245 N.E.2d 358 | Ohio Ct. App. | 1969
Fisher and David R. Striker, two 17-year-old boys, were each found to be a delinquent juvenile offender, and, on March 8, 1968, each was ordered "committed to the Ohio State Reformatory at Mansfield, Ohio, as provided under Section
The respective complaints as filed, one against John R. Fisher, case No. 18202, and the other against David R. Striker, case No. 18204, in the Juvenile Court of Tuscarawas County, Ohio, each charged "that on the 18th day of January, 1968, between the hours of 7:15 p. m. and 8:15 p. m., in the County of Tuscarawas and State of Ohio, (they) did have carnal knowledge of a female person, to wit: * * *, aged 15 years, forcibly and against her will, contrary to and in violation of Section
Section
"(1) `Child' includes any child under eighteen years of age * * *."
Section
"As used in Sections
"(A) Who violates any law of this state, the United States, or any ordinance or regulation of a subdivision of the state, except as provided in Section
"(B) Who does not subject himself to the reasonable control of his parents, teachers, guardian, or custodian, by reason of being wayward or habitually disobedient;
"(C) Who is an habitual truant from home or school;
"(D) Who so deports himself as to injure or endanger the morals or health of himself or others;
"(E) Who attempts to enter the marriage relation in any state without the consent of his parents, custodian, legal guardian or other legal authority."
To the charge made in the complaint each boy entered a plea of "not guilty." Each boy was represented by counsel.
Section
"No person shall have carnal knowledge of any female person forcibly and against her will.
"Whoever violates this section shall be imprisoned not less than three nor more than twenty years." *185
Each filed the following motion:
The court's entry shows that:
"The court made inquiry when said matter came on before the court for argument as to the matter of whether the court should retain jurisdiction or bind said alleged delinquent juvenile offender over to the grand jury of this county. It was mutually agreed by all parties that said matter should come on for hearing before this court on the 7th day of February, 1968, at 1:30 p. m. and this matter is hereby continued."
A joint trial was later held before the Juvenile Court Judge on March 3, 1968, following which judgment was entered on March 4, 1968, as follows:
"It is hereby ordered, adjudged and decreed by the court that there was sufficient and competent evidence to find that said David R. Striker, Jr., is a delinquent juvenile offender as set forth in the complaint against him.
"It is further ordered, adjudged and decreed that said David R. Striker, Jr., is a juvenile delinquent in violating Section
A like journal entry was filed in the case of John R. Fisher, and each case was continued to March 8, 1968, at which time each was "committed to the Ohio State Reformatory at Mansfield, Ohio, as provided under Section
Warrants to convey them were issued, and both were delivered by the sheriff to the Ohio State Reformatory, Mansfield, Ohio, on March 11, 1968, and due return made. *186
Section
"* * *
"* * * If the court finds that the child * * * is delinquent, * * * it may by order proceed as follows:
"* * *
"(E) Commit a male child over sixteen years of age who has committed an act which if committed by an adult would be a felony to the Ohio State Reformatory."
Section
"Courts imposing sentences to the reformatory shall make them general, and not fixed or limited in their duration. The term of imprisonment shall be terminated by the pardon and parol commission, as authorized by Sections
In each case, notice of appeal to this court was filed on March 11, 1968.
Thereafter, on April 15, 1968, each defendant filed a motion with the Juvenile Court for an order to suspend the further execution of sentence and place the defendant on probation upon such terms as the court may determine. Such motion was filed under the provisions of Section
"Subject to Sections
Such motions, timely filed on April 15, 1968, were not heard by the Juvenile Court until October 2, 1968, following *187
which hearings the court, after the defendants had each been committed to the Ohio State Reformatory, Mansfield, Ohio, for seven months, less four days, ordered that the defendants be placed on probation and that "the sheriff of this county shall return the said John R. Fisher and David R. Striker, Jr., to Tuscarawas County on the 7th day of October, 1968, and that a copy of this Entry shall be sent to the Superintendent of the Ohio State Reformatory at Mansfield, Ohio, for the said juvenile delinquents' release, as provided by Section
On October 7, 1968, the defendants were, accordingly, released from the Ohio State Reformatory, Mansfield, Ohio, and placed on probation.
Section
"The superintendent of the reformatory shall receive * * * all male criminals between the ages of sixteen and thirty years sentenced to the reformatory.
"Male persons between the ages of sixteen and twenty-one years convicted of a felony shall be sentenced to the reformatory instead of the penitentiary, * * *.
"Male persons between the ages of twenty-one and thirty years may be sentenced to the reformatory * * * if the court passing sentence deems them amenable to reformatory methods.
"No male person convicted of murder in the first or second degree shall be sentenced or transferred to the reformatory."
Section
"A male child over sixteen years of age committed by a Juvenile Court to the reformatory shall be received by the superintendent of the reformatory. After a child so committed has been received, sole control over such child shall be in the reformatory and the jurisdiction of the Juvenile Court over such child shall cease. The superintendent shall provide for the education of such child in such branches of industry, agriculture or otherwise, as he shall determine, having in view his reformation and preparation for usefulness. Such child shall be committed until he arrives *188 at the age of twenty-one years unless sooner released for satisfactory behavior and progress in training."
Section
"The right of trial by jury shall be inviolate, except that, in civil cases, * * *."
Section
"Except in * * * and cases involving offenses for which thepenalty provided is less than imprisonment in the penitentiary,no person shall be held to answer for a capital, or otherwiseinfamous, crime, unless on presentment or indictment of a grandjury; * * *. In any trial, in any court, the party accused shall be allowed to appear and defend in person and with counsel, to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process to procure the attendance of witnesses in his behalf, and a speedy trial by an impartialjury of the county in which the offense is alleged to have been committed; * * *. * * * No person shall twice be put in jeopardy for the same offense." (Emphasis added.)
Section
"A defendant in a criminal action is presumed to be innocent until he is proved guilty of the crime charged, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he shall be acquitted. This presumption of innocence places upon the state the burden of proving him guilty beyond reasonable doubt."
Section
"In all criminal cases pending in courts of record in this state, the defendant may waive a trial by jury and be tried by the court without a jury. Such waiver by a defendant, shall bein writing, signed by the defendant, and filed in said cause andmade a part of the record thereof. * * *" (Emphasis added.)
From the foregoing, it is clear that any male person sentenced to the Ohio State Reformatory, who is between the ages of eighteen and thirty years, and any child between *189
the ages of sixteen and eighteen, who has been recognized by the Juvenile Court under the provisions of Section
Does the Constitution of the United States of America or the Constitution of the state of Ohio require that a person between sixteen and eighteen years of age, who, upon a finding of delinquency, is committed directly from Juvenile Court to the same institution to which an adult is sentenced following conviction for felony, be afforded equal rights of due process?
In the case of In re Darnell,
"The provisions of Section
In the case of Cope v. Campbell,
"1. Proceedings in the Juvenile Court are civil in nature and not criminal. Section
"2. Section
The Ohio statutes make no provision for jury trial in *190 any delinquency hearing in Juvenile Court, nor is there any statute requiring proof beyond a reasonable doubt in a delinquency hearing.
The case of In re Gault,
(1) Written notice of the specific charge or factual allegations, given to the child and his parents or guardian sufficiently in advance of the hearing to permit preparation;
(2) Notification to the child and his parents of the child's right to be represented by counsel retained by them, or, if they are unable to afford counsel, that counsel will be appointed to represent the child;
(3) Application of the constitutional privileges against self-incrimination; and
(4) Absent a valid confession, a determination of delinquency and an order of commitment based only on sworn testimony subjected to the opportunity for cross-examination in accordance with constitutional requirements.
In the foregoing respects, the Supreme Court of the United States by its decision in In re Gault,
In numerous decisions the United States Supreme Court has held that the provisions of the
The
"* * * No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life,liberty, or property, without due process of law; nor deny toany person within its jurisdiction the equal protection of thelaws." (Emphasis added.)
Determination of denial of liberty is dependent upon the commitment or sentence imposed. We limit our decision in this cause to the factual situation before us, i. e., to the situation where the state institution to which the juvenile is committed is the same institution to which adults are sentenced following conviction for a felony.
It is our judgment that the provision of the
We render our decision under the provisions of the United States Constitution, which we consider applicable *192
under the specific facts before us, to which provisions no reference was made by the Supreme Court of Ohio in the cases ofIn re Darnell,
For the reasons stated, the judgments finding and decreeing John R. Fisher and David R. Striker, Jr., to be juvenile delinquents and committing them to the Ohio State Reformatory, Mansfield, Ohio, as provided by law under Section
Judgments reversed anddefendants discharged.
RUTHERFORD and VAN NOSTRAN, JJ., concur.
McLAUGHLIN, P. J., concurs in the judgment only. See the dissenting opinion upon reconsideration of In re Whittington,