Edwards v. State

231 N.E.2d 20, 250 Ind. 19, 1968 Ind. LEXIS 607

• Court: Indiana Supreme Court
• Decided: March 13, 1968
• Docket: 30,867
• Status: Published

Opinions

Hunter, C. J.

The appellant herein is appealing from a conviction in the Circuit Court of Posey County, Indiana, of the offense of public indecency, Ind. Anno. Stat. § 10-2801 (1956).

Prosecution was commenced on the basis of an affidavit charging appellant with the above stated crime, appellant entered a plea of not guilty and thereafter trial was had by jury. The trial resulted in the jury returning a verdict of guilty of the offense charged.

The error assigned and relied upon by the appellant- is the overruling of his motion for a new trial. In his brief appellant asserts two (2) alleged grounds for a new trial. The question of the sufficiency of the evidence has not been raised, either in the motion for a new trial or in the brief. However, the issue on which this decision must rest was not raised by the appellant either in his motion for new trial or in his brief. It has consistently been held by this Court that where the “interests, rights and privileges of juveniles are involved,” the Court may search the record, and determine issues inherent therein. Hicks v. State (1967), 249 Ind. 24, 230 N. E. 2d 757; Summers v. State (1967), 248 Ind. 551, 280 N. E. 2d 320; McCord v. Bright (1909), 44 Ind. App. 275, 87 N. E. 654.

The record reveals that prosecution was instituted on the 21st day of May, 1965, upon the filing of an affidavit, and immediately a warrant was issued by the Posey Circuit Court for the arrest of appellant. On the same, day appellant was arrested and waived arraignment. A sanity hearing was held on July 6th and trial held on July 9th. It is apparent from the record that all the proceedings below were held before the Posey Circuit Court sitting in its capacity as a criminal court.

However during the trial appellant testified on his own behalf and in answer to the following question presented on redirect examination. “How old are you, George?” Appellant responded: “I will be seventeen the twenty-third of this month.” Thus it appears from the record that on the date of the alleged offense, appellant was sixteen (16) years of age.

Before a criminal court can obtain jurisdiction over a juvenile offender charged with an act which would amount to a crime if committed by an adult, the juvenile court must properly waive its exclusive jurisdiction over the juvenile. Summers v. State, supra. In counties where there is no separate juvenile court, the circuit court may only place alleged juvenile offenders on its criminal docket after waiver proceedings in accordance with the juvenile statutes. Hicks v. State, supra. There is no indication in the record before us that the Posey Circuit Court, sitting in its capacity as a juvenile court, acquired and waived jurisdiction over the appellant pursuant to the provisions of either Ind. Anno. Stat. § 9-3207 (Supp. 1967) or § 9-3213 (1956). In those cases involving juvenile offenders, the circuit court record should indicate if the case was waived from the jurisdiction of the juvenile court.

We believe the instant case is controlled by Hicks v. State, supra, wherein it was stated:

“. . . in a county not having a separate juvenile court, the circuit court must sit in its capacity as a juvenile court in initially accepting jurisdiction of an alleged juvenile offender. In a case where it is not apparent at the outset of a prosecution that the defendant is below the full age of eighteen (18) at the time of the alleged offense, upon receiving an indication of such fact the court should halt the proceedings and transfer the case to its juvenile docket . . .” Id.

For the foregoing reasons, the Posey Circuit Court did not have the requisite jurisdiction to convict and sentence the appellant without a proper waiver by the court sitting in its juvenile capacity. The conviction is therefore reversed and the case is remanded to the Posey Circuit Court for proceedings in accordance with this opinion.

Arterburn, Jackson and Lewis, JJ., concur. Mote, J., dissents.