T------G------, In re, In Interest of
| Citation | 455 S.W.2d 3 |
| Decision Date | 26 May 1970 |
| Docket Number | G--,T---,J,G---,No. 33333,33333 |
| Parties | In the Interest ofr., a child under seventeen years of age. STATE of Missouri, Plaintiff-Respondent, v. Jr., bySr., Natural Guardian, Defendant- Appellant. |
| Court | Court of Appeal of Missouri (US) |
Vernon C. Oetting, Earnest L. Keathley, St. Louis, for defendant-appellant.
Brendan Ryan, Circuit Atty., John J. Bantle, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
WEIER, Commissioner.
T--- G---, Jr., was found by the juvenile court to be under the age of 17 years and within the provisions of Section 211.031, RSMo 1959, V.A.M.S. The court determined the behavior, environment and association of the child were injurious to his welfare and to the welfare of others as described in subsection 1(c) of this section. The court further found that the juvenile had committed an act of voluntary manslaughter, and that the act was not done in lawful self defense. This squarely placed him under the terms of subsection 1(d) in that he was adjudged to have violated a state law. These findings and adjudication of delinquency were contained in a formal judgment entered in the records of the court on January 24, 1968, after a hearing that lasted two days. The child was represented by counsel and the trial was attended by his parents. At the conclusion of this hearing as to culpability and after rendering the judgment indicated, the court continued the cause for disposition pending the completion of a social investigation.
Thereafter, on March 25, 1968, the court conducted a dispositional hearing. Again the child, his parents and counsel were present and evidence was submitted to the court. At the conclusion of the hearing, the court ordered the child committed to the State Training School for Boys (Sec. 211.181, Sec. 219.160, RSMo 1959, V.A.M.S.).
A motion to vacate and set aside the judgment and for an order directing acquittal and discharge of defendant, or in the alternative for a new trial was filed April 8, 1968. On April 11, 1968, the court denied the motion. Previously the child had been denied supersedeas bond and had been committed to the State Board of Training Schools for an indeterminate period after the dispositional hearing on March 25, 1968.
Notice of appeal was filed April 29, 1968. It states that the appeal is taken from the judgment of the court entered March 25, 1968, finding that the child violated Section 211.031, subsection 1(d), in being delinquent by reason of voluntary manslaughter. But the judgment of March 25, 1968, contains no finding or determination of culpability. Rather, it is the judgment of January 24, 1968, that so finds.
We are immediately confronted with a question as to our jurisdiction on appeal. Since the appeal was not taken within thirty days after the determination of culpability on January 24, 1968, can we now entertain an appeal which though taken from the dispositional judgment of March 25, 1968, has as its only issue the question as to whether there was sufficient substantial evidence in the record to establish culpability? Even though our jurisdiction is not challenged by the state, we are obliged to examine the record and make such determination sua sponte. The urgency of this introspection is evident in view of our previous holding in In re Juvenile Delinquency Appeal, Mo.App., 289 S.W.2d 436.
Section 211.261, RSMo 1959, V.A.M.S., is the section of the Juvenile Code which concerns itself with appeals from judgments of the juvenile court. It authorizes an appeal to a child from any final judgment order or decree made under the provisions of the code, (Chapter 211). It requires: 'Notice of appeal shall be filed within thirty days after the final judgment, order or decree has been entered * * *.' Nothing within the law pertaining to juveniles can be found which indicates when or what judgment shall be considered final. Considering a previous law, this court decided in In re Juvenile Delinquency Appeal, supra, that the determination of the status of the child and the determination of the question of commitment were separate and distinct, each terminating in a final judgment or order from which an appeal would lie. This decision relied upon the case of In re Campbell, 323 Mo. 757, 19 S.W.2d 752, 754, where the court had before it the construction of Sec. 2610, RSMo 1919, which later became Sec. 211.170, RSMo 1949, V.A.M.S. But the statute construed in Campbell which related to proceedings in first and second class counties, specifically provided that an appeal should be allowed from 'any final judgment of delinquency or dependency, or final order of commitment * * * and from any modification of such order * * *.' It spelled out in detail that an appeal could be taken from either a judgment determining delinquency or a judgment determining disposition of the child. The statute before this court in In re Delinquency Appeal, was Section 211.410, RSMo 1949, V.A.M.S., which applied to third and fourth class counties. This section did not use the same language as 211.170. It merely said that an appeal might be taken from 'any final order or judgment' without elaborating on what was intended as a final judgment. The conclusion was reached in that opinion on the basis that it appeared the legislative intent was the same and that the two statutes should receive the same construction. This would seem to be logical since the legislature would surely not have intended that one type of judgment would be final in certain counties and not in another in the same state.
Then in 1957 one year after our decision in In re Delinquency Appeal, the legislature repealed the sections found in RSMo 1949 pertaining to juveniles including the two appeal sections and enacted in their place the present Juvenile Act, Sections 211.011 to 211.431, RSMo 1959, V.A.M.S. The act applies throughout the state without any variance as to different classes of counties. Pertinent portions of sections of this act with which we are here concerned are:
Sec. 211.031. 'Except as otherwise provided herein, the juvenile court shall have exclusive original jurisdiction in proceedings:
(1) Involving any child who may be within the county who is alleged to be in need of care and treatment because:
(c) The behavior, environment or associations of the child are injurious to his welfare or to the welfare of others; or
(d) The child is alleged to have violated a state law or municipal ordinance; * * *.'
Sec. 211.181. 'When a child is found by the court to come within the applicable provisions of section 211.031, the court shall so decree and make a finding of fact upon which it exercises its jurisdiction over the child and the court may, by order duly entered, proceed as follows:
(1) Place the child under supervision in his own home or in custody of a relative or other suitable person upon such conditions as the court may require;
(2) Commit the child to the custody of:
(a) A public agency or institution authorized by law to care for children or to place them in family homes;
(b) Any other institution or agency which is authorized or licensed by law to care for children or to place them in family homes; * * *.'
Section 211.261. 'An appeal shall be allowed to the child from any final judgment, order or decree made under the provisions of sections 211.011 to 211.431 * * *.'
In the case at bar, at the conclusion of the evidentiary hearing as to culpability on January 24, 1968, the court orally indicated a finding that the juvenile had committed voluntary manslaughter. The judge then concluded his remarks with this statement: 'So without making any ruling as to disposition at this time, Mr. Manion (Deputy Juvenile Officer), you complete your social investigation and then make your report and furnish Mr. Oetting (Juvenile's attorney) a copy of it then we will come back and see what kind of disposition will be made of the case.'
When the dispositional hearing was completed, the court referred to the previous finding of the child's culpability, but again indicated that the case had been 'passed over' to the morning of March 25, 1968, for 'hearing on the dispositional phase.' Commitment was then made to the State Training School for Boys.
Review of the two court orders written in the juvenile court record reveals that in the one entered January 24, 1968, the court found the child to be under the provisions of Section 211.031, supra, in that visions of Section 211.031, supra, in that were injurious to his welfare and the welfare of others and also by reason of an act of voluntary manslaughter. After declaring him to be within the purview of the Juvenile Code, the court then continued the cause for disposition, pending the completion of the social investigation. The formal entry on March 25, 1968, referred to the prior hearing and finding and then committed the minor.
Facile dispatch of the issue would indicate that we follow blindly In re Juvenile Delinquency Appeal, supra, and find that the adjudication of January 24, 1968, was a final, appealable judgment, thereby placing the filing of notice of appeal on April 29, 1968, beyond the time of 30 days provided in Section 211.261. Section 211.410, RSMo 1949, construed in that case to so hold, merely referred to 'any final order or judgment' just as in our present juvenile appeal statute. But we do not believe this was the intent of the legislature. When the new act was written, it could very well have been phrased as was old Section 211.170, RSMo 1949, specifically providing an appeal from either a judgment of delinquency or a judgment of disposition. Instead that section, as well as the others, was repealed and the legislature passed Section 211.261 using general language. In construing the new section we must proceed on the theory that the general assembly intended something by the repeal of the old and the enactment of the new in place of the old sections. Darrah v. Foster, Mo., 355 S.W.2d...
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