In RE PIGG v. State

253 N.E.2d 266, 253 Ind. 329, 1969 Ind. LEXIS 314

• Court: Indiana Supreme Court
• Decided: December 15, 1969
• Docket: 668-S-102
• Status: Published

Opinions

DeBruler, C.J.

This is an appeal from a determination by the Hamilton County Juvenile Court that appellant, a female, then fifteen years of age, was a delinquent child due to truancy.

After receiving information from the principal of appellant’s school concerning the absence of appellant from school and after making preliminary inquiry, the juvenile court ordered the probation officer to file a petition pursuant to Acts 1945, .ch. 356, § 8, as amended by Acts 1959, ch. 76, § 1, the same being Burns’ Ind. Stat. Ann. § 9-3208. The petition alleged that appellant was a delinquent child due to truancy. The juvenile court then issued a summons to appellant and her parents pursuant to Acts 1945, ch. 356, § 9, the same being Burns’ Ind. Stat. Ann. § 9-3209.

On October 11, 1967, the juvenile court held a hearing on the petition at which appellant and her mother were present and represented by counsel. Appellant’s counsel stipulated that the principal of the school would testify correctly that appellant was absent from school fifty-nine days the previous year, and had enrolled eighteen days late for the current term without explanation and had been absent a total of twenty-two days up to the time of the hearing. Appellant conceded the absences and claimed that she had been chronically ill. To show this appellant’s attorney placed the mother on the stand and at the conclusion of her testimony he informed the court that appellant wished to testify but the court refused to allow her to take the stand, saying: “I don’t particularly care to hear from Diane.” Appellant argued in her motion for new trial and in her brief on appeal that this refusal by the trial court was reversible error and we agree.

Appellant had a right to testify under oath in her own behalf under the Sixth and Fourteenth Amendments to the United States Constitution. Ferguson v. Georgia (1961), 365 U. S. 570, 5 L. Ed. 2d 783, 81 S. Ct. 756; In Re Oliver (1948), 333 U. S. 257, 92 L. Ed. 682, 68 S. Ct. 499.

In Indiana this right is expressly given by statute, Acts of 1905, ch. 169, § 235, the same being Burns Ind. Stat. Ann. § 9-1603:

“Who are competent witnesses. — The following persons are competent witnesses:

* * *

“Fourth. The defendant, to testify in his own behalf. But if the defendant does not testify, his failure to do so shall not be commented upon or referred to in the argument of the cause, nor commented upon, referred to, or in any manner considered by the jury trying the same; and it shall be the duty of the .court, in such case, in its charge, to instruct the jury as to their duty under the provisions of this section.”

The Court has enforced that statute several times. Hiatt v. State (1920), 189 Ind. 524, 127 N. E. 277; Bird v. State (1886), 107 Ind. 154, 8 N. E. 14; Hartford v. State (1884), 96 Ind. 461.

Although juvenile proceedings are sui generis and not strictly criminal proceedings, where the hearing may result in commitment to a state institution, the juvenile has most of the fundamental rights of criminal defendants. In Re Gault (1967), 387 U. S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428. That .case guarantees juveniles the right to counsel in juvenile proceedings. Ferguson v. Georgia, supra, holds that it is a denial of the defendant’s right to counsel to deny him the right to be sworn and testify as a witness in his own case.

We hold that it was error to deny appellant the right to be sworn as a witness and to testify in the juvenile proceedings against her.

Motion for new trial granted.

Hunter, J., concurs; Jackson, J., concurs in result; Givan, J., concurs in result with opinion; Arterburn, J., dissents with opinion.