State v. Frazier , 254 N.C. 226 ( 1961 )

118 S.E.2d 556 (1961) 254 N.C. 226

STATE
v.
Lincoln FRAZIER.

No. 78.

Supreme Court of North Carolina.

March 8, 1961.

T. W. Bruton, Atty. Gen., for the State.

Charles L. Abernethy, Jr., New Bern, for defendant-appellant.

PARKER, Justice.

The evidence and the findings of fact show that Lincoln Frazier is a fifteen-year-old boy residing in Craven County, and is delinquent within the intent and meaning of G.S. § 110-21. The Juvenile Court of Craven County had jurisdiction over him by virtue of the provisions of the same statute.

Defendant assigns as error the ruling of Judge Morris that no issues of fact arise on the appeal to be submitted to a jury. This assignment of error is without merit.

The various training schools in North Carolina established by Chapter 134 of the General Statutes were created by the General Assembly for the training and moral and industrial development of the criminally delinquent children of the State. The purpose of establishing the training schools is not criminal or penal, but to meet, in some measure, the duty imposed upon society, for its own protection, and for the good of the child.

This Court said in In re Watson, 157 N.C. 340, 72 S.E. 1049, 1053: "The question as to the extent to which a child's constitutional rights are impaired by a restraint upon its freedom has arisen many times with reference to statutes authorizing the commitment of dependent, incorrigible, or delinquent children to the custody of some institution, and the decisions appear to warrant the statement as a general rule that, where the investigation is into the status and needs of the child, and the institution to which he or she is committed is not of a penal character, such investigation is not one to which the constitutional guaranty of a right to trial by jury extends, nor does the restraint put upon the child amount to a deprivation of liberty within the meaning of the Declaration of Rights, nor is it a punishment for crime."

This Court also said in State v. Burnett, 179 N.C. 735, 102 S.E. 711, 714: "To the objections frequently raised that these statutes ignore or unlawfully withhold the right to trial by jury, these and other authorities well make answer that such legislation deals, and purports to deal, with delinquent children not as criminals, but as wards, and undertakes rather to give them the control and environment that may lead to their reformation, and enable them to become law-abiding and useful citizens, a support and not a hindrance to the commonwealth."

Our cases are in accord with the view generally taken by Courts in other jurisdictions. 31 Am.Jur., Juvenile Courts, etc., § 67; 50 C.J.S. Juries § 80; Annotation, 67 A.L.R. 1082.

The only exception appearing in the record is the one discussed above. Defendant did not except to the judgment of Judge Morris but appealed to the Supreme Court. The appeal to this Court is an exception to the judgment, Bennett v. Attorney General, 245 N.C. 312, 96 S.E.2d 46, and presents only the face of the record for review and inspection, King v. Rudd, 226 N.C. 156, 37 S.E.2d 116; Sprinkle v. City of Reidsville, 235 N.C. 140, 69 S.E.2d 179.

G.S. § 110-24 provides: "The court shall maintain a full and complete record of all cases brought before it, to be known as the juvenile record." Defendant contends that there is a fatal defect in the record because the petition by the Welfare Department was not produced at the hearing before Judge Morris. The record clearly shows that such a petition was filed with the Juvenile Court. The judge of that court testified before Judge Morris: "I kept it (the petition) on my desk for some time waiting for Mr. Abernethy to come over to see it, and it must have been misplaced." There is nothing in the record to show that a diligent search was made for the petition, and it could not be found. There is in the record the order of the Juvenile Court with its specific findings of fact. The court had jurisdiction in the premises. We do not consider the misplacing of the petition a fatal defect, and this contention is overruled. See In re Prevatt, 223 N.C. 833, 28 S.E.2d 564.

G.S. § 110-40 provides for an appeal from any judgment or order of the Juvenile Court to the Superior Court having jurisdiction in the county. This section reads in part: "The judge of the superior court shall on receiving a statement or record of appeal from the juvenile court hear and determine the questions of law or legal inference and the judge shall deliver to the clerk of the superior court of the county in which the action or proceeding is pending his order or judgment. The clerk of the superior court shall immediately notify the judge of the juvenile court of the order or judgment."

Judge Morris stated in his order, while he was of opinion that he was not required to hear the matter de novo, he did hear evidence both from the State and from the defendant, and considered the record, including the findings of fact in the order of the Juvenile Court. The record shows that Mr. Abernethy cross-examined at length the witnesses for the State, and offered four witnesses for defendant. Judge Morris in fact had a full scale hearing, and his conclusion "that the findings of fact of the Judge of the Juvenile Court to the effect that the defendant Lincoln Frazier is a delinquent and should be committed to a training school for boys is amply supported by evidence in this case" is, under the circumstances here, tantamount to such a finding by Judge Morris. The record shows that Judge Morris in effect not only reviewed the findings of fact, conclusions and order of the Juvenile Court, but also heard the appeal de novo.

The evidence at the hearing before Judge Morris amply supports the findings of fact, the conclusions, and the order of the Juvenile Court, and also amply supports Judge Morris' findings of fact, conclusions, and order. No error of law appears on the face of the record. All of defendant's contentions have been considered, and are overruled. The order of Judge Morris is

Affirmed.