Opinion
No. 70-567
Decided July 7, 1971.
Juvenile Court — Binding over to Common Pleas Court — R.C. 2151.26 — Required findings — Specific language not required — Evidence — Proof.
APPEAL from the Court of Appeals for Lucas County.
Cornelius S. Carter, a juvenile, was charged by affidavit in the Juvenile Court (Court of Common Pleas of Lucas County, Division of Domestic Relations) with the October 9, 1968, armed robbery of a Hanover Shoe store in Toledo, Ohio. On December 27, 1968, an evidentiary hearing was held in the Juvenile Court, at which testimony was presented by both the state and appellant regarding the robbery.
At the conclusion of the hearing, the case was continued for the purpose of appellant's undergoing psychiatric, physical and sociological examinations. On January 24, 1969, after Carter was tested, the court made this order:
"This cause came on for dispositional hearing in the matter of the delinquency of Cornelius S. Carter. At a formal hearing on 12-27-68, the court found sufficient credible evidence of probative value to indicate that Cornelius S. Carter had committed an act which could be a felony if committed by an adult. The court has since carefully examined current medical reports on his physical condition, a psychiatric report by Dr. Henry L. Hartman, and sociological history of the said Cornelius S. Carter prepared by the various members of the staff of this court The record of the said Cornelius S. Carter indicates many and continuing contacts with the Toledo police department and many court appearances where formal charges were brought against Cornelius, including the present charge. The record further indicates that Cornelius was committed to a correctional school for a period of approximately two years commencing in December, 1962, and that Cornelius was later committed to the custody of the Ohio Youth Commission on 3-22-66.
"Upon consideration of the court's findings on 12-27-68, the aforesaid medical psychiatric and sociological reports, and the records of this court, the court finds as follows: (1) The offense in this case is of an aggravated character; (2) the prospects for reasonable rehabilitation of the juvenile and adequate protection of the community are considered to be completely inadequate for his continued use of the services and facilities available to this Juvenile Court, including the services of the Ohio Youth Commission.
"Therefore the court having found sufficient credible evidence of probative value to indicate that Cornelius S. Carter has committed an act which could be a felony if committed by an adult, and the court having further found that the best interests of the juvenile and the protection of the community will best be served by waiving jurisdiction of the Juvenile Court, it is hereby ordered and decreed that the jurisdiction of the Juvenile Court be waived and that Cornelius S. Carter be ordered to appear before the Common Pleas Court of Lucas County, Ohio, for disposition as that court is authorized to make for a like act if committed by an adult, all in accordance with Sec. 2151.26 of the Ohio Revised Code. Cornelius S. Carter remanded to the Lucas County Jail. Bond $5000."
Appellant was subsequently indicted by the Grand Jury, and, following a plea of not guilty, was brought to trial before a jury in the Court of Common Pleas. The trial resulted in appellant's conviction of the crime of armed robbery, in violation of R.C. 2901.13. Appellant was sentenced to the Ohio Reformatory according to law.
Upon appeal to the Court of Appeals, the judgment of the trial court was affirmed. This cause is now before this court pursuant to the allowance of a motion for leave to appeal.
Mr. Harry Friberg, prosecuting attorney, and Mrs. Alice L. Robie, for appellee.
Mr. Jas. Slater Gibson, for appellant.
Appellant contends that the Juvenile Court erred in binding him over to the Court of Common Pleas for trial as an adult, in that it failed to comply with the mandates of R.C. 2151.26 as in effect at that time. That section required a prior finding that a juvenile was a delinquent child before a juvenile judge could relinquish jurisdiction, and vest jurisdiction in the Court of Common Pleas for disposition as the Court of Common Pleas is authorized to make for a like act committed by an adult.
R.C. 2151.26, as in effect prior to November 19, 1969, read as follows:
"In any case involving a delinquent child under Sections 2151.01 to 2151.54, inclusive, of the Revised Code, who has committed an act which could be a felony if committed by an adult, the juvenile judge, after full investigation and after a mental and physical examination of such child has been made by the youth commission, or by some other public or private agency, or by a person qualified to make such examination, may order that such child enter into a recognizance with good and sufficient surety, subject to the approval of the judge, for his appearance before the Court of Common Pleas at the next term thereof, for such disposition as the Court of Common Pleas is authorized to make for a like act committed by an adult; or the judge may exercise the other powers conferred in such sections in disposing of such case."
Recently, in In re Jackson (1970), 21 Ohio St.2d 215, Justice Herbert, after recognizing that the existing statute required a finding of delinquency, stated that:
"This is not to say that the act upon which a bindover is predicated must be the same as that from which the finding of delinquency emanated * * *. For example, a child could be adjudged a delinquent on many grounds, including those enumerated in Section 2151.02, Revised Code, before the Juvenile Court even began consideration of whether he should be bound over under Section 2151.26, Revised Code. A child could have been found to be a delinquent in an entirely unrelated, prior occurrence, and then become involved in a matter which would fall within the purview of Section 2151.26, Revised Code." (Ib., 218, 219.)
In the case at bar, the record reveals that the Juvenile Court found that appellant had had "many and continuing contacts with the Toledo police department, and many court appearances where formal charges were brought against Cornelius, including the present charge." The court found also that he had been committed to a correctional school for two years, that he had been committed to the custody of the Ohio Youth Commission, and that there was "sufficient credible evidence of probative value to indicate that Cornelius S. Carter has committed an act which could be a felony if committed by an adult."
While the court's entry did not specifically state that appellant was adjudged to be a "delinquent child," using those words, the court's journal entry adequately communicates the fact that Carter has been found to be a delinquent child. R.C. 2151.26 does not require specific language to be used by a Juvenile Court in journalizing its finding that a child is delinquent. It can do so without ever using the word "delinquent," as did the court in the instant case, as long as a reading of its entry reasonably apprises the reader that such a finding was made. To hold otherwise would be catering to the supertechnical.
In addition to his major contention, appellant apparently seeks to raise an issue as to the insufficiency of the evidence to support his conviction. While appellant's failure to raise that issue in the form required by Rule 5(D) of the Rules of Practice of the Supreme Court would warrant our refusal to consider it, this court may nonetheless choose to grant it consideration. Doing so, it is our conclusion, from an examination of the evidence presented in the record, that reasonable minds could differ upon whether each material element of the offense charged was proved beyond a reasonable doubt. Therefore, the question of the sufficiency of the evidence was properly one for jury determination. See State v. Berry (1971), 25 Ohio St.2d 255, 261; State v. Antill (1964), 176 Ohio St. 61, paragraph five of the syllabus.
Rule 5(D) of the Rules of Practice of the Supreme Court of Ohio provides that the appellant's brief must contain:
"An argument, which shall be headed by the proposition of law which the appellant contends is applicable to the facts in the case and which, if he prevails, could serve as a syllabus. See paragraph three of the syllabus of Drake v. Bucher, 5 Ohio St.2d 37. If several propositions of law are contended for, the argument shall be divided by utilizing each proposition as a subheading."
Accordingly, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
O'NEILL, C.J., SCHNEIDER, HERBERT, DUNCAN, CORRIGAN, STERN and LEACH, JJ., concur.
The word "delinquent," when applied to an adjudication of juvenile conduct and responsibility, has precise meaning and considerable import. It should appear in journal entries which are meant to reflect such a determination.