State v. Reister, 7621

• Decision Date: 18 December 1956
• Docket Number: No. 7621,7621
• Citation: 80 N.W.2d 114
• Parties: STATE of North Dakota, Plaintiff and Respondent, v. Walter REISTER, a minor, and Fred Reister, father, and Ann Reister, mother, Defendants and Appellants.
• Court: North Dakota Supreme Court

Page 114

80 N.W.2d 114

STATE of North Dakota, Plaintiff and Respondent, v. Walter REISTER, a minor, and Fred Reister, father, and Ann Reister, mother, Defendants and Appellants.

No. 7621.

Supreme Court of North Dakota.

Dec. 18, 1956.

Syllabus by the Court

1. Under the provisions of Section 27-1610 NDRC 1943 delinquent children are declared to be wards of the state for the purposes of the juvenile law and may be made subject to the continuing jurisdiction of the juvenile court.

2. The record in this case is examined and for reasons stated in the opinion it is held that the juvenile court was warranted in entering an order committing the sixteen year old boy involved herein to the State Training School until he becomes twenty-one years old and appointing the superintendent of the training school as guardian of his person.

3. Where upon a trial de novo of a juvenile matter the judge heard the evidence in open court, announced his decision and his reason therefor and upon retirement to his chambers interrogated interested parties without the defendants or their counsel being present, it clearly appearing that the interrogation in chambers being made after the court's decision had no effect upon it, the record made of such interrogation will not be considered by this court on trial de novo.

William L. Paulson, Valley City, for defendants and appellants.

M. C. Fredricks, State's Atty. for Stutsman County, Jamestown, for plaintiff and respondent.

MORRIS, Judge.

This is an appeal from an order of the juvenile court of Stutsman County entered October 25, 1955, committing Walter Reister, a child sixteen years of age, to the State Training School at Mandan, North Dakota, until he becomes twenty-one years old and appointing the superintendent of the training school as the guardian of his person.

On May 9, 1955, proceedings were instituted in the juvenile court by George Burchill, juvenile commissioner of the Fourth Judicial District, charging Walter Reister with being a delinquent and neglected child. Summons was issued to Walter Reister, his father Fred Reister, and his mother Ann Reister, all of whom forthwith appeared in the juvenile court and a hearing was had before Honorable H. E. Rittgers, District Judge, acting as juvenile judge, which resulted in an order taking Walter into custody of the court as a juvenile delinquent and paroling him to his father. The transcript of the evidence taken at that hearing discloses that the basis of the court's action was several thefts. It also appeared that Walter did poorly in school; that he did not profitably employ his spare time, was prone to fall into the company of companions who had a bad influence upon him; that he was untruthful and lacked proper parental supervision and discipline.

By its order the court took jurisdiction of Walter as a ward of the state for the purposes of the juvenile law. Section 27-1610, NDRC 1943. No appeal has been taken from that order. By the order the court acquired continuing jurisdiction over the person of the child. Section 27-1620, NDRC 1943.

On October 25, 1955, Walter Reister, his father, and his mother again appeared before the juvenile court pursuant to a notice previously served upon them. They were accompanied and represented by an attorney. A hearing was had which resulted in the order committing Walter Reister to the State Training School, from which this appeal is taken. A trial de novo in this court has been demanded. At that hearing Walter Reister was accused of acts amounting to the taking of indecent liberties with the persons of individuals under the age of eighteen years, which is made a felony by Section 12-3011, NDRC 1953 Supp. Involved in the episode were three young children, two of them, P and C, about five and four years of age respectively, were sister and brother. These two children, together with another little girl, M, five years of age, were in the charge of a baby sitter while their mothers were at work on the afternoon of October 11, 1955. We have substituted letters for the names of the children. They obtained permission from the sitter to go and play with another little girl in the neighborhood. The baby sitter, a married woman, testified without objection that in a short time they came home and P came to the door and said: 'C wants to go to the store.' C is the little boy. The testimony then continues:

'I said, 'Where is C?' and She said, 'He is outside,' so I called him and he came and I said, 'What is it you are going to do?' He said, 'I want to go to the store.' 'C,' I said, 'That is our because you know you don't go to the store unless I am with you. What do you want at the store, we were there just the other day?' He said, 'Well, I've got a penny.' Naturally, I got curious. I said, 'You hadn't any money when you came this morning?' He said, 'No.' I said, 'Where did you get it?' The girls spoke and said, 'We got some money too.' So, I said to the girls, 'Where did you get the money?' C spoke up and said, 'The big Reister boy called us over and asked us to come over into the garage.' So, I said to C, 'I have told you you couldn't play there because there are no playmates there.' So, he said, 'Well, but he called us over and we went.' I said to the girls, 'Did you go?' They said, 'Yes.' I said, 'All right, how did you get the money?' C said, 'The big Reister boy made us take down our pants.' I said, 'Now, C, are you sure? He didn't.' C said, 'You are lying; he did.' I said, 'I am not lying, C, I am only asking you and I want you to tell the truth, and I don't want you to lie.' So the girls spoke up and said, 'He did. It is true.' So, I went about it in a roundabout way, and I said to C, how much money do you have, and he said, 'A penny.' I said to P, 'Let's see yours.' She had a nickel. So, I said, 'Why, P, how do you rate, a nickel? Tell me how you got the nickel; maybe I can go and get a nickel.' So, she said, 'Well,' she said, 'he made me take down my pants and then he went down there and played,' and she showed me, and I said, 'P, are you sure?' I said, 'You know what God will do if we lie?' She said, 'Well, he did, I am not lying.' So I said, 'Well, you had better come in the house for the rest of the day."

The baby sitter told the mothers of the children what had happened and upon being asked the children told their monthers the same story that they had told the sitter. As soon as the little girl, M, was taken home that evening she related to her mother substantially the same facts that the children had told the baby sitter. There was no objection to the mothers' testimony. The interrogations upon direct examination were made by the court. Counsel for the defendant was permitted to cross-examine these witnesses. This cross-examination discloses that in questioning the children the mothers did not suggest the...