I must respectfully dissent from the majority opinion in this case for the reason that I am firmly convinced that you cannot, judicially, in one breath treat a child as a child, and in the next breath treat him as an adult. My position is that I concur in the finding of the trial court that Michael Lee Baker was a delinquent child within the meaning of the statute, and he should have been sentenced accordingly. However, that part of the statute referred to in the majority opinion, which empowers the Juvenile Court Judge to imprison in the Mansfield Reformatory for an indefinite term, is unconstitutional for the reason that if such child is to be treated as an adult he is entitled to all the rights, privileges and immunities of an adult. A long dissertation in this appeal would be of no avail, but certainly we should treat children with more leniency than, or certainly with as much leniency as, we treat adults. I would, therefore, hold that part of Section 2151.35 (E), Revised Code, is, and should be, declared unconstitutional; and this case deserves to go to the Supreme Court of Ohio, and later on to the Supreme Court of the United States. The case of In re Gault,387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428, does not deal in any way with the past adjudication or disposition of sentences. I, therefore, feel that this case should be remanded to the Juvenile Court for sentence under the Juvenile Court Act, but in view of the majority opinion that is impossible. And I would like to see it go to a higher court for the questions involved. An illustration of what the dissenting member of this court means in this case is that, if Michael Lee Baker
is to be sentenced as an adult, he is entitled to the benefit of all the decisions protecting the constitutional rights of adults, in a line of cases by the United States Supreme Court, beginning with Mapp v. Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081,81 S. Ct. 1684, 84 A. L R. 2d 933, and continuing with Gideon v.Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792, 93 A.L.R. 2d 733; Massiah v. United States, 377 U.S. 201,12 L. Ed. 2d 246, 84 S. Ct. 1199; Escobedo v. Illinois, 378 U.S. 478,12 L. Ed. 2d 977, 84 S. Ct. 1758; Griffin v. California,380 U.S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229; Kent v. United States,383 U.S. 541, 16 L. Ed. 2d 84, 86 S. Ct. 1045; Miranda v.Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A.L.R. 3d 974; and United States v. Wade, 388 U.S. 218,18 L. Ed. 2d 1149, 87 S. Ct. 1926.
In conclusion, it would, therefore, be my view that the case should be remanded to the Juvenile Court for sentence in compliance with the Juvenile Court Act, as I believe that the decision in this case relating to the sentence to the Mansfield Reformatory violates not only the letter but the spirit of the Juvenile Court Act. As a former Juvenile Court Judge, many years ago, I am indeed proud of the fact that not a single juvenile who came before me as such was ever later committed to a penal institution for adults. Furthermore, a recent decision in the case of In re J. F., 17 Ohio Misc. 40, written by Judge Walter Whitlatch, which I think is good law, holds that when a delinquent child becomes 21 years of age the jurisdiction of the Juvenile Court terminates; also, a recent decision in the case of State v. Coulter, 17 Ohio Misc. 55, holds that the judgment and sentence should be vacated where the defendant was not advised of his right to counsel; and the United States Supreme Court has held, as we all know, that this provision of the law applies to juveniles as well as to adults.