety child and of the and welfare of the community for him to remain within the juvenile justice system." Ind.Code rele- part: vant "The juris- court does not have diction over an individual for an (1) (murder); violation of: IC 85-42-1-1 Cummins, J.A. Public Defender for Dela- 85-42-3-2 (kidnapping), IC IC Muncie, ware County, for appellant. 85-42-4-1 (rape); or IC 85-42-5-1 Pearson, Gen., Linley Atty. E. Palmer K. (A) if: It (robbery), was committed while Ward, Gen., Deputy Atty. Indianapolis, for (B) deadly weapon; armed with appellee. bodily results in or serious injury bodily injury; if the individual was sixteen PRENTICE, Justice. at the time of the alleged violation." (Appellant) Defendant was convicted of In overruling 85-42-1-1(2) Defendant's motion to dis- Felony (Burns 1979), thirty (80) miss, and sentenced to the trial court cited this statute but
279 Legislature "It is the any specific presumed did not state reason for its absurdity, intend an and such reliance thereon. does not result will be avoided if the terms argues The State that the limitations con- a construc- by act admit of it reasonable 31-6-2-1(d) tained in Ind.Code concern- § tion; meaning anything 'absurdity' and ing age, deadly weapon, the use of a and unnatural, irrational, or incon- which is so apply only the infliction of to bodily injury supposed venient that it cannot be to charge Robbery, juvenile of and that the men of have been within the intention of jurisdiction any individu- and discretion." intelligence ordinary al, charged no matter his or her with age, 9, 18-19, State, 220 Marks v. Ind. Murder, This con- Kidnapping, Rape. omitted). 108, (citation 40 111 N.E.2d light struction of the statute is untenable in Moreover, from the manner apparent it is 81-6-2-4(c), part which was of Ind.Code § drafted, in which the statute was that the legislation of the same that contained Ind. was sixteen phrase, "if the individual 81-6-2-1(d), 1981, Acts Law Code Public § at the time of the years age of or older violation.", modifies entire sub- the 31-6-2-4(c) for manda- § the (d), deprive section so as to tory years waiver as to children ten old or jurisdiction court of over accuseds older is contained in the revised age charged of or older with (Ind.Code 81-6) originally code as enacted Rape, both of which are Kidnapping 81-6-2-1(d) in 1978. is one of several § felonies, A B and Rob- only Class or Class amendments to that code added by Public as a Class A or bery, charged when it is Law 266 of 1981. We do not attribute the B The net result is that the felony. Class 81-6-2-4(c) enacting retention of while only to treat individu- Legislature intended 81-6-2-1(d) legislative oversight. charged with als sixteen old Yet, nearly inescapable this would be a of the enumerated Class A or Class Murder accept conclusion if we were to the State's B felonies as adults. 81-6-2-4(c) interpretation, because could less than sixteen at the Defendant was application have no if the Juvenile Court offense, the instant time that he committed child, jurisdiction regardless has no of any subject he was not Consequently, Murder. age, of its with an act that would an adult under Ind.Code to treatment as if be murder committed an adult. Alter- waiver 31-6-2-1(d). proper Absent a natively, interpretation, under the State's juvenile court under Ind.Code from the giving effect to both sections would result 31-6-2-4, court, an adult crimi- the trial waiver with re- requiring mandatory court, him. The had no of ten spect ages to children of the for waiver made record discloses no motion as to through (15) years fifteen but not and that Defendant by the Prosecutor over the children who are either over his the absence of raised (15) years fifteen or under the ten The trial court timely in a manner. person cannot be (10) years. Such a construction dismiss, the motion to denying erred in sanctioned, given acknowledged the and ob- granting in not alternatively, socie- policy proportion vious of the code to court. the case to the referring tal tolerance and of children ac- protection 701, State, Ind. v. 252 Cummings See to their cording ages. 251 N.E.2d this construing legislation, "In Court court is re- of the trial judgment employ must a reasonable versed, remanded for fur- and the case is statutory language as a means of dis opin- consistent with proceedings ther goals. true covering legislature's ion. presumed cannot be that our lawmakers applied their to be expect enactments C.J., GIVAN, DeBRULER and Pryor manner." illogical or absurd HUNTER, JJ., concur. State, 408,412, (1973)260 Ind. 296 N.E.2d PIVARNIK, J., opinion. dissents 127." PIVARNIK, Justice, dissenting.
I must respectfully dissent from the ma-
jority who find that the trial court did not
acquire jurisdietion over the person of De-
fendant Caldwell. At the time Defendant was charged,
(Burns Supp.1983)was in effect and provid-
ed court did not have
jurisdiction over an individual for an al-
leged violation murder, Ind.Code 35-
42-1-1 1979). agree I with the
State's that subparts (A) and
(B) in 31-6-2-1(d) apply only to robbery part (4)
under murder, do not apply to
kidnapping or rape. The fact that Acts 1981, Public Law 266 reenacts 81-6-2-
4(c) while amending 31-6-2-1 to include (d)
subsection does not make this interpre-
tation all, untenable. After an action which initially belongs court and
accordinglyis filed therein may subsequent-
ly develop such that the longer action no
belongs court pursuant to 31- 6-2-1(d) and must be waived to adult crimi- court 31-6-2-4(c). This
would be the situation of aggravated
battery which becomes murder after the
victim dies a lingering death. As of
the juvenile
the crime of I therefore dissent murder. and would affirm the trial court. ROBINSON,
Debra Darleen Appellant
(Defendant below), Indiana,
STATE Appellee
(Plaintiff below).