State in Interest of Simon

295 So. 2d 473
CourtLouisiana Court of Appeal
DecidedMay 23, 1974
Docket4652
StatusPublished
Cited by6 cases

This text of 295 So. 2d 473 (State in Interest of Simon) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State in Interest of Simon, 295 So. 2d 473 (La. Ct. App. 1974).

Opinion

295 So.2d 473 (1974)

STATE of Louisiana In the Interest of James L. SIMON.

No. 4652.

Court of Appeal of Louisiana, Third Circuit.

May 23, 1974.
Rehearing Denied June 13, 1974.

*474 Louis B. Guidry, Lake Charles, for defendant-appellant.

Bernard Marcantel, Dist. Atty., Jennings, for plaintiff-appellee.

Before FRUGÉ, HOOD and WATSON, JJ.

WATSON, Judge.

This is an appeal from the judgment of a juvenile court, appellate jurisdiction being vested in this court by Article 7, Section 29 of the Louisiana Constitution of 1921, as amended.

Following a hearing in the juvenile court, the appellant was committed to the Department of Corrections, State of Louisiana, under a judgment which reads as follows:

"It is therefore ordered, adjudged and decreed that James Lynell Simon, a minor born the 23rd day of September, 1959, is adjudged a child who has committed an offense not classified as criminal but who is in need of supervision, care and rehabilitation and is committed to the care of the Department of Corrections, State of Louisiana, for an indefinite period not to exceed his majority." (Tr. 5).

On appeal, counsel for the appellant contends that the juvenile court erred in committing appellant. The specific argument is that, when the state failed to establish that appellant had violated the specific statute with which he was charged, the juvenile court made the commitment on another ground, as stated in the judgment quoted above.

A juvenile proceeding is initiated by the filing of a petition under LSA-R.S. 13:1574. This statute outlines the methods by which juvenile proceedings are commenced and provides for the contents of the petition, including the following requirements:

C. The petition shall set forth with specificity:
1. The facts which bring the child within the provisions of this chapter, together with a statement, when delinquency is alleged, that the child is in need of supervision, care, or rehabilitation. If a violation of law is the basis for filing the petition, the petition shall cite the statute or municipal ordinance which the child is alleged to have violated;

In the case before us a petition was filed on March 15, 1974 by the District Attorney of the Thirty-first Judicial District. It is not contended that the petition is defective. Appellant's claim is that the petition sets forth the information required by LSA-R. S. 13:1574, but that he was committed for some other charge or offense. The portion of the petition which is pertinent to the contention being made by appellant, reads as follows:

"... said child is within the provisions of Title 13, Sections 1569, et seq., *475 and is a child in need of supervision, care, and rehabilitation for having committed the following delinquent act, towit: On or about January 18, 1974, James L. Simon did unlawfully commit the crime of receiving stolen things by receiving one ring, valued at $250.00, property of Mrs. Wade Lormand, under circumstances which indicate that the said James L. Simon knew or had good reason to believe that the said ring was the subject of a theft, in violation of L. R.S. 14:69."[1]

Facts

The facts surrounding the alleged offense, as developed by the hearing in juvenile court, are that the appellant was given a ring to hold by another youth during a physical education class. The appellant, according to the testimony of the other youth, put the ring in his pocket, and later in the day, the appellant was requested to return the ring. The appellant, again according to the other youth, said he did not have the ring so the other youth complained to the school principal. The appellant was summoned from his class and instructed to get the ring from his locker. When appellant returned from the locker area, he told the principal that he had lost the ring coming up the stairs. The youth who gave appellant the ring later searched for it, but, according to his testimony, he was unable to find the ring. On cross-examination, it was developed that the youth had not told appellant that the ring was stolen. He apparently led appellant to believe that he had purchased the ring.

The school principal confirmed that he had called appellant in, that appellant informed him that the ring was in his locker and that appellant was instructed to bring it to the office. The principal testified further that when appellant came back, he reported that he had lost the ring.

Another witness was a thirteen year old youth who testified that appellant had asked him to help look for the ring. He indicated that he did not actually search for it because he was in a hurry.

The only other witness to testify was a State Juvenile Probation and Parole Officer, Joe Fairfield. This officer testified that he knew appellant and that he had consulted with him about the loss of the ring. He testified that he had also discussed the matter with appellant's parents. Mr. Fairfield also described his search for the ring at the school building, which actually appears to have been an attempt to duplicate the loss of the ring or determine the likelihood of an occurrence such as appellant had described previously to the probation officer. The substance of Mr. Fairfield's testimony was that the story told to him by appellant as to how the ring was lost was improbable.

*476 Appellant did not testify but invoked his constitutional privilege not to do so. Clearly, a juvenile is not required to testify if he chooses to remain silent and this is not to be construed against him. Amendment V, United States Constitution; LSA-R.S. 13:1579.

Pre-Hearing Report

No mention is made here of certain information which is contained in a document appearing in the record at TR. 6-11, entitled "Confidential Pre-Hearing Investigation Report". First, there is no method of determining whether the juvenile court relied on the information contained in this document in considering appellant's case. From the title of the document an implication arises that this report was submitted to the juvenile court prior to the hearing and determination of appellant's case. Such a procedure has been the practice in some juvenile courts in the past.[2] We omit any reference to the information contained in the report for another reason. We believe it to be reversible error for a juvenile court to receive a report containing hearsay evidence, opinions and recommendations prior to making an adjudication. In re State In the Interest of Elliott, 206 So.2d 802 (La.App. 2 Cir. 1968); Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). It is interesting to note that our brothers of the Second Circuit reached a similar conclusion in the Elliott case, supra, which involved a charge of neglect, not delinquency. They raised a serious question as to the validity of LSA-R.S. 13:1579.1 which at that time authorized receipt of hearsay evidence:

"The introduction of such testimony is clearly unauthorized under the general rules long and well established and recognized in the jurisprudence of this State, for the reason among many others, that the party against whom the evidence is sought to be used is deprived of the right of cross-examination to test and determine the truth of all such statements." 206 So.2d 804.

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295 So. 2d 473, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-in-interest-of-simon-lactapp-1974.