McClintock v. State, 1068
| Decision Date | 17 December 1969 |
| Docket Number | No. 1068,1068 |
| Citation | 253 Ind. 333,253 N.E.2d 233 |
| Parties | Debra McCLINTOCK, Appellant, v. STATE of Indiana, Appellee. S 171. |
| Court | Indiana Supreme Court |
Theodore L. Sendak, Atty. Gen. of Indiana, Robert F. Hassett, Curtis C. Plopper, Deputy Attys. Gen., Indianapolis, for appellee.
Appellant was charged by verified petition filed in the above named court with being a delinquent child. The court, after hearing, found that appellant had committed an act of delinquency, that she was fifteen years of age, and ordered her committed to the Indiana Girls School until she reached the age of twenty-one years. The special judge then suspended said order of commitment, placed appellant on probation, ordered her placed in the custody of her grandfather The verified petition involving appellant was filed November 1, 1967, in the office of the Clerk of the Hamilton Circuit Court and reads in pertinent part as follows:
until June 6, 1968, then in the custody of her brother and ordered appellant's father to pay support for her. It is from this finding and judgment this appeal stems.
IN THE JUVENILE COURT OF HAMILTON COUNTY
In the Matter of Debra
McClintock a child under eighteen years of age.
J 3--151
To the Judge of the Juvenile Court of Hamilton County, Indiana.
Your petitioner, the undersigned Frances McCory respectfully represents to the court as follows:
To-Wit: Delinquent child.
WHEREFORE, your petitioner prays that summons issue to said child Debra McClintock, and to the said Parents Thomas & Jeanne McClintock requiring them to appear before the Hamilton County Juvenile Court, or the Judge thereof, and show cause why said child _ _ should not be dealt with pursuant to the laws of the State of Indiana; and that the Court shall hear and determine the matter herein set forth and shall enter such judgment and orders as the Court may deem best and as will best serve the welfare of said child _ _.
Subscribed and sworn to before me this 1 day of November, 1967.
My Commission expires:
12--31--67
Roland Guilkey
Clerk'
Trial was had, without formal reply to the petition, on the issues raised thereby. In the absence of a formal pleading to the petition, we treat the matter in the same manner as if a defendant in a criminal cause stands mute, in which case he is considered to have entered a plea of not guilty. In the instant case it is considered that appellant denied the averments of the petition and the State had the burden of proving the charges embodied in the petition.
At the conclusion of the evidence on the hearing there was filed on behalf of appellant 'Comes now Juvenile herein, by counsel, and hearing on said cause being had, now moves the Court to dismiss said cause and for discharge of said Juvenile for the following reasons:
on March 11, 1968, a motion to dismiss the cause and for the discharge of appellant. Such motion, omitting heading and signature, reads as follows:
I. The there is insufficient evidence to sustain the allegation that the Juvenile herein is a delinquent child.
II. That the Hamilton Juvenile Court is without jurisdiction over the person of the Juvenile, and any finding by the Court in above cause as to the Juvenile herein being a delinquent child is contrary to law.
Attorney for Juvenile
MEMORANDUMI. THERE IS INSUFFICIENT EVIDENCE DENCE TO SUSTAIN ALLEGATION THAT JUVENILE HEREIN IS A DELINQUENT CHILD.
The Prosecuting Attorney offered evidence by one Glen Shrock, State Trooper, that the Juvenile herein gave a written statement after being apprehended in Hamilton County, which statement was given after the Juvenile was duly warned and advised as to her legal rights concerning the giving of such statement. It was shown that at the time of such warning by the State Policeman, there were present the Juvenile, another juvenile, and three officers, including the witness, Glen Shrock. It was further shown that the parents of the Juvenile were not notified by anyone as to the apprehension of said Juvenile; that the parents were not present at the time of such warning and advising of said Juvenile person prior to her giving any statement; it was further shown that no one was present, other than law officers, to give counsel or advice to said Juvenile; and that she was 14 years of age;
It is therefore submitted that the Juvenile herein was legally incapable of waiving her rights, and that any statement, oral or written, which she may have given to the police, was illegally and unlawfully obtained, and the objection by Juvenile's counsel to admission of such statement should have been sustained and such written statement and testimony of officers concerning any oral statement given by the Juvenile should have been suppressed.
It is further submitted that the Prosecuting Attorney having failed to offer any other evidence as to any acts committed by the Juvenile herein, upon which a finding could be made, that said Juvenile was a delinquent child, therefore the Court because of failure of proof of allegations in said petition should find that there was no evidence to sustain the charge and the charge against the Juvenile should be dismissed.
II. THE HAMILTON JUVENILE COURT IS WITHOUT JURISDICTION OVER THE PERSON OF THE JUVENILE HEREIN, AND ANY FINDING BY THIS COURT IN ABOVE CAUSE AS TO THE JUVENILE HEREIN BEING A DELINQUENT CHILD IS CONTRARY TO LAW.
Under Burns Ind.Stat. 9--201 it is stated that an action shall be tried in the county in which the offense was committed.
The evidence submitted in above cause was to the effect that a certain automobile was stolen in Marion County, Indiana, and that the automobile was recovered in Hamilton County, Indiana.
If a theft is committed and property is taken into another county the Prosecution for the theft will not lie in the latter county. See Martin v. State, 176 Ind. 317, 95 N.E. 1001.
Failure to prove the venue in a criminal cause is fatal, such proof is necessary to show jurisdiction of the Court to try and determine the issue. See Strickland v. State, 217 Ind. 588, 29 N.E.2d 950.
Although it is conceded that the matter herein is not a criminal matter as such, however it appears that it would be required to show that the juvenile herein was within the County or residing in the County when the alleged act charging the Juvenile with being a delinquent child occurred. See Burns Ind.Stat. 9--3208.
The testimony of officer Boots, Conservation Officer, was to the effect that he saw the Juvenile herein as a passenger in an automobile in Hamilton County, which automobile was allegedly stolen from Marion County, Indiana, some time prior to the seeing of the Juvenile herein in said car. There was no evidence offered to show that the Juvenile herein had taken the automobile from Marion County; that she was present at the time said automobile was stolen; that she was ever in possession of said automobile; that she ever had control of said automobile; that she in any way participated in the alleged crime which allegedly occurred in Marion County, Indiana or participated in any alleged crime or act which if committed by an adult would be a crime in Hamilton County, Indiana.
It is therefore submitted that the Prosecuting Attorney, having failed to show that Juvenile herein committed any act, in Hamilton County, Indiana, which might be a crime if committed by an adult, or any act in said county by which Juvenile could be deemed to be a delinquent child, therefore the Hamilton Juvenile Court is without jurisdiction to make any finding as to the juvenile being a delinquent child and any such finding would be contrary to law.'
Thereafter, on May 29, 1968, the following proceedings were had:
'Comes now Debra McClintock, Juvenile, in person and by counsel and comes also the State of Indiana by the Deputy Prosecuting Attorney and this cause having heretofore been submitted for hearing on a petition alleging juvenile delinquency and said juvenile by counsel having subsequently filed her motion to dismiss and motion for discharge, the Court now overrules said juvenile's motion to dismiss and her motion for discharge.
And the Court now being duly advised enters its finding and judgment that the allegations of said petition charging delinquency are true and that Debra McClintock has committed an act of delinquency.
And the Court now on its finding and judgment further finds that Debra McClintock is 15 years of age and now orders that Debra McClintock be committed to the Indiana State Girls School until she reaches 21 years of age.
And the Court now suspends said order of commitment and places Debra McClintock on probation, the condition of such probation being that if said Debra McClintock commits any further acts of delinquency or violates any laws, the commitment hereby suspended will be ordered executed.
WHEREAS, the said Debra McClintock, presently a ward of Marion Juvenile Court, it is now ordered that her custody remain with her maternal grandfather, John Kennedy until June 6, 1968, and that thereafter her custody be given to her brother, Gary L. Dooley, until further order of this Court.
IT IS FURTHER ORDERED by the Court that Thomas A. McClintock, father of said juvenile, shall pay all costs of transportation of said juvenile to and from Chicago, Illinois and in addition, shall pay to Gary L. Dooley, the sum of Thirty ($30.00) Dollars per week beginning June 7, 1968, and each week ALL OF WHICH IS ORDERED, ADJUDGED AND DECREED by the Court this 29th day of May, 1968.'
thereafter as and for support of said juvenile.
On June 24, 1968, appellant filed a Motion For New Trial containing two...
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