Walter, In re

• Decision Date: 25 November 1969
• Docket Number: 384,Nos. 383,s. 383
• Citation: 172 N.W.2d 603
• Parties: In the matter of Thomas Franklin WALTER, a Minor Under the Age of Eighteen Years. STATE of North Dakota, Plaintiff and Respondent, v. Thomas Franklin WALTER, Defendant and Appellant. In the matter of Michigan Steven EHRLICH, a Minor Under the Age of EighteenYears. STATE of North Dakota, Plaintiff and Respondent, v. Michael Steven EHRLICH, Defendant and Appellant. Crim.
• Court: North Dakota Supreme Court

Page 603

172 N.W.2d 603

In the matter of Thomas Franklin WALTER, a Minor Under the

Age of Eighteen Years.

STATE of North Dakota, Plaintiff and Respondent, v. Thomas Franklin WALTER, Defendant and Appellant.

In the matter of Michigan Steven EHRLICH, a Minor Under the

Age of EighteenYears.

STATE of North Dakota, Plaintiff and Respondent, v. Michael Steven EHRLICH, Defendant and Appellant.

Crim. Nos. 383, 384.

Supreme Court of North Dakota.

Nov. 25, 1969.

Syllabus by the Court

1. An order with respect to the custody of a child must be made solely upon consideration of his welfare and the good of the State.

2. The good of the State requires that a child be removed from a community only when his delinquency is such that he has become a danger to society either because of his own conduct or his influence on others.

3. The evidence is considered and it is held that the 'welfare of the child and the good of the State' do not require that the two delinquent boys in these cases be committed to the State Industrial School.

Helgi Johanneson, Atty. Gen., Bismarck, and Lester Schirado, State's Atty., Mandan, for the State.

Vogel, Bair & Graff, Mandan, for defendant and appellant, Thomas Franklin Walter.

C. J. Schauss, Mandan, for defendant and appellant, Michael Steven Ehrlich.

TEIGEN, Chief Justice.

We are involved here with two appeals under Chapter 27--16, N.D.C.C., which provides that appeals may be taken from Juvenile Court orders determining and adjudging the transfer of care, custody and control of delinquent children. Both appeals are disposed of in this opinion.

The two boys in these titles were sixteen and seventeen years old, and both were found delinquent because, jointly, they had committed violations of State law by committing grand larceny. No issue is raised on their appeals nor in the proceedings below with respect to the finding of delinquency. Delinquency is admitted. No issue is raised as to the accusatory stages in the respective proceedings.

The issue raised on these appeals involves the disposition stage of the proceedings in the Juvenile Court. Both boys were committed to the State Industrial School by the Juvenile Court, and the contention is made on these appeals that such disposition was not justified under the evidence in either case.

These proceedings were held under the provisions of Chapter 27--16, N.D.C.C., which was in effect prior to the effective date of the Uniform Juvenile Court Act, codified as Chapter 27--20 and contained in the 1969 pocket supplement to the North Dakota Century Code. An appeal taken under either Act is triable anew in this court.

The question of disposition in juvenile proceedings has been considered by this court in several cases. In State v. Smith, 75 N.D. 29, 25 N.W.2d 270, this court held:

'Where it is shown that the minor is a delinquent child, and that the parent having his custody is unfit to have charge of his training, upbringing and person, the court may commit him to the state training school for discipline, training and control, where there is nothing in the record to show any other alternative.'

In Hardy v. Cunningham (N.D.), 167 N.W.2d 508, we held:

'In juvenile proceedings the order with respect to custody shall be made solely upon the consideration of the welfare of the juvenile and the good of the State.'

In discussing the problem this court, in State v. Myers, 74 N.D. 297, 22 N.W.2d 199, stated:

'We realize that proper disposition of cases of juvenile delinquency requires a delicate balancing of mixed considerations and that even the most careful weighing of pertinent factors can only result in conclusions that are speculative to the extent that they attempt to predict the course of future events. Confidence that a correct conclusion has been reached must of necessity rest upon hope founded in experience, rather than on certainty. We think therefore that the problem should be approached in a spirit of optimism and that drastic remedies should not be invoked where we can have reasonable hope that lesser ones will have an equal if not a complete success.

'What then are the factors to be considered and what relative weight is to be given to each? To what extent is the welfare of an individual delinquent to be counterbalanced by the good of the state? In one sense, a decision, which will help quiet public indignation over a scandalous condition which has arisen in a community, or which, because of its severity, will act as a forbidding example to other youngsters, may be said to be for the good of the state. But we do not think that, as used in the juvenile act, the phrase can be given such a broad interpretation. Considerations of expediency, the satisfaction of public indignation, or example are contrary to the whole spirit of the juvenile act. They are dependent on publicity to be effective for any purpose and all proceedings in juvenile court are declared by statute to be 'confidential'. Section 27--1606, R.C. 1943. We therefore hold that the good of the State requires a child to be removed from a community only when his delinquency is such that he has become a danger to society either because of his own conduct or his influence upon others.'

The decisions harmonize with the statute which allows the Juvenile Court a wide latitude in making disposition. Section 27--16--21, N.D.C.C.

The Juvenile Court, in its findings, found body boys to be delinquents and that it was for their best interests and the State's best interests that each be committed to the State Industrial School until each reaches his majority, with a recommendation for earlier discharge under described circumstances.

We shall now consider the question in light of our rulings and the statutes: Were the orders committing these two boys to the State Industrial School for their respective best interests and for the best interests of the State of North Dakota?

The evidence indicates that both...