Whittington, In re

• Decision Date: 03 January 1967
• Citation: 233 N.E.2d 333,13 Ohio App.2d 11
• Parties: , 42 O.O.2d 39 In re WHITTINGTON.
• Court: Ohio Court of Appeals

Page 11

13 Ohio App.2d 11

233 N.E.2d 333, 42 O.O.2d 39

In re WHITTINGTON.

Court of Appeals of Ohio, Fifth District, Fairfield County.

Jan. 3, 1967.

Syllabus by the Court

1. A proceeding against a juvenile charged with being a delinquent is civil in nature and not criminal, and a preponderance of the evidence is sufficient to warrant a determination that such juvenile is a delinquent, notwithstanding that acts are charged which, if committed by an adult and proved beyond a reasonable doubt, would constitute a felony.

2. The provisions of the Juvenile Code of Ohio relating to delinquency of junveniles are not designed as punishment for crime, but to place minors of the description and for the causes specified in the statute, under the guardianship of the public authorities named, for proper care, discipline, education and training, until they are rehabilitated or arrive at the age of majority.

E. Raymond Morehart, Pros. Atty., and S. Ferrell Jackson, Lancaster, for appellee State of Ohio.

Jack Supman and Judson C. Kistler, Lancaster, for appellant Buddy Lynn Whittington.

RUTHERFORD, Presiding Judge.

This is an appeal by Buddy Lynn Whittington from a judgment of the Juvenile Court finding him to be a delinquent child.

On August 5, 1966, a complaint was filed in the Juvenile Court of Fairfield County by Elwood R. Phillips, the pertinent part of which reads:

'The undersigned says that he has knowledge of Buddly Lynn Whittington, a minor under the age of 18 years, to wit, the age of 14 years; that said minor appears to be a delinquent child in this; that he did, on or about the 29th day of July, 1966, in the village of Baltimore, county of Fairfield, state of Ohio, unlawfully, purposely and maliciously kill one Gladys Willard, contrary to Section 2901.05 of the Revised Code of Ohio.'

Elwood R. Phillips was the Chief of Police of Baltimore.

On August 5, when the complaint was filed, the Judge of the Juvenile Court ordered a warrant to issue to the Probation Officer for the arrest of Buddy Lynn Whittington and that, when arrested, he be brought before the court. He was arrested and brought before the court on the same day and has from the time of his arrest had representation of counsel.

Since August 5, Buddy has been held in detention by the Juvenile Court, during part of which time he has been at the Juvenile Diagnostic Center.

On August 10, a motion was filed requesting that Buddy be released to his parents.

On August 11, a journal entry was filed as follows:

'This 11th day of August, 1966, came E. Raymond Morehart, Prosecuting Attorney, also came Buddy Lynn Whittington along with his counsel, Jack Supman and Judson Kistler, to be arraigned upon a charge of delinquency. Also present were the parents of said child, Orville A. Whittington and Ollie Mae Whittington. The charge was distinctly read to Buddy Lynn Whittington and he was required to plead thereto.

'Whereupon the said Buddy Lynn Whittington through his counsel entered a plea of 'not guilty' to said charge. It is therefore ordered by the court that said case be set for hearing on the 24th day of August, 1966 at 9:30 o'clock a. m.'

On August 24, hearing was held and testimony taken on the motion of Buddy to be relased to his parents, placed on bond or sent to the Franklin County Detention Home while this matter is pending. That motion was overruled, and the cause continued for further hearing on September 2, 1966.

At the hearing on September 2, 1966, in addition to the testimony then taken, it was stipulated that the testimony taken on the motion on August 25 be included, and the bill of exceptions contains a complete transcript of all the proceedings.

Buddy's parents were normally at home, but on July 29 they left about 7 or 7:30 a. m. to visit a relative in Canton, Ohio. Buddy was up at the time, but was left at home alone so that he might attend a summer school class in which he was enrolled at Liberty Union School. The class was scheduled at 8:30 a. m.

The Whittingtons lived at 215 Fremont Street. The decedent, Mrs. Gladys Willard, was a neighbor who lived with her husband, Herman Willard, across the street at 220 Fremont. A son, Jack Willard, also lived in the home with his parents. Jack had been separated from his wife for approximately nine months. They had previously lived two doors from his parents. The record does not disclose the whereabouts of Jack's wife or his children, with whom Buddy had played when Jack's family was together. Dick Willard, also a sone of the decedent, lived with his wife, Lula, and daughter Susan, at 226 Fremont, next door to his parents. The decedent's mother, Mrs. Stella Brandon, and a sister, Genevieve Anderson, lived at Route 1, Baltimore. Another sister, Aurilla Goodrich, resides in Florida, but in July she was visting at the Brandon home.

Herman, the decedent's husband, worked for Adam Poff on a farm and left for work about 6 a. m. on July 29.

Jack testified that his mother called him and prepared his breakfast at 6:20, and that he left for work at approximately 6:50 and was at work at the Defense Construction Supply Center, Columbus, Ohio, at 7:45 a. m.

The daughter in law, Lula, testified that her husband, Dick, had gone to work at 6:45 a. m. Elwood R. Phillips testified that he later talked to neighbors; that Mrs. Estep said she saw Mrs. Willard at approximately 6:30 a. m. on July 29 at the rear of her lot, presumably feeding her chickens, at which time she talked to her briefly; and that Mrs. Barber stated she saw Mrs. Willard at 7:30 or a quarter of eight in her own yard drawing water from a hydrant, presumably for her dog. There was no objection made to this hearsay testimony.

It was blackberry season, and Gladys Willard was in the habit of going not mornings to pick blackberries in nearby areas. Her sister, Genevieve Anderson, also often went blackberry picking in the morning. On Friday mornings it was the custom of Gladys Willard to drive to her sister Genevieve's at about 10 a. m. and they would go shopping in Lancaster.

The daughter in law, Lula Willard, who lived next door, testified that she went to Mrs. Willard's house at 8:40 a. m. to ask that she bring her girl a pair of pajamas when she went shopping. No one answered the door, but her car was there. At 10 a. m. Lula tried again, but no one answered at Mrs. Willard's home.

At 11:45 a. m. Genevieve called Lula to inquire, and Lula sent her daughter to check. She found no one home, but the car was still there.

Shortly thereafter a search was commenced. Numerous people joined in the search, including Buddy Lynn Whittington, neighbors and relatives. Later in the afternoon they were joined by law enforcement officials. Primarily, the search covered areas where there were blackberries.

Late in the afternoon, Buddy went to play ball. His parents returned home at approximately 7:30 p. m.

As to what happened at this time, Mr. Whittington testified:

'Well, I went and looked for the key, and the key wasn't there, or at least I didn't find it. And somebody said Buddy was at ball practice, which I would have known if I had given it a second thought. And I don't know who said it, but I went to the school house after him. And he had ridden his bicycle up there, and I asked him about the key, if he had it in his pocket, and he said, 'No.' So he got on his bicycle and went home; and we unlocked and went in the house.

'Q. Where was the key? Was it in a different place from where you always keep it? A. It was * * * there's a pipe hanger up there where we always but the key. I mean, in this space across there, and there's a little space about four inches, and he stuck it in there between the pipe hanger, which we always keep it over on the other side, or most of the time, and that's where I missed it. I just didn't look in that space.'

After testifying that he had taken some things into the house, Mr. Whittington testified further, as follows:

'Q. What did you do after you went back outside? A. I run into Mrs. Mauger out there, and she said 'I searched my house everyplace.' She said, 'I went in and looked through my wardrobes, the closets in her house.' I said, 'Well, I'll go check the garage.' You know our garage is right there back of the house.

'Q. Is the garage kept locked? A. No.

'Q. I see. A. Of course, I went in there and looked, and I went from there in the house. I looked and went back out.

'Q. Then what did you do, sir? A. I fooled around outside awhile, and I got to thinking there could only be one place that I missed looking. So I went back and started looking under the beds.

'Q. Did anybody go with you? A. Yes, Buddy went along.

'Q. Buddy went you? A. Yes.

'Q. How many bedrooms do you have, Mr. Whittington? A. Three.

'Q. Three bedrooms, and where are they in relation to you house? A. They're on the north side. They're in rotation. We sleep in the one to the west, and Buddy in the middle one, and the other * * *.

'Q. Now, how did you check under the beds, will you tell us just what you did? Which bedroom did you start with? A. I started with our bed.

'Q. With your bedroom? A. In the beginning, I never expected to find Mrs. Willard in the home like that.

'Mr. Morehart: Well, I have no doubt about that, sir.

'The reason I thought of it, was because her and her husband had trouble, and Jack's there; and him and his wife have a lot of trouble. And I though it was more than she could take, and I figured she would rather die in our house than in her own home.

'Q. I see. That was what you maybe were thinking, why you would look, make such a through search of your house? A. Yes.

'Q. Now when you went * * * was Buddy with you when you checked the bedrooms? A. Yes.

'Q. Or did he check certain bedrooms and you check certain bedrooms? A. No, he just went down there and looked in; and I looked under one and he went to the next one. And he went on over and walked up there to the end of the vanity, and he just...