In Re Alexander

174 S.E.2d 667, 8 N.C. App. 517, 1970 N.C. App. LEXIS 1598

Opinion

Parrer, J.

The order appealed from is based on a finding that respondent is a delinquent “in that he did commit larceny by taking one portable record player from S. H. Kress & Co.” The evidence presented was insufficient to support this finding.

While juvenile proceedings should not be equated to criminal prosecutions nor should a finding of delinquency in such a proceeding be deemed synonymous with conviction of a crime. In re Burrus, 275 N.C. 517, 169 S.E. 2d 879, nevertheless certain constitutional safeguards apply. In re Winship, 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068; In re Gault, 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428. The majority opinion in Winship, which was decided 31 March 1970, held that “the constitutional safeguard of proof beyond a reasonable doubt is as much required during the adjudicatory stage of a delinquency proceeding as are those constitutional safeguards applied in Gault — notice of charges, right to counsel, the rights of confrontation and examination, and the privilege against self-incrimination.” While the record before us does not disclose what standard of proof was applied by the district judge in making the factual determination upon which the order here appealed from is based, the evidence in the present case was not sufficient, if this had been a criminal prosecution against an adult for larceny, even to justify submission of the case to a jury. In such case a judgment of nonsuit would have been required. It is no less required in a case in which a juvenile is involved, regardless of whether the nature of the proceedings require that the juvenile be designated a respondent rather than be designated as a defendant.

We do not pass upon appellant’s additional contention that the petition in the present case was itself insufficient to support the court’s order, since for failure of evidence the order must in any event be and is

Reversed.

MoRRis and HedricK, JJ., concur.