Duck v. State, 5 Div. 796
| Decision Date | 17 June 1965 |
| Docket Number | 5 Div. 796 |
| Citation | 176 So.2d 497,278 Ala. 138 |
| Parties | Ricky Sanders DUCK v. STATE of Alabama. |
| Court | Alabama Supreme Court |
Tom Radney, Alexander City, for appellant.
Richmond M. Flowers, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
Appellant, 14 years of age (born on August 20, 1949), was brought before the Juvenile Court of Tallapoosa County pursuant to a petition of the sheriff of said county filed in said court on January 3, 1964, praying that 'summons issue to the said child' and to his parents 'requiring them to show cause why said child should not be adjudged a ward of the state and dealt with according to the provisions of the law.' The petition alleges that 'said child should be adjudged a ward of the state and in need of its care and protection, in that he so deports himself, to endanger the morals, health or general welfare of society'; and, further, 'that on the night of January 2, 1964, said child * * * shot to death his sister, Clenda Duck,' and 'has confessed to this offense.'
On April 24, 1964, the Juvenile Court made a finding that appellant 'cannot be made to lead a correct life and cannot be properly disciplined under the provisions of' Chapter 7, Tit. 13, Code 1940 (), and transferred appellant 'to the jurisdiction of the Circuit Court of Tallapoosa County, the same being a Court having jurisdiction of the offense with which the said child is charged, there to be proceeded against according to law.'
On the same day appellant took an appeal from said judgment to the circuit court of Tallapoosa County, sitting as a court of equity, pursuant to Code 1940, Tit. 13, § 362. This section provides for a trial de novo in he circuit court.
On May 4th the eqity court appointed, as guardian ad litem for appellant, the attorney who therefore had been representing him.
A hearing of the appeal was had on June 18th. On July 2nd, the court rendered a decree that appellant be 'transferred to the Circuit Court of Tallapoosa County, Alabama, at law, there to be placed upon the criminal docket of said court and there to be proceeded with according to law'; that appellant 'be and he is hereby bound over to the Grand Jury of Tallapoosa County'; and that appellant's bail bond shall remain in full force and effect pending the action of said Grand Jury.' This appeal, taken on July 6th, is from that decree.
The statute of primary interest in this proceeding is Code 1940, Tit. 13, § 364, which provides, in pertinent part, as follows:
'If, at any time, after thorough investigation or exercise of its disciplinary measures, the juvenile court or judge thereof shall be convinced that a delinquent child, more than fourteen years of age, brought before it under the terms of this chapter cannot be made to lead a correct life and cannot be properly disciplined under the provisions of this chapter, the juvenile court or judge thereof shall have authority to transfer the care of such delinquent to the jurisdiction of any other court in the county having jurisdiction of the offense with which said child is charged, there to be proceeded against according to law. * * *'
The foregoing was applicable both in the Juvenile Court and in the Equity Court. See: Stapler v. State, 273 Ala. 358, 363, 141 So.2d 181; Code 1940, Tit. 13, § 362, supra. Section 362 provides that, '[U]pon appeal, the circuit court shall try the case de novo and shall proceed, under and in pursuance of the intent and terms of this chapter, to render such judgment as to it shall seem just and for the best interests of the child.'
The decisive question on this appeal is whether the evidence supports the decree appealed from. In other words, does the evidence support the finding that appellant 'cannot to made to lead a correct life and cannot be properly disciplined under the provisions of this chapter' (Code 1940, Chapter 7, Tit. 13, §§ 350-383, as amended)?
The evidence relied on to support the decree consists of the alleged crime, appellant's confession that he committed the crime, and testimony of the judge of the Juvenile Court. All of the other evidence, including that given by two psychiatrists and a psychologist from Bryce's Hospital, where appellant was under observation for several months, and that of a number of other witnesses having knowledge of appellant's past behavior, is clearly to the effect that appellant can 'be made to lead a correct life.'
Our view is that the competent and legal evidence is not sufficient to support the decree appealed from, thereby necessitating its reversal and the remandment of the cause to the circuit court.
It has been held that evidence concerning the alleged crime is relevant only on the issue of delinquency, which means that such evidence cannot alone be the basis for holding that a child found to be delinquent cannot 'be made to lead a correct life.' See: Guenther v. State, 3 Div. 58, Ala.Aup. (MS) (May 27, 1965); Ex parte State ex el. Echols, 245 Ala. 353, 355, 17 So.2d 449. From Echols is the following:
This means that evidence touching on the alleged crime is to be considered only in determining whether the child is a 'delinquent child,' as that term is defined in § 350(3), Tit. 13, Code 1940, so as to make him subject to commitment under the provisions of § 361, Tit. 13, Code 1940. Such evidence cannot be considered in determining whether the child 'can be made to lead a...
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...596, 188 So.2d 594. On rehearing in Guenther, supra, the court overruled Stapler v. State, 273 Ala. 358, 141 So.2d 181, and Duck v. State, 278 Ala. 138, 176 So.2d 497, in so far as they were in conflict with Guenther, The findings and order of the trial court did not specifically find that ......
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...as Section 377, Title 13, Code of Alabama. Certainly, if we thought that the Supreme Court of Alabama in Stapler, or in Duck v. State, 278 Ala. 138, 176 So.2d 497, or in Seagroves v. State, 279 Ala. 621, 189 So.2d 137, as supplemented by Guenther v. State, 279 Ala. 596, 188 So.2d 594, and S......
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Seagroves v. State
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