In Re Whittington , 17 Ohio App. 2d 164 ( 1969 )

The first paragraph of the syllabus reverses our judgment reported in In re Whittington, 13 Ohio App. 2d 11, that the appeal of this boy is from a final appealable order. It now does an about face and holds that this appeal is not from a final appealable order since it was unaccompanied by any disposition order.

Section 6, Article IV of the Ohio Constitution provides, in pertinent part:

"The Courts of Appeals shall have * * * such jurisdiction asmay be provided by law to review, affirm, modify, set aside, or reverse judgments or final orders * * * of courts of record inferior to the Court of Appeals within the district, * * *." (Our emphasis.)

It is now provided by law, Section 2501.02, Revised Code, as amended (129 Ohio Laws 582, 742), effective January 10, 1961, that:

"* * * In addition to the original jurisdiction conferred by Section 6 of Article IV, Ohio Constitution, the court shall have jurisdiction:

"Upon an appeal upon questions of law to review, affirm, modify, set aside or reverse judgments or final orders of courts of record inferior to the Court of Appeals within the district, including the finding, order or judgment of a Juvenile Court that a child is delinquent, neglected or dependent, for prejudicial error committed by such lower court;

"* * *."

I am, therefore, of the opinion that the appeal of this boy is from a final appealable order, because it has been so provided by law.

The majority opinion of this court reads in pertinent part:

"The judgment of the Juvenile Court recognizing Buddy Lynn Whittington to Common Pleas Court is reversed and vacated and judgment is entered retaining such cause in Juvenile Court for further proceedings according to law, under the Juvenile Code of Ohio, and in compliance with the decision of the Supreme Court of the United States in In re Gault, 387 U.S. 1,18 L. Ed. 2d 527, 87 S. Ct. 1428."

In my opinion, this merely puts the responsibility which should be ours back to the Juvenile Court. The Supreme Court of the United States vacated our judgment reported in 13 Ohio App. 2d 11, and remanded the case direct to this court for "further consideration not inconsistent with the opinion of this court" and "in light of In re Gault." See In re Whittington, — U.S. —, 20 L. Ed. 2d 625, 88 S. Ct. 1507, and In re Gault,387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428.

In Whittington, supra, at page 628 of L. Ed. 2d, we read:

"* * * The unresolved question under Ohio law is not whether the adjudication of delinquency is a final, appealable order. The Ohio Courts of Appeals considered that issue and ruled that the order is appealable, and the Ohio Supreme Court necessarily accepted this conclusion because its dismissal of the appeal was not based on the jurisdictional issue. * * *"

Also, this reference to Gault appears therein:

"* * * In Gault, this court held squarely, for the first time, that various of the federal constitutional guarantees accompanying ordinary criminal proceedings were applicable to state juvenile court proceedings where possible commitment to a state institution was involved. * * *"

In Gault, supra, we read (L. Ed. headnote):

"4. Neither the Fourteenth Amendment nor the Bill of Rights is for adults alone."

Under the plain words of Whittington and Gault, I deem that the Supreme Court of the United States has instructed this court to make the decision as to whether proof by a preponderance of the evidence only is sufficient in a delinquency proceeding against a boy who was 14 years old (now over 16 years of age), when the determination of delinquency is based upon the commission of an act which if committed by an adult would be a felony and where such determination could result in commitment to a state institution and loss of liberty for years.

The basic premise of In re Gault is that such juvenile proceedings as we have here are in reality criminal. Our entire Anglo-American system of criminal justice is rested upon "guilt beyond a reasonable doubt." See United States v. Costanzo (1968), 395 F.2d 441; In re Urbasek (1968), 38 Ill. 2d 535,232 N.E.2d 716; Leach v. Texas (1968), 428 S.W.2d 817, concurring opinion of Johnson, J., at 821. The conclusion of these courts reached from the above premise is compelling. It is most compelling when the charge of being a delinquent child is based solely on one felony or predicated on a single crime.

Under all the circumstances of this case, I am of the opinion that the spirit and reasoning of the Gault decision, as well as that of the Whittington vacation and remand should be followed and we should hold that a finding of delinquency for the commission of an act which if committed by an adult would be a felony and which might result in this boy's loss of liberty for years is comparable in seriousness to a criminal felony prosecution, and I would hold further that in this particular case the entire proceedings in Juvenile Court are criminal and not civil in nature and that under the due process clause and the equal protection clause of theFourteenth Amendment to the federal Constitution, such federal constitutional guarantees are applicable to state Juvenile Court proceedings, where as in this case possible commitment to a state institution is involved, and that the quantum of proof required in this case is that of beyond a reasonable doubt.

It is apparent from the record that the Judge of the Juvenile Court did not apply this proper rule of proof and thereby committed prejudicial error against Buddy Lynn Whittington in not so doing.

Therefore, this cause should be remanded to the Juvenile Court for a new trial and further proceedings according to law consistent with this opinion. The majority opinion does not preclude such procedure. Neither does it instruct that it be followed.

Certainly the long delay here calls for a direct and definite order from this court as to what proceedings must now be taken. A new trial should be ordered. The quantum of evidence necessary should be "guilt beyond a reasonable doubt." Anything short of such definite instruction is to deny to this boy his fundamental rights of due process of law and equal protection under theFourteenth Amendment of the federal Constitution.

The appeals in cases Nos. 431, 433 and 434 raise but collateral issues, since they all grew out of the delinquency hearing. They should be dismissed.