State v. Shardell

• Decision Date: 30 October 1958
• Citation: 153 N.E.2d 510,107 Ohio App. 338
• Parties: , 79 Ohio Law Abs. 534, 8 O.O.2d 262 STATE of Ohio, Plaintiff-Appellee, v. Gary SHARDELL, Defendant-Appellant.
• Court: Ohio Court of Appeals

Page 338

107 Ohio App. 338

153 N.E.2d 510, 79 Ohio Law Abs. 534, 8 O.O.2d 262

STATE of Ohio, Plaintiff-Appellee, v. Gary SHARDELL, Defendant-Appellant.

Court of Appeals of Ohio, Cuyahoga County, Eighth District.

Oct. 30, 1958.

Paynter & Green, Cleveland, Richard Green, Cleveland, of counsel, for defendant-appellant.

John T. Corrigan, County Prosecutor, Margaret Spellacy, Asst. County Prosecutor, Cleyeland, for plaintiff-appellee.

KOVACHY, Judge.

This cause is before us on an appeal on questions of law from a judgment of the Juvenile Court of Cuyahoga County wherein the defendant, Gary Shardell, a boy of sixteen, was found to be a delinquent child and placed on probation with orders 'not to associate with his co-delinquents'. The record discloses that Gary had moved into a new neighborhood where he met new friends, two of whom met with him one evening in the basement of his home and discussed the subject of breaking and entering homes. Gary thought that a home in his former neighborhood would be a good place to break into and drew a diagram of it for the boys. These two boys thereupon left with intentions to seek out the home and upon arriving there found the occupants at home. They, thereupon, selected three other homes a few blocks beyond it which they entered and from which they stole $90.00 in cash. They then returned to Gary's home and reported what they had done. Gary told them that he had an alibi for them since they could say that they had been in his basement during all this time. The next day Gary went with one of the boys to get the money hidden in a churchyard. This they took back to Gary's home. Upon looking the money over, Gary noted some coins that he thought would be a valuable addition to his coin collection and appropriated $5.00 worth, which he exchanged for his own money. The money had been in a metal box. It was transferred into pingpong boxes furnished by Gary. The metal box which had been stolen from one of the homes remained in the possession of Gary. Gary, in his conversation with one of the police officers, admitted that he knew that these boys had previously broken into a barber shop and also that he had accompanied them to help dispose of two guns taken during the time of the burglary of this barber shop. In his conversation with the probation officer of Juvenile Court, he stated, however, that he thought the boys were only 'joking' about breaking into the homes and that the money was the proceeds of paper routes which one of the boys and his brother pursued. The record also shows that Gary had an Intelligence Quotient above the average.

The petition filed in the Juvenile Court charged Gary Shardell with unlawfully conspiring with other minors to break into and enter a home; that the other minors did break into and enter a home in the night season and did steal and carry away $90.00, a target pistol and a strong box; that the stolen property was taken to Gary Shardell's home; that Gary furnished two containers and retained the strong box; and that Gary received $5.00 in old coins, knowing the same to be stolen.

The six assignments of error can be consolidated into three as follows:

1. That the finding of delinquency was manifestly against the weight of the evidence;

2. That the defendant was prejudiced through the admission of hearsay evidence; and

3. That the constitutional rights of the defendant were violated by compelling him to testify.

The Legislature of Ohio in Section 2151.35 of the Revised Code, inter alia, provided that hearings in Juvenile Court may be conducted in an informal manner; that the court shall permit a child to be represented by an attorney-at-law during any hearing before it; that the court shall hear and determine all cases of children without a jury; that the judgment rendered by the court shall not impose any of the civil disabilities ordinarily imposed by conviction, in that the child is not a criminal by reason of such adjudication; that the disposition 'of a child under the judgment rendered or any evidence given in the court shall not be admissible as evidence against the child in any other case or proceeding in any other court, except that the judgment rendered and the disposition of such child may be considered by any court only as to the matter of sentence or to the granting of probation. Such disposition or evidence shall not operate to disqualify a child in any future civil service examination, appointment, or application.'

Section 2151.02 of the Revised Code of Ohio, in part, defines a delinquent child to be a child '(a) Who violates any law of this state * * *.'

Defendant-appellant herein maintains that since, in effect, he is charged with a crime, a felony if he were an adult, and since such violation is the sole basis upon which he was found to be a delinquent child, the proof of guilt should be beyond a reasonable doubt. With this contention we do not agree. The philosophy of the state, as declared in the sections above stated, is not to consider the child, althouhg in violation of law, a criminal but rather to take him in hand for the purpose of protecting him from evil influences. The state thus becomes the parens patriae of the child on the theory that he needs protection, care and training as a substitute for parental authority that has broken down and failed to function. The proceedings instituted in a Juvenile Court, therefore, are not criminal in nature nor are they conducted with the object of convicting the minor of a crime and punishing him therefor. It is an informal hearing through the medium of Juvenile Court to determine whether the child needs intervention of the state as guardian and protector of his person. This is obviously to do away with the usual and customary ceremony and procedure of a court trial in order to surround the child with an atmosphere of friendliness and good-will rather than one of hostility and faultfinding. It is thus proper for the judge to carry on a conversational type of investigation which is more conducive to eliciting the truth and arriving at an impartial, fair and more acceptable solution of the problem of the child involved.

It is stated in State v. Scholl, 167 Wis. 504, 167 N.W. 830, 832, 43 A.L.R.2d 1146 as follows:

'The desideratum is to obtain, by the use of kindness and sympathy, the confidence of the child and of its parents if possible to convince them that the judge and probation officer are friends and not the avengers of offended law. Good results are far more likely to be obtained in this way by the use of informal methods than by bringing them into a court conducted with the form and ceremony attendant upon trials for crime, where all the proceedings suggest that the law is about to be invoked to inflict punishment upon hardened malefactors.'

We conceive the procedure to be civil rather than criminal in nature and to carry with it the juridical connotations of a civil action. That being so, a mere preponderance of the evidence, in our opinion, is sufficient to warrant the finding of a minor to be a delinquent even though such determination involves the finding that a criminal statute of the state had been violated by the minor. The Supreme Court of Texas in ...