People v. Lewis , 260 N.Y. 171 ( 1932 )

This is a juvenile delinquency proceeding under chapter 393 of the Laws of 1930, known as the Children's Court Act of the State of New York. Its proper title is not "The People of the State of New York against Arthur L. Lewis," as printed on the record and briefs. It was commenced and carried to judgment under the correct title of "In the Matter of Arthur Lewis, a child under the Age of Sixteen Years." (§ 10.) The distinction is not without significance.

Arthur Lewis, fifteen years old, in company with a younger boy, broke into a store in Binghamton and stole twelve dollars. Afterward the two boys, together with two other boys, made their way to Buffalo by means of three automobiles stolen in succession. Brought home, each boy, in separate proceedings, was charged in Children's Court with juvenile delinquency. In this particular case the charge was based upon the theft of the money. No fault is found with the proceedings had prior to the hearing. The hearings in the four cases were held in succession on the same day. Each boy was examined separately in his own proceeding in the presence of his parents, relatives and friends. When so examined the other boys were not in the room. The entire testimony thus taken was apparently deemed evidence in each case. The course of the hearing in this case, then, was as follows: The boy, in company with his mother, sister and the family clergyman, appeared and their appearances were noted. They were advised by the judge that they might have the aid of counsel if they so desired. The boy was then questioned by the judge. The other boys were thereafter examined in the manner above stated. All the testimony thus given appears in the record by question and answer. Each boy told substantially the same story. The testimony sustains the charge beyond any doubt. Indeed, there was full admission and no attempt at denial. The judge then inquired if any one desired to speak on behalf of the boy. There was no answer. The boy was thereupon adjudged a delinquent child and was committed to the State Industrial and Agricultural School at Industry, N Y

Upon appeal to the Appellate Division, the judgment was reversed. The decision is placed upon the ground that the specific act upon which the delinquency charge is based would be a felony if committed by an adult and must be proved in substantially the same manner. The judgment, it is said, is supported by no evidence received in the boy's presence, and hence rests solely upon his own confession made without a warning against self-incrimination.

Even in a criminal trial the confession which requires corroboration to sustain conviction is only the extra-judicial confession, not the admission made in open court on the witness stand. (16 C.J. 735, § 1514.) If the hearing here had been a criminal trial, its sole defect would have been the failure to warn against self-incrimination. But it was not a criminal trial and there was no defect.

The decision of this court in People v. Fitzgerald (244 N.Y. 307) is cited by respondent as conclusive authority. That case arose under the provisions (since repealed) of chapter 385 of the Laws of 1925, relating to the Children's Court, so called, of Buffalo. As the opinion points out, that act was little, if any, different in substance and effect from section 486 of the Penal Law. Broadly speaking, it did little more than to set up a separate local court to administer existing law in cases falling under that section. As the opinion also points out, a distinction existed under both statutes between children who fell within the neglect and delinquency provisions not involving acts of a criminal nature, and children who had committed specific acts which had always been and were still regarded as criminal. That distinction was a recognized if not an adjudicated one under section 291 of the Penal Code, which was the forerunner of section 486 of the Penal Law. In the one case, the proceeding was not regarded as criminal in its nature; rather, it was said to be benign and protective. In the other, though often resulting in a commitment to a reformatory instead of to a prison, the proceeding was one to punish for crime; the child was a "defendant" standing "in the attitude of a criminal duly convicted of crime." (Matter of Knowack, 158 N.Y. 482, 487.)

The Buffalo statute by its express terms established a Children's Court with "criminal jurisdiction." (§ 344-a.) The judge was vested with discretion to consider the child either as upon trial for the commission of a crime, or as one in need of the care and protection of the State. (§ 344-x.) If he took the latter view, he might suspend the trial, inquire into all the facts and surrounding circumstances and then, in lieu of proceeding with the trial, deal with the child in the manner provided in section 486 of the Penal Law in the case of a child without proper guardianship. If the trial proceeded, it might, upon "competent evidence," eventuate in a judgment of "conviction" whereby, among other things, a fine might be imposed. (§ 344-x.) A judgment upon conviction was appealable to the County Court as prescribed in title 3 of part 5, of the Code of Criminal Procedure, which is entitled "Of Proceedings in Courts of Special Sessions and Police Courts." The record in theFitzgerald case shows that the proceeding was begun by the filing of a petition, also called an information, charging juvenile delinquency by the commission of burglary and larceny. Upon the trial the "charge" was "burglary," not delinquency. The "plea" was "not guilty." Defendant was "informed of his constitutional rights." A judgment of "conviction" resulted, which was affirmed by the County Court and reversed by this court because the trial was a criminal trial in fact and in law, and the conviction rested not on competent evidence as required by the statute under which the proceeding was had, but on grossly incompetent evidence.

The proceeding here is under a widely different statute, which clearly and unmistakably abolishes the distinction referred to above between the two classes of children. The concept of crime and punishment disappears. To the child delinquent through the commission of an act criminal in its nature, the State extends the same aid, care and training which it had long given to the child who was merely incorrigible, neglected, abandoned, destitute or physically handicapped. All suggestion and taint of criminality was intended to be and has been done away with. The legislative intent is made as plain as language can make it. The statute (§ 45) says: "No adjudication under the provisions of this act shall operate as a disqualification of any child subsequently to hold public office or as a forfeiture of any right or privilege or to receive any license granted by public authority; and no child shall be denominated a criminal by reason of such adjudication, nor shall such adjudication be denominated a conviction. Neither the fact that a child has been before the Children's Court for hearing, nor any confession, admission or statement made by him to the court or to any officer thereof while he is under the age of sixteen years, shall ever be admissible as evidence against him or his interests in any other court."

"All provisions of the penal law or code of criminal procedure or other statutes inconsistent with or repugnant to any of the provisions of this act shall be considered inapplicable to the cases arising under this act."

The final mandate of the statute is that "This act shall be construed to the end that the care, custody and discipline of the children brought before the court shall approximate as nearly as possible that which they should receive from their parents, and that as far as practicable they shall be treated not as criminals but as children in need of aid, encouragement and guidance."

So much has been written, judicially and extra-judicially, about the sociological and legal aspects of juvenile delinquency, and about the public policy which underlies such statutes as the one in question, that a detailed discussion here would be trite. For the purposes of this case, the fundamental point is that the proceeding was not a criminal one. The State was not seeking to punish a malefactor. It was seeking to salvage a boy who was in danger of becoming one. In words which have been often quoted, "the problem for determination by the judge is not, Has this boy or girl committed a specific wrong, but What is he, how has he become what he is, and what had best be done in his interest and in the interest of the state to save him from a downward career." (23 Harvard Law Review, 104, 119, "The Juvenile Court," by Julian W. Mack.)

The evidence of his specific acts was relevant as an aid in answering those questions. Since the proceeding was not a criminal one, there was neither right to nor necessity for the procedural safeguards prescribed by constitution and statute in criminal cases. Many cases in many jurisdictions so hold. See,inter alia: Commonwealth v. Fisher (213 Penn. St. 48);Cinque v. Boyd (99 Conn. 70); State v. Elbert (115 Conn. 589); Wissenburg v. Bradley (209 Iowa, 813); Mill v.Brown (31 Utah, 473); Matter of Daedler (194 Cal. 320);Matter of Januszewski (196 Fed. Rep. 123); 1 Wharton Crim. Law [11th ed.], § 370, note 2.

Whatever the power of the Legislature may be in the case of adults (cf. Lawton v. Steele, 119 N.Y. 226, 233), there is no doubt about its power to say that an act done by a child shall not be a crime. "No act or omission is a crime except as prescribed by statute." (Penal Law, § 22; People v.Knapp, 206 N.Y. 373, 380.)

In the administration of Children's Courts there is evidence of a tendency to confuse the procedure usual in mere dependency cases with that necessary in delinquency cases involving an issue of fact. To serve the social purpose for which the Children's Court was created, provision is made in the statute for wide investigation before, during and after the hearing. But that investigation is clinical in its nature. Its results are not to be used as legal evidence where there is an issue of fact to be tried. When it is said that even in cases of law-breaking delinquency constitutional safeguards and the technical procedure of the criminal law may be disregarded, there is no implication that a purely socialized trial of a specific issue may properly or legally be had. The contrary is true. There must be a reasonably definite charge. The customary rules of evidence shown by long experience as essential to getting at the truth with reasonable certainty in civil trials must be adhered to. The finding of fact must rest on the preponderance of evidence adduced under those rules. Hearsay, opinion, gossip, bias, prejudice, trends of hostile neighborhood feeling, the hopes and fears of social workers, are all sources of error and have no more place in Children's Courts than in any other court. (People v. Pikunas, 260 N.Y. 72.) (Cf. U.S. Children's Bureau Publication No. 97 [1922], p. 55, "How Far Can Court Procedure Be Socialized Without Impairing Individual Rights," Judge Edward F. Waite; 13 Jour. Criminal Law and Criminology [1922], pp. 61, 64, "Socialization of Juvenile Court Procedure," Dr. Miriam Van Waters; "Juvenile Courts in the United States," H.H. Lou, p. 138.)

The rights of the child and of the parents are thus amply safeguarded, for the statute provides not only for appeals (§ 43) but it also provides (§ 25) that in delinquency cases, such as this, the court on its own motion or upon application by any interested person may set aside or arrest judgment or grant a new hearing in the exercise of its powers of protection over the child, either before or after final adjudication or commitment. Moreover, though it is not now necessary so to hold, it may be that the Supreme Court has power, under its general chancery jurisdiction, to intervene in any given case. (Matter of Knowack, supra.)

The judgment of the Appellate Division should be reversed and that of the Children's Court affirmed.