In Re Burrus
169 S.E.2d 879
N.C.
1969
Check Treatment
Huskins, J.

Four questions, preserved and brought forward, will be discussed in chronological order.

1. Under the Sixth and Fourteenth Amendments to the Constitution of the United States and Article I, Section 17, of the Constitution of North Carolina, is a juvenile entitled to a jury trial in a juvenile court proceeding on the issue of his delinquency?

The Constitution of the United States, Article III, Section 2, reads in pertinent part as follows: “The trial of all crimes, except in cases of impeachment, shall be by jury. . . .” The Sixth Amendment thereto provides, inter alia: “In all criminal prosecutions the accused shall enjoy the right to a . . . trial, by an impartial jury. . .

The Constitution of North Carolina, Article I, Section 13, reads as follows: “No person shall be convicted of any crime but by the unanimous verdict of a jury. . . . The Legislature may, however, provide other means of trial, for petty misdemeanors, with the right of appeal.”

Absent a statute providing for a jury trial, it is almost universally held that in juvenile court delinquency proceedings the alleged delinquent has no right under the pertinent State or Federal Constitution to demand that the issue of his delinquency be determined by a jury. See Annotation: Right to Jury Trial in Juvenile Court Delinquency Proceedings, 100 A.L.R. 2d 1241, where cases are collected from twenty-five states and the District of Columbia. “The view has generally been taken that statutes providing for the custody or commitment of delinquent or incorrigible children are not unconstitutional by reason of failure to provide for a jury trial, where the investigation is into the status and needs of the child, and the institution to which the child is committed is not of a penal character. Thus it is held that a constitutional guaranty of trial by jury has no application to a proceeding under the juvenile court act.” 31 Am. Jur., Juvenile Courts, etc. § 67; 50 C.J.S., Juries § 80. North Carolina follows the general rule. In Re Watson, 157 N.C. 340, 72 S.E. 1049; State v. Burnett, 179 N.C. 735, 102 S.E. 711; State v. Frazier, 254 N.C. 226, 118 S.E. 2d 556. Federal decisions to date *529 have not changed it. Kent v. United States, 383 U.S. 541, 16 L. ed 2d 84, 86 S. Ct. 1045; In Re Gault, 387 U.S. 1, 18 L. ed 2d 527, 87 S. Ct. 1428; Duncan v. Louisiana, 391 U.S. 145, 20 L. ed 2d 491, 88 S. Ct. 1444; In Re Whittington, 391 U.S. 341, 20 L. ed 2d 625, 88 S. Ct. 1507. These cases enumerate the basic requirements of due process that must be satisfied in juvenile proceedings; however, the right to jury trial is not listed among them. We have not found and counsel has not cited any case supporting the right to jury trials in juvenile proceedings. We therefore adhere to our former decisions and hold that a juvenile is not entitled to a jury trial in a juvenile court proceeding on the issue of his delinquency.

2. Is a juvenile entitled to a public trial in a juvenile court proceeding on the issue of his delinquency?

The Sixth Amendment to the Federal Constitution provides, among other things, that “[i]n all criminal prosecutions the accused shall enjoy the right to a speedy and public trial. . . .” Article I, Section 13, of the Constitution of North Carolina prohibits conviction of any crime except by jury verdict in “open court.” This right to a public trial is now applicable in both state and federal courts by virtue of the Due Process Clause of the Fourteenth Amendment. “In view of this nation’s historic distrust of secret proceedings, their inherent dangers to freedom, and the universal requirement of our federal and state governments that criminal trials be public, the Fourteenth Amendment’s guarantee that no one shall be deprived of his liberty without due process of law means at least that an accused cannot be thus sentenced to prison.” In Re Oliver, 333 U.S. 257, 92 L. ed 682, 68 S. Ct. 499 (1948). The right of an adult charged with crime to be publicly tried is thus firmly established as a matter of constitutional law. See Annotation: Right to Public Trial in Criminal Case — Federal Cases, 4 L. ed 2d 2128.

Juvenile proceedings, however, stand in a different light. Whatever may be their proper classification, they certainly are not “criminal prosecutions.” Nor is a finding of delinquency in a juvenile proceeding synonymous with “'conviction of a crime.” It has never been the practice in such proceedings, here or elsewhere, wholly to exclude parents, relatives or friends, or to refuse juveniles the benefit of counsel. Even so, such proceedings are usually conducted without admitting the public generally. See In Re Oliver, supra (333 U.S. 257, 266, note 12). So long as proceedings in the juvenile court meet the requirements of due process, they are constitutionally sound and must be upheld. This means that: (1) The basic requirements of due process and fairness must be satisfied in a juvenile court *530 adjudication of delinquency. Kent v. United States, supra (383 U.S. 541, 16 L. ed 2d 84, 86 S. Ct. 1045 (1966)); In Re Gault, supra (387 U.S. 1, 18 L. ed 2d 527, 87 S. Ct. 1428 (1967)). (2) The Fourteenth Amendment applies to prohibit the use of a coerced confession of a juvenile. Haley v. Ohio, 332 U.S. 596, 92 L. ed 224, 68 S. Ct. 302 (1948). Gallegos v. Colorado, 370 U.S. 49, 8 L. ed 2d 325, 82 S. Ct. 1209, 87 A.L.R. 2d 614 (1962). (3) Notice must be given in juvenile proceedings which would be deemed constitutionally adequate in a civil or criminal proceeding; that is, notice must be given the juvenile and his parents sufficiently in advance of scheduled court proceedings to afford them reasonable opportunity to prepare, and the notice must set forth the alleged misconduct with particularity. In Re Gault, supra. (4) In juvenile proceedings to determine delinquency which may result in commitment to an institution in which the juvenile’s freedom is curtailed, the child and his parents must be notified of the child’s right to counsel and, if unable to afford counsel, to the appointment of same. In Re Gault, supra. (5) Juvenile proceedings to determine delinquency, as a result of which the juvenile may be committed to a state institution, must be regarded as “criminal” for Fifth Amendment purposes of the privilege against self-incrimination. The privilege applies in juvenile proceedings the same as in adult criminal cases. In Re Gault, supra.

We have been unable to find, and counsel has not cited, any case holding that a public hearing in juvenile proceedings is a constitutional requirement of due process. North Carolina has determined by statutory enactment that a public hearing is neither required nor in the best interest of the youthful offender. We adhere to that view. This assignment of error is therefore overruled.

3. Is the North Carolina Juvenile Court Act (Article 2 of Chapter 110 of the General Statutes) unconstitutional? Brief historical reference seems necessary and appropriate.

The District Court Division of the General Court of Justice was created by Chapter 310 of the 1965 Session Laws, effective in the First Judicial District (embracing Hyde County) on the first Monday in December 1966. G.S. 7A-130, 131. As thus created the district court has exclusive, original jurisdiction over cases involving juveniles, “as such jurisdiction is set forth in chapter 110, article 2, of the General Statutes. This jurisdiction shall be exercised solely by the district judge.” G.S. 7A-277.

Chapter 110, Article 2, of the General Statutes delineates the practices and procedures to be followed in juvenile cases. G.S. 110-21 provides in pertinent part that the superior court (now the *531 district court by virtue of G.S. 7A-277) “shall have exclusive original jurisdiction of any case of a child less than sixteen years of age residing in . . . their respective districts: (1) Who is delinquent or who violates any . . . State law ... or who is truant, unruly, wayward, or misdirected, or who is disobedient to parents or beyond their control, or who is in danger of becoming so. . . .” This statute makes it the constant duty of the court to give each child subject to its jurisdiction such oversight and control as will conduce to the welfare of the child and to the best interest of the State. In Re Morris, 224 N.C. 487, 31 S.E. 2d 539. It deals with delinquent children as wards of the State and not as criminals. State v. Burnett, 179 N.C. 735, 102 S.E. 711; State v. Frazier, 254 N.C. 226, 118 S.E. 2d 556.

Appellants argue that the statute fails to define any of the operative terms such as “delinquent”, “unruly”, “wayward”, “misdirected” and “disobedient” and contend that the statute is therefore void for vagueness and uncertainty.

It is settled law that a statute may be void for vagueness and uncertainty. “A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.” 16 Am. Jur. 2d, Constitutional Law § 552; Cramp v. Board of Public Instruction, 368 U.S. 278, 7 L. ed 2d 285; 82 S. Ct. 275; State v. Hales, 256 N.C. 27, 122 S.E. 2d 768. Even so, impossible standards of statutory clarity are not required by the constitution. When the language of a statute provides an adequate warning as to the conduct it condemns and prescribes boundaries sufficiently distinct for judges and juries to interpret and administer it uniformly, constitutional requirements are fully met. United States v. Petrillo, 332 U.S. 1, 91 L. ed 1877, 67 S. Ct. 1538.

Here, James Lambert Howard was found to be delinquent for the willful violation of (1) G.S. 14-132 which provides, inter alia, that if any person “shall make any rude or riotous noise or be guilty of any disorderly conduct” in any public building of any county, or shall commit any nuisance in such building, he shall be guilty of a misdemeanor; and (2) G.S. 14-273 which provides in pertinent part that if any person “shall wilfully interrupt or disturb any public or private school ... or injure any school building, or deface any school furniture ... or other school property, ... he shall be guilty of a misdemeanor” and fined not more than $50 or imprisoned not more than thirty days.

*532 Barbara Burrus and the remaining juveniles were found to be delinquent for the willful violation of G.S. 20-174.1 which provides that no person “shall wilfully stand, sit, or lie upon the highway or street in such a manner as to impede the regular flow of trafile.” Violation is punishable by fine or imprisonment, or both, in the discretion of the court.

There is nothing vague or indefinite about these statutes. Men — even children — of common intelligence can comprehend what conduct is prohibited without overtaxing the intellect. Judges and juries should be able to interpret and apply them uniformly. In State v. Wiggins, 272 N.C. 147, 158 S.E. 2d 37, cert. den. 390 U.S. 1028, 20 L. ed 2d 285, 88 S. Ct. 1418, defendants were charged with interrupting and disturbing the Southwestern High School in Bertie County by picketing' in front of the school so as to interfere with classes,, a violation of G.S. 14-273. There, as here, defendants argued that the statute was void because its prohibitions were uncertain, vague and indefinite. In upholding that statute, the court said: “It is difficult to believe that the defendants are as mystified as to the meaning of these ordinary English words as . . . they profess to be in their brief. Clearly, they have grossly underestimated the powers of comprehension possessed by ‘men of common intelligence.’ ” That observation seems appropriate here.

The Supreme Court of the United States in sustaining a conviction in the courts of New Jersey for a violation of an ordinance forbidding the use of sound trucks emitting “loud and raucous” sound, said: “The contention that the section is so vague, obscure and indefinite as to be unenforceable merits only a passing reference. This objection centers around the use of the words ‘loud and raucous.’ While these are abstract words, they have through daily use acquired a content that conveys - to any interested person a sufficiently accurate concept of what is forbidden.” Kovacs v. Cooper, 336 U.S. 77, 93 L. ed 513, 69 S. Ct. 448, 10 A.L.R. 2d 608 (1949).

There is nothing vague or mysterious about a statute which provides that any child under sixteen years of age who is delinquent or who violates any state law which would subject an adult to punishment is amenable to the supervision of the juvenile court. Simply stated, that is the complete accusation against these children. It is not alleged that they were unruly or wayward or misdirected or disobedient or beyond the control of their parents. Hence-, it is unnecessary to wage a war of words regarding the clarity or vagueness, as the case may be, of such terminology. We confine our discussion to the portion of the statute under which these children *533 were disciplined. “Generally, delinquent children .... are children who have committed offenses against the law, or who are found to be falling into bad habits, or to be incorrigible, or who knowingly associate with vicious or immoral persons, or who are growing up in idleness and crime.” 31 Am. Jur., Juvenile Courts, etc. § 36. A delinquent child is defined in Black’s Law Dictionary 4th Ed. Rev. (1968) as “an infant of not more than specified age . . . who has violated any law. ...” This seems clear enough. The challenge to these statutes based on vagueness is overruled.

Appellants seek to equate the protective custody of children under the juvenile laws of the State with the trial and punishment of adults under the criminal statutes. By so doing, they conclude that since a juvenile may be committed “during minority” (unless sooner released by the proper authorities) he is required “to serve a longer period of confinement” than the criminal law visits upon an adult for violation of the same statute. Therefore, they argue, the juvenile statutes are constitutionally unsound. The equation is a non sequitur; its rationale fallacious. Nothing in Gault or other recent federal decisions supports it. There are still many valid distinctions between a criminal trial and a juvenile proceeding. It suffices to say that the laws of this State and their administration by the District Court of Hyde County in these cases comply in full measure with recent constitutional standards for juvenile proceedings laid down by the United States Supreme Court in Gault. The record discloses complete fairness on the part of Judge Ward. The alleged misconduct of the children was stated with particularity in the petitions and brought to the attention of the juveniles and their parents in apt time. They wrere given timely notice of the hearing and afforded adequate opportunity to prepare for it. They were represented by able counsel and faced their accusers with lengthy cross examination. No statements or confessions, coerced or otherwise, were offered against them. They were accorded and exercised the privilege of remaining silent and declining to testify. Thus the basic requirements of due process have been satisfied. The constitutionality of the proceedings is fully sustained by Kent and Gault, supra, and by our own decisions as well. These juvenile statutes have been construed, applied and upheld in many decisions of this Court including State v. Burnett, supra (179 N.C. 735, 102 S.E. 711); State v. Coble, 181 N.C. 554, 107 S.E. 132; In Re Hamilton, 182 N.C. 44, 108 S.E. 385; In Re Coston, 187 N.C. 509, 122 S.E. 183; Winner v. Brice, 212 N.C. 294, 193 S.E. 400. Furthermore, statutes similar to our own have been held constitutional in over forty states against a variety of attacks. In Re Gault, supra. See Paulsen, Kent v. United *534 States: The Constitutional Context of Juvenile Cases, 1966 Supreme Court Review 167, 174. Whatever may be the shortcomings of the juvenile court, and there are many, we are not inclined to hamstring the State in its efforts to deal with errant children as wards of the State instead of criminals. The Constitution does not require such mischievous meddling. We follow the rule that statutes will not be declared unconstitutional unless they are clearly so. Hobbs v. Moore County, 267 N.C. 665, 149 S.E. 2d 1; State v. Warren, 252 N.C. 690, 114 S.E. 2d 660. Appellants' challenge to the constitutionality of Article 2, Chapter 110 of the General Statutes is overruled.

4. Did the juvenile court judge err by preventing an appeal in forma pauperis in these proceedings?

An appeal may be taken from any order or judgment of the juvenile court to the North Carolina Court of Appeals in all cases. When an appeal is thus taken the district judge must summarize the evidence and make findings of fact. All appeals are on the record on questions of law or legal inference. G.S. 7A-195; G.S. 110-40. By way of contrast, it should be noted that appeals from the district court in criminal cases are taken to the superior court for trial de novo before a jury. G.S. 7A-196(e). Thus, juvenile court proceedings in the district court are not classified as “criminal cases” appealable to the superior court; and statutes on criminal procedure, dealing with appointment of counsel for indigent defendants and permitting them to appeal in forma pauperis, have no application and offer no solution to the problem before us.

Appeals in forma pauperis in civil actions tried in superior court are governed by G.S. 1-288 which provides, in pertinent part, that "[w]hen any party to a civil action tried and determined in the superior court . . . desires an appeal from the judgment rendered in the action . . . and is unable, by reason of his poverty, to make the deposit or to give the security required by law for said appeal, it shall be the duty of the judge ... of said superior court to make an order allowing said party to appeal . . . without giving security therefor. The party desiring to appeal . . . shall . . . make affidavit that he is unable by reason of his poverty to give the security required by law, and that he is advised by a practicing attorney that there is error in matter of law in the decision of the superior court in said action. The affidavit must be accompanied by a written statement from a practicing attorney . . . that he has examined the affiant’s case, and is of opinion that the decision of the superior court, in said action, is contrary to law.”

*535 G.S. 7A-193 provides: “Except as otherwise provided in this chapter, the civil procedure provided in chapter 1 of the General Statutes applies in the district court division of the General Court of Justice. Where there is reference in chapter 1 of the General Statutes to the superior court, it shall be deemed to refer also to the district court in respect of causes in the district court division.” It is not “otherwise provided”' in Chapter 7A of the General Statutes. It therefore follows that G.S. 1-288 is applicable to appeals in civil actions and juvenile proceedings tried in the district court. Compliance with its terms was necessary to entitle appellants to an order allowing them to appeal in forma pauperis. The requirements are mandatory and must be observed. Anderson v. Worthington, 238 N.C. 577, 78 S.E. 2d 333; Williams v. Tillman, 229 N.C. 434, 50 S.E. 2d 33; Clark v. Clark, 225 N.C. 687, 36 S.E. 2d 261; Franklin v. Gentry, 222 N.C. 41, 21 S.E. 2d 828; McIntire v. McIntire, 203 N.C. 631, 166 S.E. 732. Since the required affidavit and certificate of counsel were not filed in compliance with the statute, the Court of Appeals concluded that the district court judge committed no error in declining to issue an order providing for an appeal in forma pauperis. We concur and note parenthetically that no prejudice has resulted to the juveniles involved. Their appeals have been prepared, docketed and heard by both courts in the Appellate Division of the General Court of Justice. They have been diligently represented by able counsel. While this may not conclusively rebut the suggestion of indigency, it conclusively shows that lack of an order providing for appeals in forma paniperis was harmless.

When there is error on the face of the record an appeal presents the matter for review, and the judgment may be modified to conform to legal requirements. James v. Pretlow, 242 N.C. 102, 86 S.E. 2d 759; Smith v. Smith, 223 N.C. 433, 27 S.E. 2d 137; Sheets v. Walsh, 215 N.C. 711, 2 S.E. 2d 861.

We note ex mero motu that the “Order of Commitment and Probation” signed by the able and patient judge in each of these cases exceeds the disposition authorized by G.S. 110-29. That statute provides that the court, if satisfied that the child is in need of the care, protection, or discipline of the State, may so adjudicate, and may find the child to be delinquent, neglected, or in need of more suitable guidance. Thereupon the court may: (1) place the child on probation subject to named conditions; or (2) commit the child to the custody of a relative, etc.; or (3) commit the child to the custody of the County Department of Public Welfare to be placed by said department in an institution maintained by the State; or (4) com *536 mit the child directly to an appropriate State or private institution or family home; or (5) render such further judgment or make such further order of commitment as may be authorized by law. These authorized dispositions are stated in the alternative. The judge may use any one of them but is not empowered to use two or more at the same time. When he placed each child on probation subject to the conditions named in the order, he exhausted his immediate authority. Therefore, that portion of the order in each case which adjudged that the juvenile be “committed to the custody of the Hyde County Department of Public Welfare to be placed by said department in a suitable institution maintained by the State for the care of delinquents (as said institutions are enumerated in G.S. 134-91), after having first received notice from the superintendent of said institution- that such person can be received, and held by said institution for no definite term but until such time as The Board of Juvenile Correction or the Superintendent of said institution may determine, not inconsistent with the laws of this State” is unauthorized and must be deleted. Each judgment is accordingly modified by deleting the quoted portion together with the words “this commitment is suspended and said child,” which are now redundant.

When a child is placed on probation, as here, the judge determines the duration and conditions thereof, and may modify same at any time. Probation may be revoked at any time the court finds the conditions of probation have been breached. The court may then commit the juvenile or make such other disposition as it might have made at the time the child was placed on probation. G.S. 110-32.

The result reached by the Court of Appeals in all other respects is affirmed. Let the cases be remanded to the Court of Appeals for certification to the District Court of Hyde County for compliance with this opinion.

Modified and affirmed.

Bobbitt and Shabp, JJ., dissent.