DeBacker v. Brainard

• Decision Date: 04 October 1968
• Docket Number: No. 36989,36989
• Citation: 183 Neb. 461,161 N.W.2d 508
• Parties: Clarence J. DeBACKER, Appellant, v. Homer BRAINARD, Sheriff of Dodge County, Nebraska, Appellee.
• Court: Nebraska Supreme Court

Page 508

161 N.W.2d 508

183 Neb. 461

Clarence J. DeBACKER, Appellant, v. Homer BRAINARD, Sheriff of Dodge County, Nebraska, Appellee.

No. 36989.

Supreme Court of Nebraska.

Oct. 4, 1968.

Kerrigan, Line & Martin, Fremont, for appellant.

Richard L. Kuhlman, County Atty., Fremont, for appellee.

Clarence A. H. Meyer, Atty. Gen., Mel Kammerlohr, Asst. Atty. Gen., Lincoln, amicus curiae.

Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN and NEWTON, JJ.

PER CURIAM.

The petitioner was found to be a delinquent child and ordered committed to the Boys' Training School at Kearney. The facts alleged as the basis for the charge of delinquency constituted the crime of forgery if he had been charged under the general criminal laws. Petitioner asserts that section 43--206.03, R.S.Supp., 1967, a part of the Juvenile Court Act, is unconstitutional in that it denies him the right of a jury trial, and applies a 'preponderance of the evidence' rule rather than a 'beyond a reasonable doubt' rule to the adjudication of delinquency.

Four judges are of the opinion that the statute is unconstitutional as challenged. Three judges are of the opinion that it is constitutional. Article V, section 2, Constitution of Nebraska, provides in part: 'No legislative act shall be held unconstitutional except by the concurrence of five judges.'

The petition for habeas corpus here was dismissed by the district court. That judgment must, therefore, be affirmed.

Affirmed.

McCOWN, Justice, joined by SPENCER, BOSLAUGH, and SMITH, Justices.

The constitutional rights of juveniles and the developing ramifications of In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (May 15, 1967), are at issue here. By habeas corpus, the petitioner, a 17-year-old minor, sought his discharge from the custody of the Dodge County sheriff under an order committing him to the Boys' Training School at Kearney. The denial of a jury trial and the statutory application of a preponderance of the evidence rule rather than the beyond a reasonable doubt rule are the basis of the constitutional challenge.

The county attorney filed a petition in the Dodge County court within its juvenile jurisdiction charging that Clarence J. DeBacker, a minor 17 years of age, was a delinquent child within the meaning of section 43--201(4), R.S.Supp., 1967. The basis for the charge of delinquency was the possession of a forged check with intent to utter it as genuine. The facts alleged in the petition constituted the crime of forgery under section 28--601(2), R.R.S.1943, if he had been charged under the general criminal laws. The penalty for violation of that section is imprisonment in the Nebraska Penal and Correctional Complex not exceeding 20 years nor less than 1 year and a fine not exceeding $500.

The check bore the signature 'Donald J. DeBacker,' petitioner's father, and was given to the O. P. Skaggs store for groceries on January 26, 1968. The check was passed by the petitioner who said his father's signature was on the check. Petitioner's father and mother were known to the clerk at the store who had taken checks from petitioner's father previously. Petitioner, after full and complete Miranda warnings, gave a statement to the police in which he stated that his mother was determined she was going to have a birthday party for the petitioner and needed more food. His mother was very jittery and told petitioner to sign his father's name to a check blank which she had given him. Petitioner's mother assured him that it was all right for him to go ahead and write the check so he did so, signing his father's name. Petitioner and his mother went to the store and petitioner went in and got groceries and approximately $10 change. It was stipulated that petitioner's father would testify that his wife could not write checks on his account; that he told the store the check was not signed by him; that his signature did not appear on the check; and that he told the police perhaps his wife and petitioner may have had something to do with the check.

Before the proceedings commenced, petitioner objected to the jurisdiction of the court because of the denial of his right to a jury trial. At the conclusion of the evidence, the county judge, as judge of the juvenile court, overruled the objection to the jurisdiction of the court, and found that petitioner was a delinquent child. Thereafter, the court ordered the petitioner committed immediately to the Boys' Training School at Kearney. Habeas corpus relief was denied by the district court, and this appeal followed.

Some background is necessary to provide a frame of reference for the constitutional issues raised here. Until the turn of the century, juveniles in the United States were generally treated as adults insofar as the criminal law was concerned, and, of course had the same constitutional rights as adults. With the advent of juvenile court acts, which began in Illinois in 1899, the system of juvenile courts spread to every state in the union. The theory was that for their misconduct, children should not be handled, treated, or punished in the same fashion, nor under the same process and procedures, as adult criminals. The theory also was that a child should not be determined to be guilty or innocent of criminal conduct and there should be a broad range of rehabilitation procedures. In brief, the juvenile court procedures were regarded as being beneficial to the child, and intended to remove and discard the technicalities of substantive and procedural law for adults. Over 40 states have upheld the constitutionality of juvenile court laws erected on such concepts. Nebraska was one. See State ex rel. Miller v. Bryant, 94 Neb. 754, 144 N.W. 804 (1913). In that case, our court took the same approach as other states, and based the validity of the Juvenile Court Act on the doctrine of parens patriae. The state, through the juvenile court, was merely performing the duty of seeing that the child was properly cared for. The problems involved in denying to a juvenile the constitutional protections afforded to an adult charged with crime were avoided simply by declaring that the juvenile court procedure was civil rather than criminal in nature. This court said in State ex rel. Miller v. Bryant, supra: 'The law is not of a criminal nature. The purpose of the criminal law is to punish, while the juvenile law is to help, the child, and restraint is only imposed as a means of such help.'

Some of the juvenile court acts made the jurisdiction of the juvenile court exclusive, and some provided for a waiver by the juvenile court to the adult criminal court. The Nebraska pattern created a concurrent jurisdiction as to criminal misconduct, and enabled the county attorney to determine whether to file an action under the general criminal laws of the state, or a delinquency proceeding in the juvenile court. See, State v. McCoy, 145 Neb. 750, 18 N.W.2d 101; Fugate v. Ronin, 167 Neb. 70, 91 N.W.2d 240.

At its inception in 1905, and until 1963, the Nebraska Juvenile Court Act, with respect to jury trials in juvenile court, provided: 'In all trials under this act where a delinquent child is charged with a crime, any person interested therein may demand a jury or the judge of (on) his own motion may order a jury to try the case; * * *.' See Laws 1905, c. 59, s. 2, p. 306, now s. 43--202, R.R.S.1943.

This specific provision for a jury trial was effectively eliminated by this court. We held that charging a child with being delinquent did not charge him with a crime, even though the facts alleged would have constituted a specific charge of crime if made against an adult. Such charges, we said, merely set forth the necessary facts showing him to be delinquent. See Laurie v. State, 108 Neb. 239, 188 N.W. 110.

This position was reaffirmed on many occasions. See State ex rel. Weiner v. Hans, 174 Neb. 612, 119 N.W.2d 72 (1963). It should be noted that in the Hans case, Chief Justice Simmons specifically dissented from that part of the court's opinion that approved the denial of a jury trial. He stated in that dissent: 'By the device of charging that the accused is a delinquent and not a criminal, a jury trial is denied. The substance of the offense and not the form of the charge should control. The liberty and reputation of a person is involved. Youth as well as maturity are entitled to the benefits of the jury system. The statute and the Constitution so provide.'

In 1963, in an extensive recodification of the Juvenile Court Act, the provision for jury trials was removed. Section 43--206.03, R.S.Supp., 1967, now provides in part: '(2) Hearings shall be conducted by the judge without a jury in an informal manner, applying the customary rules of evidence in use in civil trials without a jury in the district courts.

'(3) At the hearing the court shall first consider only the question of whether the minor is a person described by section 43--201. This shall be known as the adjudication. After hearing the evidence on said question, the court shall make a finding and adjudication entered in the minutes based on the preponderance of the evidence, whether or not the minor is a person described by section 43--201.

'(4) If the court shall find that the child named in the petition is not within the provisions of section 43--201 it shall dismiss the case. If the court finds that the child named in the petition is such a child, it shall make and enter its finding and adjudication accordingly, designating which subdivision or subdivisions of section 43--201 said child is within; the court shall then proceed to an inquiry into the proper disposition to be made of the child.'

Section 43--201, R.S.Supp., 1967, now establishes four different subdivisions: Dependent child, neglected child, delinquent child, and a child in need of special supervision.

This pattern was only typical of what happened in all the states. Form swallowed substance, and semantics...