Freestone v. State ex rel. Advance-Rumely Co.

• Decision Date: 07 June 1931
• Docket Number: No. 13990.,13990.
• Citation: 176 N.E. 877,98 Ind.App. 523
• Parties: FREESTONE et al. v. STATE ex rel. ADVANCE–RUMELY CO.
• Court: Indiana Appellate Court

98 Ind.App. 523

176 N.E. 877

FREESTONE et al.

v.STATE ex rel. ADVANCE–RUMELY CO.

No. 13990.

Appellate Court of Indiana, in Banc.

June 7, 1931.

Appeal from La Porte Circuit, as La Porte Juvenile, Court; Alfred J. Link, Judge.

Proceeding by the State, on the relation of the Advance–Rumely Company, against Phillip Amos Freestone and others. From the judgment, defendants appeal.

Affirmed.

See, also, 89 Ind. App. 653, 167 N. E. 633.

H. W. Worden and W. A. McVey, both of La Porte, for appellants.

James M. Ogden, of Indianapolis, V. Ed Funk, of Milltown, and Hickey & Dilworth, of La Porte, for appellee.

KIME, J.

The historical and factual elements of this matter are somewhat complicated and involved. We have set out all that is material as we have found them. Phillip Amos Freestone was born November 5, 1915. His parents were divorced, and he lived with his father, Lon Freestone, who had been awarded his care and custody. On June 23, 1927, when not yet 12 years of age, he was on a complaint duly filed alleged to be a delinquent child, in that he participated in petty larceny; he then being on probation in the juvenile court of La Porte county. He was on that date brought before the circuit judge of that county, who was by virtue of his office the judge of the juvenile court. His plea was guilty, the judgment of the court was pronounced orally, and he was committed to Whites Manual Labor Institute. Minutes of the proceedings were entered in writing in the juvenile court judge's docket at the time under the direction of the judge by his probation officer, who acted as his secretary, clerk, and stenographer in juvenile matters. The father of this child was then killed while in the employ of Advance–Rumely Company. A petition in behalf of Phillip A. Freestone was filed with the Industrial Board for compensation, by H. W. Worden, who had been appointed guardian for this purpose. The board made an award which was reversed and remanded by this court in Advance–Rumley Company v. Freestone, 89 Ind. App. 653, 167 N. E. 377. A copy of the judgment in the juvenile court was necessary in the proceedings to be had before the Industrial Board. This was found not to be of record.

The present action denominated a petition was then instituted in the La Porte circuit court sitting as a juvenile court, by the state of Indiana, on the relation of the Advance–Rumely Company, asking the court to order entered nunc pro tunc the finding and judgment of June 23, 1927. Those named defendants in the petition were Phillip Amos Freestone, Amos Freestone, Herman W. Worden, guardian of the person and estate of Phillip Amos Freestone. Written notice was given to Phillip Amos Freestone and H. W. Worden, guardian, which was accepted by W. A. McVey and H. W. Worden, attorneys for Amos Freestone and Herman W. Worden, guardian. Let us say here that it appears that Phillip Amos Freestone and Amos Freestone are one and the same boy. H. W. Worden, guardian, by W. A. McVey, filed a verified motion requesting attorneys for Advance–Rumely Company to show by what authority they appeared for the state. Such retainer was disclaimed by the attorneys. In this motion they say that Phillip Amos Freestone, commonly known as Amos Freestone, is the same infant, and that Worden is the guardian of said infant.

A verified motion was then filed to dismiss the petition, which was overruled. An answer in general denial to the petition was then filed by H. W. Worden and W. A. McVey, as attorneys for H. W. Worden, guardian of Phillip Amos Freestone. The issue being thus formed on the petition and answer, the court heard evidence of J. C. Richter, the judge who heard the juvenile case, and ordered the entry nunc pro tunc.

Then the name Phillip Amos Freestone appears again. He, being the same infant, by the same attorneys who had previously appeared served a notice on the prosecuting attorney that he would move the court to strike out the order entering nunc pro tunc this finding and judgment. No notice was given the Advance–Rumely Company. This motion was filed and overruled.

The guardian prayed an appeal and was given time. Nine days later Phillip Amos Freestone prayed an appeal. Neither were perfected, and this comes here on a vacation appeal with notice served on the prosecuting attorney of the Thirty–Second judicial circuit, Advance–Rumely Company, and the clerk of the La Porte circuit court sitting as a juvenile court.

The assignment of errors sets out three separate sets of alleged errors, the first in the name of Phillip Amos Freestone; the second in the name of Amos Freestone; and the third in the name of the guardian of the person and estate of Phillip Amos Freestone. The first specification of all three is identical. It is that the decision of the La Porte circuit court, sitting as the juvenile court, is contrary to law. The second is common to the first two sets, and is to the effect that the court erred in overruling the motion to strike out the order entering the nunc pro tunc finding and judgment. The third is common to all sets, and is to the effect that the court erred in ordering the judgment entered nunc pro tunc. The third set adds that the court erred in overruling the guardian's motion to dismiss the petition.

[1][2] Appellants contend that the original action here was a criminal proceeding, and, since it was, the informal complaint was not sufficient. They cite Oliver, Auditor, v. State ex rel. Lahr (1924) 195 Ind. 65, 144 N. E. 612, 614, as authority for the statement that this is a criminal prosecution. That case centered on the question of whether or not the title of an act which included “criminal” judges referred to a judge of a juvenile court. The court held by a three to two decision that, “construing the title and the act together, it is by no means clear that the ‘criminal’ judges referred to do not include the judge of the juvenile court, as one exercising criminal jurisdiction. And to doubt whether or not a statute is unconstitutional is to decide in favor of its validity.” Juvenile courts do have criminal jurisdiction of adults, but “when an adult person is prosecuted in the juvenile court for a public offense against a child, the accusation must be made in conformity with the Criminal Code of Procedure.” Thus this very case they rely on recognizes that it is only in that class of cases that the accusing affidavit or indictment must be in strict and positive language.

This court in Dinson v. Drosta (1907) 39 Ind. App. 432, 80 N. E. 32, expressed an opinion that implies actions similar to this are not criminal actions. Later the court amplified its ideas, and in the well–considered case of Heber v. Drake (1918) 68 Ind. App. 448, 118 N. E. 864, recognized that proceedings under the Juvenile Court Act are special statutory proceedings.

All of the statutory enactments from the beginning to 1917 lead one to the inevitable conclusion that the sponsors and the legislators intended to get away from the highly technical criminal proceedings in all things relating solely to juveniles.

“It has been generally though not universally held that statutes creating courts having jurisdiction of juvenile offenders are in no sense criminal, and are not intended to provide punishment, but to save the child from becoming a criminal, and hence not unconstitutional, though they do not provide for trial by jury, or arraignment, or plea, or for notice to the person or a warrant of arrest, and do require the child to be a witness against himself.” This from Ruling Case Law (7 R. C. L. 981) shows the general trend.

Notwithstanding all this, the Legislature of 1917, in amending the Juvenile Act (Acts 1905, c. 145), after defining “delinquent child,” says in positive language: “Any boy under the full age of sixteen (16) years or any girl under the full age of eighteen (18) years who shall commit any of the acts herein specified shall be deemed a delinquent child and shall be proceeded against as such in the manner provided by law for the prosecution of persons charged with misdemeanors, and, upon conviction thereof, may be released on probation or may be dealt with by the court in such manner as may appear to be for the best interest of the child. (As amended, Acts 1917, c. 111, p. 341.)” Section 1695, Burns' Ann. St. 1926. (Our italics.)

Persons charged with misdemeanors are proceeded against on a specific affidavit or indictment; the contents and sufficiency being defined by statute and interpreted by a mass of decisions.

The affidavit was as follows: “State of Indiana, County of La Porte, SS. Lillian L. Hendricks being duly sworn upon her oath says that Amos Freestone is a male child under the full age of fourteen years and is a delinquent child within the meaning of the statute in such cases made and provided, in that he did on or about the 21st day of June, 1927, at said county and state then and there commit an act of delinquency by then and there unlawfully. Did pick the pockets of one John Kotouplaus while he was bathing on the Pine Lake Beach and steal a sum of money and keys. The said boy being on probation for one year for several offenses last year, contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Indiana. Lillian L. Hendricks. Subscribed and sworn to before me this 23 day of June, 1927. Othie Jack, Clerk, By Laura Zieke, Deputy. [Seal.]”

A true test of the sufficiency of an affidavit is, if the accused has done all of the things charged and yet be guiltless, the affidavit is fatally bad.

There is no statutory offense of pickpocketing, stealing, or violating probation by doing either of these things. It cannot be contended that this charges either petit or grand larceny. The facts...