R. Y., In re

Decision Date22 June 1971
Docket NumberNo. 8688,8688
Citation189 N.W.2d 644
PartiesIn the Matter of R. Y., Jr., a Person Alleged to be a Juvenile Delinquent. Civ. . Opinion
CourtNorth Dakota Supreme Court

Syllabus by the Court

1. Under North Dakota law proceedings in juvenile court are civil in nature and not criminal.

2. A child is not constitutionally entitled to a jury trial in a juvenile court proceeding on the issue of his delinquency.

3. The evidence has been examined and it is found that it sustains a finding of delinquency beyond a reasonable doubt.

Wattam, Vogel, Vogel & Peterson, Fargo, for R. Y., Jr., appellant.

Helgi Johanneson, Atty. Gen., Bismarck, and Russell D. Maring, Jack Marcil, Asst. State's Attys., Fargo, for respondent.

TEIGEN, Judge.

This is an appeal from a final order of the Cass County Juvenile Court which adjudicates R. Y., Jr., a delinquent child. The appeal is taken pursuant to Section 27--20--56, N.D.C.C.

The Cass County Juvenile Court found R. Y., Jr., had committed a delinquent act, designated as robbery in the first degree under the laws of this State, and that he is in need of treatment and rehabilitation. The court committed R. Y., Jr., to the North Dakota Industrial School for a period of two years pursuant to Section 27--20--36, N.D.C.C., but deferred execution of the commitment and placed him on conditional probation in the custody of his parents.

There are two major issues raised on this appeal. They are succinctly stated as follows: (1) Are our statutes, which give exclusive jurisdiction to the juvenile court in a delinquency proceeding against a child under the age of sixteen years and provide that the hearing shall be conducted by the juvenile court without a jury, violative of the Federal and State constitutions; and (2) Was the evidence sufficient to prove beyond a reasonable doubt that R. Y., Jr had committed the delinquent act alleged in the petition?

The petition charges that R. Y., Jr., together with two juvenile accomplices, committed the unlawful act of armed robbery which, under the law, constitutes robbery in the first degree, in that he took about $40 in money from the proprietor of a place of business by putting him in fear and striking him about the head and body with a blunt instrument.

Prior to the hearing R. Y., Jr., through his counsel, made three motions, each of which was denied by the court on statutory grounds. He moved for a dismissal of the proceedings on the ground that the juvenile court was without jurisdiction since the Juvenile Court Act deprives a child alleged to be a delinquent of his constitutional right to a jury trial. When this motion was denied, he moved that the case be transferred from the juvenile court to the district court for trial on a charge of robbery. Upon denial of this motion, he moved and asked for a jury trial in the juvenile court, which was denied. An adjudicatory hearing was held and, at the close of the evidence, R. Y., Jr., through his counsel, moved that the proceedings be dismissed on the grounds that the evidence was insufficient to identify R. Y., Jr., as a participant in the robbery and that the evidence was insufficient to find that he had committed the alleged act. This motion was also denied. At the close of the hearing the juvenile court found that the evidence established proof beyond a reasonable doubt that R. Y., Jr., had committed the acts, by reason of which he was alleged to be delinquent, and it then proceeded to hear evidence as to whether or not he was in need of treatment and rehabilitation. Subsequent thereto, the court issued the order from which this appeal is taken.

In 1969 the legislature of this state adopted the Uniform Juvenile Court Act (Ch. 27--20, N.D.C.C.) proposed by the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association in 1968. It repeals all of Chapter 27--16, N.D.C.C., which chapter provided for the juvenile court prior thereto and governed its procedure. This Act incorporates all of the essentials imposed on the juvenile courts by Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84, and In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527. In addition, Section 27--20--29, N.D.C.C., requires proof beyond a reasonable doubt that the child committed the acts by reason of which he is alleged to be delinquent, and thus complies with the requirements announced later in the case of In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (March 1970).

The constitutional attack in this case is focused upon Section 27--20--24(1), N.D.C.C. This section provides:

'Hearings under this chapter shall be conducted by the court without a jury, * * *'

It is argued that this section is violative of the Sixth Amendment to the United States Constitution, which provides:

'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed * * *';

and of Section 7 of the North Dakota Constitution, which provides:

'The right of trial by jury shall be secured to all, and remain inviolate; * * *'

R. Y., Jr., through his counsel, admits that the Supreme Court of the United States has not directly decided that a child alleged to be delinquent is entitled to a jury trial as a matter of right. However, he argues that the clear trend of its decisions is in that direction and that, on the basis of these decisions, this court should hold that a jury trial is required under these constitutional provisions where a child is alleged to be delinquent and faces the possibility of being committed to the North Dakota Industrial School for a period of two years.

In support of this argument counsel cites the following United States Supreme Court decisions. In re Gault, Supra; In re Winship, Supra; Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491, rehearing denied, 392 U.S. 947, 88 S.Ct. 2270, 20 L.Ed.2d 1412; Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522; and makes reference to In re Whittington, 391 U.S. 341, 88 S.Ct. 1507, 20 L.Ed.2d 625, and DeBacker v. Brainard, 396 U.S. 28, 90 S.Ct. 163, 24 L.Ed.2d 148.

Gault and Winship do not stand for the proposition that a jury trial is required in a delinquency proceeding. Duncan applied the jury trial provision by way of the Fourteenth Amendment's Due Process Clause to state criminal proceedings involving serious criminal offenses. It holds that a misdemeanor punishable up to two years imprisonment is a serious criminal offense. Bloom expands upon Duncan and holds that the Sixth Amendment's guarantee of a jury trial is applicable through the Fourteenth Amendment to the states to serious criminal contempts, and that when the state statute does not fix the maximum penalty the court will look to the penalty actually imposed as the best evident of the seriousness of the contempt charge.

In Whittington and DeBacker the United States Supreme Court had presented to it the issue of whether a child was denied his constitutional right to trial by jury in a juvenile court proceeding charging delinquency. The question was not decided in either case. In Whittington, the case was remanded to the Ohio court for consideration in light of Gault, which was decided some two months after the decision of the Ohio Supreme Court. In DeBacker, which was decided after the Duncan and Bloom cases, the Supreme Court refused to decide the issue because it had held in De Stefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308, that Duncan and Bloom 'should receive only prospective application', and stated that it would 'not reverse state convictions for failure to grant jury trial where trials began prior to May 20, 1968 * * *', which is the date of the court's decisions in Duncan and Bloom.

It appears that there are two cases pending before the United States Supreme Court in which a state supreme court decided that juveniles did not have a right to trial by jury in proceedings in which they were adjudged delinquent. These two cases are: In re Terry, 438 Pa. 339, 265 A.2d 350, cert. granted, McKeiver and Terry v. Pennsylvania, 399 U.S. 925, 90 S.Ct. 2271, 26 L.Ed.2d 791, argued on Dec. 9, 1970 (39 L.W. 3257); and In re Burrus, 275 N.C. 517, 169 S.E.2d 879, cert. granted, In re Barbara Burrus, et al, 397 U.S. 1036, 90 S.Ct. 1379, 25 L.Ed.2d 647, argument commenced Dec. 9, 1970, and concluded Dec. 10, 1970 (39 L.W. 3257.) It appears from the state decisions reported in these two cases that the question may now be squarely before the United States Supreme Court; however, we have no assurance that these decisions, when announced, will decide it. In view of this contingency, we will proceed to decide this case.

Under the common law there was no special judicial system for juveniles. Prior to the enactment of the various juvenile codes in the United States, most jurisdictions treated juveniles as adults in criminal proceedings and accorded them all of the privileges and rights as such. However, the legislature has the power to define what acts shall constitute criminal offenses and to fix the age of criminal responsibility. It also has the power to say that an act done by a child shall not constitute a crime or be punishable as such. The legislative assembly of the Territory of Dakota fixed the age of criminal responsibility and provided that every child under the age of seven years is conclusively presumed to be incapable of committing a crime, but that 'children of the age of seven years, but under the age of fourteen years, in the absence of proof that at the time of committing the act or neglect charged against them, they knew its wrongfulness' also are deemed incapable of committing a crime. Penal Code, Dakota Territory, 1877, Sec. 16(2). These statutory provisions are still retained in force. Section 12--02--01, N.D.C.C. ...

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