In re Wylie, 4022.

• Decision Date: 30 June 1967
• Docket Number: No. 4022.,4022.
• Citation: 231 A.2d 81
• Parties: In the Matter of Kenneth Lee WYLIE.
• Court: D.C. Court of Appeals

Page 81

231 A.2d 81

In the Matter of Kenneth Lee WYLIE.

No. 4022.

District of Columbia Court of Appeals.

Argued October 31, 1966.

Decided June 30, 1967.

Edmund E. Fleming, Washington, D. C., for appellant.

Robert C. Findlay, Asst. Corp. Counsel, with whom Charles T. Duncan, Corp. Counsel, Hubert B. Pair, Principal Asst. Corp. Counsel, and Richard W. Barton, Asst. Corp. Counsel, were on the brief, for appellee.

Before HOOD, Chief Judge, and QUINN and MYERS, Associate Judges.

HOOD, Chief Judge:

A petition was filed in the Juvenile Court charging that appellant, seventeen years of age, "in company with two unknown males, at about 4:15 A.M., on June 6, 1965, at 14th and R Streets, N. W., in the District of Columbia approached Henry James Jackson, age 13, and struck him in the left eye then grabbed him and asked him for his money." Trial by jury resulted in a verdict that appellant was "involved" and he was committed to the National Training School.

This appeal raises numerous claims of error. Shortly after oral argument here, the Supreme Court of the United States heard argument in Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), and since at least one of the issues there was identical with one here, we deferred our ruling until Gault was decided.

In Gault it was held that in a proceeding against a juvenile, written notice should be given "of the specific charge or factual allegations to be considered at the hearing" (id. at 33, 87 S.Ct. at 1446), and that there must be timely notice "of the specific issues" to be met. (Id. at 34, 87 S.Ct. 1428.) Appellant claims that the petition here was too vague and indefinite to allow him to understand it and to intelligently defend against it. Guided by the ruling in Gault, we agree with appellant.

The allegations of the petition could be construed as charging that appellant violated our law of robbery, or of attempted robbery, or of assault, or that he was charged with violating all three laws.¹ It is clear that the evidence did not support the allegations in all respects.

The testimony of the complaining witness was that while delivering papers in the early hours of Sunday morning, he was stopped by "three or four" older boys, one of whom asked for a dime. Another then asked for all his money. Complainant ran to an alley, looked back and saw appellant following him; then complainant ran to a telephone building where a security guard was stationed. Appellant caught up with complainant at the building and began "pulling on" him. A police cruiser happened upon the scene and one officer saw appellant "having the complainant up against the wall wrestling." Appellant ran away but was captured by the officer.

Appellant testified that he intervened with the other boys to prevent them from taking complainant's money, and pursued complainant because he saw the boy was upset and wished to calm him down. Appellant testified that when he saw the police, he "panicked and ran."

It will be observed there was no testimony whatever to support the allegation that appellant, or anyone else, struck complainant in the eye. Likewise there was no testimony that appellant asked or demanded money from complainant.

Viewing the allegations of the petition and the testimony, it is difficult, if not impossible, to determine with accuracy the specific charge or charges against appellant. No one at trial appeared willing to state the charge with specificity. In closing argument to the jury the corporation counsel stated the issue to be whether appellant was "involved in this law violation." Defense counsel stated that the charge was "in the nature of a law violation of attempted robbery."

The court, however, indicated a different view of the petition. In its charge to the jury the court stated that the petition alleged that appellant approached the complainant, "grabbed him and asked him for some money." Later in its charge, the court told the jury it was their duty to determine whether appellant "did commit the law violation set forth in the petition." Further in its charge, the court told the jury the burden was on the government to prove that appellant "participated in or committed the alleged act of delinquency."

Evidently the court was of the impression that the specific charge against appellant was assault because toward the conclusion of the charge to the jury the court gave an instruction on assault and stated the burden was on the government to prove that appellant "committed the alleged offense." Upon completion of the charge the court inquired whether there were any additional instructions. After conference with counsel, and apparently at the instance of appellant's counsel, the jury was instructed on robbery and attempted robbery.

The result apparently was that three issues were submitted to the jury, namely, assault, robbery and attempted robbery, but at no time was the jury instructed that it should consider the three issues separately and return verdicts as to each issue. If, as was held in Gault, appellant was entitled to notice of the specific issues, it must follow that the jury should have been expressly instructed with respect to the specific issues.

To add to the confusion, the jury was instructed that in the Juvenile Court a child could not be charged with or convicted of any crime, and for that reason its verdict should be either "involved as alleged or not involved, rather than the customary verdict of guilty or not guilty." No other explanation of the term "involved" was given. The jury returned a single...