State in Interest of Tyler, In re

• Decision Date: 16 May 1972
• Docket Number: No. 4810,4810
• Parties: In re STATE of Louisiana In the Interest of Jerry TYLER.
• Court: Court of Appeal of Louisiana — District of US

Page 815

262 So.2d 815

In re STATE of Louisiana In the Interest of Jerry TYLER.

No. 4810.

Court of Appeal of Louisiana, Fourth Circuit.

May 16, 1972.

Rehearing Denied June 20, 1972.

James Burnett Aime, Asst. Dist. Atty., Parish of Orleans, Juvenile Div., for appellee.

Debra A. Millenson, New Orleans, for appellant.

Before SAMUEL, GULOTTA and STOULIG, JJ.

STOULIG, Judge.

This is an appeal from a decree of the juvenile court adjudging Jerry Tyler, a 16-year-old minor, to be a delinquent child under the provisions of LSA-R.S. 13:1570(A)(5). More specifically, the juvenile judge found that the minor did violate LSA-R.S. 14:35 by committing a simple battery by kicking and punching Detectives Israel Fields and Melvin Howard about their bodies without their consent. The incident occurred on September 14, 1970, about 8:30 p.m., at 3542 Piety Street in the City of New Orleans.

Appellant urges various objections to the validity of the adjudication. The first specification of error is that the juvenile court refused to quash the petition of delinquency absent a prior investigative hearing by the probation department. Such a hearing is alleged to be required prior to the filing of a petition under LSA-R.S. 13:1574, which provides:

'Whenever any person informs the court that a child is within the purview of R.S. 13:1561 through 13:1592, the court shall make a preliminary inquiry to determine whether the interests of the public or of the child require that further action to taken. Thereupon the court may make such informal adjustment as is practicable without a petition, or may authorize a petition to be filed by any person. * * *'

A careful reading of this statute reveals that 'a preliminary inquiry' is necessary but not an 'investigative hearing' as suggested by appellant. The purpose of the inquiry is for the court to determine if a justifiable basis exists for the filing of a petition in the interest of a juvenile.

The record does not evidence that a preliminary inquiry of the complaint was made by the probation department before the filing of the instant petition. However, during the course of argument, it was conceded that on prior occasions complaints against Jerry Tyler had been lodged with the juvenile court for appropriate action. In processing these previous offenses a preliminary inquiry and a social history were made by the probation department. We are of the opinion that this investigation if sufficient to satisfy the provisions of LSA-R.S. 13:1574, which prescribes that a preliminary inquiry shall be made prior to making an informal adjustment or authorizing the filing of a petition in connection with a charge of delinquency.

The appellant maintains that the juvenile court erred in ruling that the Louisiana Code of Criminal Procedure was not applicable in refusing to quash the petition of delinquency.

The thrust of the motion to quash is two-fold: first, that it improperly sets forth two separate offenses of simple battery in the one petition, which is in contravention of LSA-C.Cr.P. art. 493, ¹ and also constitutes duplicity under LSA-C.Cr.P. art. 491; ² and secondly, that under LSA-R.S. 13:1574 a preliminary hearing is a mandatory prerequisite to the filing of a petition for delinquency.

We have already disposed of the second contention and will concern ourselves with the first. In support of her position that the Code of Criminal Procedure is controlling in the instant proceeding, counsel relies upon LSA-C.Cr.P. art. 15, which, in pertinent part, reads:

'A. The provisions of this Code, except as otherwise specially provided by other statutes, shall govern and regulate the procedure in criminal prosecutions and proceedings in district courts. They also shall govern Criminal prosecutions in city, parish, juvenile, and family courts, except insofar as a particular provision is incompatible with the general nature and organization of, or special procedures established or authorized by law for, those courts.' (Emphasis ours.)

This article recites it is applicable to 'criminal prosecutions' in juvenile court, however, the matter before us is not a prosecution but a hearing to adjudge delinquency.

The terminology of the statute by use of the words 'criminal prosecutions' convinces us that Article 15 relates to the trial of Adults by the juvenile court rather than juvenile proceedings. Additionally, LSA-R.S. 13: 1573 lends further support to this conclusion in that it specifically provides:

'In the trial of adults coming within the jurisdiction of the juvenile court, the proceeding shall be in the the same manner and subject ot the same rules of procedure, evidence, etc., as the trial of an adult on a misdemeanor charge in any other court of criminal jurisdiction * * *.'

By its very terms Article 15 is rendered inoperative when there are special procedures authorized by statute for these courts. LSA-R.S. 13:1574 provides for such a special procedure in that it authorizes the filing of a delinquency proceeding in the juvenile court by means of a petition. It therefore follows LSA-C.Cr.P. art. 493 relative to misjoinder of offenses in an indictment cannot be asserted to quash the allegations of a petition. We conclude that the motion to quash was properly denied.

Appellant argues the battery charges were not proven beyond a reasonable doubt. That argument is answered by the contention this appeal is only on the law and, alternatively, that the trial court's findings of fact are correct. The disposition of this assignment of error requires a consideration of our appellate authority.

Article 7, Section 29 of the Constitution ³ ordains the Courts of Appeal shall have appellate jurisdiction of matters appealed from the juvenile court except criminal prosecutions against persons other than juveniles. Our appellate review shall be on both law and facts except as otherwise limited by the Constitution to questions of law.

One of the exceptions is embodied in LSA-Const. Art. 7, § 96 ⁴ relative to cases emanating from the Juvenile Court of Orleans Parish, that appeals on both law and fact lie from awards of custody of a juvenile and in adoption proceedings; however, in all other matters it is restricted solely to questions of law. A similar provision is incorporated in LSA-R.S. 13:1591 and made applicable to all juvenile courts throughout the State.

Thus, under the foregoing constitutional provisions, since an adjudication of delinquency involves the custody of the juvenile, our appellate review is on questions of both law and fact. Further, relating our jurisdiction to the particular issue ...