Laurie v. State
| Decision Date | 28 March 1922 |
| Docket Number | 22402 |
| Citation | 188 N.W. 110,108 Neb. 239 |
| Parties | ALTON LAURIE v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Hamilton county: EDWARD E. GOOD JUDGE. Affirmed.
Affirmed.
Roscoe R. Smith and J. H. Grosvenor, for plaintiff in error.
Clarence A. Davis, Attorney General, and Mason Wheeler, contra.
Heard before MORRISSEY, C. J., ROSE, ALDRICH and FLANSBURG, JJ DICKSON and STAUFFER, District Judges.
This is a proceeding in error from the district court for Hamilton county. From the record it appears that the county attorney filed a complaint under the juvenile court act against the plaintiff in error, a boy 15 years of age, in the county court of that county. Upon this complaint, process issued, and the boy and his parents appeared in court. Later, an amended complaint was filed. To this, as well as to the original complaint, a plea of not guilty was entered, and after a hearing the boy was, by the county court, found to be a fit subject for commitment to the state industrial school, and from the order of commitment an appeal was taken to the district court, where the county attorney filed a petition in which it was charged that the plaintiff in error, Alton Laurie, was a minor under 16 years of age, and that "said Alton Laurie is growing up under such circumstances as would tend to cause such child to lead a vicious and immoral life; that for lack of proper control he is growing up in delinquency and crime; that he is an habitual truant; that he is incorrigible; that he habitually uses obscene, profane and indecent language; that on or about February 14, 1921, and at various times during the present school year, he was guilty of immoral conduct in and about a schoolhouse in Aurora, Hamilton county, Nebraska; that on or about March 18, 1921, he was guilty of immoral conduct in a public place, to wit, on the public highways in said county; that although under 18 years of age he habitually smokes cigarettes; that although under 16 years of age he has repeatedly been guilty of operating a motor car upon the highways of this county in defiance of law and of his parents' wishes." A trial by jury was demanded and refused, and, after a hearing and trial, the court found that the boy was "a fit subject for commitment to the state industrial school at Kearney, Nebraska," and "that said minor is growing up in delinquency and crime, and under such circumstances as would tend to cause him to lead a vicious and immoral life," and ordered his commitment to the superintendent of the state industrial school for boys at Kearney. A motion for a new trial was filed and overruled, and, from the judgment committing the boy to the industrial school, he prosecutes error to this court.
Plaintiff in error assigns many reasons why the judgment committing him to the industrial school should be set aside and a new trial granted, all of which we have carefully examined and considered.
It is contended by plaintiff in error that the court erred in denying him a trial by jury. This involves an examination of the juvenile court act, and, in principle, the case of Bell v. State, 104 Neb. 203, 176 N.W. 544, is decisive of the question. But in view of some of the provisions of the juvenile court act, and it being a new question, we deem it advisable to give consideration to the petition and its legal effect.
The act itself makes no provision for a trial by jury except where a delinquent child is charged with a crime. The complaint was intended to charge, and did charge, the boy with being a dependent, neglected and delinquent child. Dependent and neglected in this; that said Alton Laurie was growing up under such circumstances as would tend to cause such child to lead a vicious and immoral life; that, for lack of proper control, he was growing up in delinquency and crime, delinquent in this, that he is an habitual truant and incorrigible; that he has violated the laws of the state; that he habitually uses profane, obscene and indecent language; that he is guilty of immoral conduct in and about a schoolhouse and on the public highway; that he habitually smokes cigarettes and was repeatedly guilty of operating a motor car in violation of law. It is evident the specific charges in the complaint of law violation were not made with the intention of charging him with crime, but to set forth and state the facts showing him to be a dependent, neglected and delinquent child. The statute defines dependent, neglected and delinquent children, and to bring the case within the statutory provision, it was necessary to make these allegations, and without such, or similar allegations, the petition would be subject to attack. It is not enough that the petition charge that the boy was a dependent, neglected and delinquent child, but it must go farther and set forth facts showing that he was such a child, and until such a petition was filed he would be uninformed of what he would have to meet. The petition in such cases must inform the defendant of the charge he is to meet, to enable him to prepare for his trial. And an examination of the petition brings us to the irresistible conclusion that the charge against the boy was that of delinquency. A commitment to the industrial school upon such a charge is not a conviction of a crime, or a commitment to a penal institution. This question of a right of trial by jury was before the supreme court of Wisconsin in Wisconsin Industrial School for Girls v. Clark County, 103 Wis. 651, 79 N.W. 422. The following is paragraph 5 of the syllabus in that case:
"The commitment of a child to an industrial school corporation, not as a punishment for crime, but to furnish the child needed guardianship, maintenance, and care for its benefit and that of society, is not an interference with personal liberty requiring a trial by jury to justify it."
Judge Marshall, in discussing the question of the right of a trial by jury and the object and purposes of the law, says in his opinion:
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