never should it be made an instrument for the denial to a minor of a constitutional right or of a guarantee afforded by law to an adult.'
The Court further stated that the motion to vacate and set aside the order committing the minor to the Youth Authority of California 'should have been granted thereby enabling said minor, with the aid of counsel, to properly prepare and present a defense to the charges preferred against him.'
The opinion of the learned Judge in the Shioutakon case, supra, is interesting and not without authority, but not convincing. There is no unanimity of opinion among the various courts as to whether or not constitutional guarantees are applicable to juvenile offenders. The position is best stated in an annotation at 151 A.L.R. 1229:
'Such suggestions as may be gathered from cases discussing the general question of constitutional guaranties as applicable to juvenile offenders * * * in juvenile court proceedings, indicate unsettled and conflicting views',
and further the opinions of some courts
'respecting the constitutional issues presented, or which may, upon proper presentment, become directly involved, illustrates the existence of a sharp divergence of views as to the applicability of constitutional limitations to juvenile courts.'
I recognize that the Juvenile Court was created for the disposition of delinquent children and is not a criminal court. I also recognize that a hearing in the Juvenile Court is an adjudication upon the status of a child in the nature of a guardianship imposed by the State as parens patriae to provide the care and guidance that, under normal circumstances, would be furnished by the natural parents. I hold only that where the child commits an act, which act if committed by an adult would constitute a crime, then due process in the Juvenile Court requires that the child be advised that he is entitled to the effective assistance of counsel, and this is so even though the Juvenile Court in making dispositions of delinquent children is not a criminal court.
In other words, in the District of Columbia, where the charge in the Juvenile Court is one of crime which, because of charitable considerations for the welfare of the child, is called 'juvenile delinquency', then it must be surrounded by the guarantees and limitations of the Federal Constitution.
It is interesting to note that the distinguished Chief Judge of the Municipal Court of Appeals for the district of Columbia, in a most recent case, Gaddis v. Hongell, 117 A.2d 230, 231, said
'As is well known and understood, the procedures established for the small claims court were designed to make the services and protection of that court available to every litigant, plaintiff or defendant, without a lawyer. But as ought to be equally well understood, it was never intended that lawyers be barred from that court or that there be any interference with their traditional functions when they appear there.'
This certainly is true and the same principle is applicable here. The Congress, in enacting the Juvenile Court Act, which designated that certain crimes when committed by a child to be juvenile delinquency, never intended that the child be barred from the protection of the Federal constitution, but rather intended, out of charitable considerations for the child's welfare, that an additional protection be granted to the child by forbidding the stigma of the word 'crime' to be attached to a person under the age of eighteen years.
One more matter deserves comment. It is not disputed, aside from the constitutional considerations, that petitioner would have been entitled to a jury trial. This being so, who is to make the decision as to whether or not a jury trial should be demanded? Is a sixteen year old boy capable of deciding whether he should be tried by a jury or tried by a Judge? I do not think so.
Chief Judge Edgerton of the United States Court of Appeals for the District of Columbia Circuit said in Williams v. Huff, 79 U.S.App.D.C. 31, 142 F.2d 91, 92:
'It seems to me to follow as a matter of law that a boy of seventeen cannot competently waive his right to counsel in a criminal case.'
Courts should not brush aside lightly the guarantees of the Federal Constitution on some highly technical theory, and until the United States Court of Appeals for the District of Columbia Circuit has directed that the rights guaranteed by the Sixth Amendment are not available to the petitioner, I must grant the relief sought. The petitioner shall be released and counsel shall prepare an appropriate order not inconsistent with this memorandum.
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