*1
Sрegal
prior
been told of the theft
the owner
arrest.
vote to reverse the
of
conviction
Williams.
Reportеd in
In Re Juvenile of [No. 668-S-102. Filed December Lawson, Indianapolis, John W. appellant. Dillon, Attorney
John J. General, Gooch, Deputy Michael V. Attorney General, appellee.
DeBruler, is an C.J. This from a determination County appellant, Hаmilton Juvenile Court that a fe- male, years age, of fifteen child due appel- principal receiving from
After infоrmation appellant from school the absence lant’s school juvenile court inquiry, making preliminary and after probation ordered officer to file *2 1, 76, 1959, the 1945, by ch. 356, 8, Acts as amended .ch. § § petition al- being The Ann. 9-3208. same Burns’ Ind. Stat. § leged due tо appellant appellant and a summons to court issued being 356, 9, parents 1945, the same ch. § Burns’ Ind. Stat. Ann. 9-3209. § 1967, 11, court held a the
On Oсtober appellant and her mother at which the stipulated by represented Appellant’s counsel counsel. and correctly testify principal of school would the the days previ- fifty-nine appellant absent from schoоl eighteen days year, the current late for ous and had enrolled explanation been absent a total of term without and had hearing. Appellant twenty-two days up to the time of had been chroni- and claimed that she conceded absences cally appellant’s placed the mother ill. To show this testimony he in- of her stand and at the cоnclusion testify formed to wished stand, saying: “I don’t court to allow her to take the refused argued particularly Appellаnt hear from Diane.” in care to her motion for new trial in her brief on that this by agree. refusal the trial court was error and we reversible Appellant had a under oath in own be half under the Sixth and Fourteenth Amendments to the Ferguson Georgia
United States Constitution. v. 570, 783, 756; (1961), 5 In 365 U. L. Ed. 2d 81 S. Ct. S. 257, (1948), 682, Re Oliver 92 L. 333 U. S. Ed. 68 Ct. S. expressly statute, Acts of In Indiana 235, 1905, 169, same Burns Ind. Stat. Ann. ch. § 9-1603: competent following persons witnesses. —Thе are “Who competent witnesses: are
331
[*]
[*]
[*]
defendant,
his own behalf.
“Fourth. The
testify,
But if
defendant does not
his failure to do so
argument
upon
shall not be commented
of the
to in
or referred
cause,
upon,
to,
nor commented
referrеd
inor
jury trying
same;
manner considered
shall
duty
.court,
charge,
be the
struct
in such
its
in-
jury
duty
provisions
as
their
under
section.”
The Court has enforced that statute
Hiatt
several times.
(1920),
524,
277;
189 Ind.
Bird
v. State
(1886),
14;
154, 8
107 Ind.
(1884),
N. E.
v. State
Hartford
Although juvenile proceedings generis are sui and not striсtly proceedings, hearing may criminal where the institution, commitment a state rights
most the fundamental of criminal defendants. (1967), 1, Re Gault U. 18 L. Ed. 2d *3 guarantees juveniles That right Ct. 1428. .case to coun juvenile proceedings. Ferguson Georgia, sel supra, holds right that is a denial of the defendant’s deny counsel to him be sworn and as a witness in his own hold deny appellant We that it was error to a to be sworn as witness and to juvenile in the against proceedings her. granted.
Motion for new trial Hunter, J., concurs; J., Jackson, result; Givan, J., concurs in opinion; concurs in result with Arterburn, J., dissents with opinion.
Concurring Opinion Givan, concur the result majority J. I reached agree many opinion cannot with but of the statements made opinion. in the
I do not think Burns’ Ind. Stat. opinion 9-1603 cited in the applicable to I cases. do is believe applica- requires judge parens patriae tion of thе doctrine hearing only an informal conduct not hearing in a manner be conducted should give impres- possible the child the best fair and calculated reason I feel of the court. For this fairness sion as judge until the has served its that no statеment, opportunity to a make given child the I chooses, the matter before the court. he so for this reason аlone. the case reverse would Opinion Dissenting tendency agree of the cannot with the Arterburn, J. juvenile pro- Court tо members of this make ceedings proceedings. appoint to criminal When we conform delinquent, put position а such child in a defy arrogance law in a court to and we officials create treating problem than him as social should worse by parents. treated truancy, charged with girl,
In this given hearing, overwelmingly prove to me to present. seеms The evidence girl that the anwas habitual much contradiction and without large extent was and to aided and abettеd from school truant yet proceeding mother, reverses this whole permit testify. it is said because lawyer present. prove He did not make offer Her testimony necessary preliminary would be. is a judge may step properly, in order determine after testimony offer, whether material and wit- such place *4 If a refusal be heard. takes ness the error is thеn steps appeal. case, not These taken in an this saved for appointed juvenile. though this even apрointed in court and was for the girl’s rights save, thought this protecting he might appeal. an error on best, be used judgment his in this not cаse and did confront the trial court ruling a direct appeal. in order to save error for procedure Either thеre are rules of which must followed appeal, for an or there are If not. in a waive them this, they such as should be wаived in all with no eliminating discrimination. I see no reason this case for saving normal, appeal, error on reasonable rule for gives opportunity the trial the error know accordingly. appeal, act saved for and he There is proceeding. no reason to waive that this If rule in we have rules, they waived, I believe should be observed and not hardship warrants, by unless an unusual arises which fac- grounds showing, tual for such waiver. Juvenile undisciplined permissive, arises from the environment children, exists with as is evident this It society’s of a refusal to conform to rules or a rule. competent attornеy who necessary procedure conform to the wrong perpetuating ground. one We are another in revers- sending ing it back to this case and the trial court. Reported in 2d
McClintock 1068-S-171. Filed December
[No.