
    The State of Ohio, Appellee, v. Worden, Appellant.
    (No. 34088
    Decided February 23, 1955.)
    
      
      Mr. Harry Friberg, prosecuting attorney, and Mr. Anthony G. Pizza, for appellee.
    
      Mr. Jas. Slater Gibson, for appellant.
   Taft, J.

The question to be determined is whether Section 5141.16, Revised Code, authorizes the Common Pleas Court to commit defendant to the Boys’ Industrial School merely on the recommendation of the Grand Jury. By its words, it does, but defendant argues that this section of the Code has been repealed by implication. This statutory section was enacted many years ago and was in substantially the same form when the Revised Statutes were enacted in 1880. See Section 755, Revised Statutes.

Section 2151.25, Revised Code, reads:

When a child is arrested under any charge, complaint, affidavit, or indictment, whether for a felony or a misdemeanor, such child shall be taken directly before the Juvenile Court. If the child is taken before a justice of the peace, mayor, judge of the police or municipal court, or judge of the Court of Common Pleas other than a Juvenile Court, such justice of the peace, mayor, judge of the police or municipal court, or judge of the Court of Common Pleas shall transfer the case to the Juvenile Court. The officers having such child in charge shall take him before the juvenile judge, who shall proceed to hear and dispose of the case in the same manner as if the child had been brought before him in the first instance. Upon such transfer or taking of such child before such judge, all further proceedings under the charge, complaint, information, or indictment shall be discontinued in the court of said justice of the peace, mayor, police or municipal judge, or judge of the Court of Common Pleas other than a Juvenile Court, and the case relating to such child shall thenceforth be within the exclusive jurisdiction of the Juvenile Court and shall be deemed to be upon a complaint filed in such court as fully as if the appearance of such child had been upon a complaint filed in and a citation or warrant of arrest originally issued by such court.” (Emphasis added.)

As indicated by the above-emphasized portions of this section, it apparently confers “exclusive jurisdiction” on the Juvenile Court with respect to a felony charge against a minor. Those portions of that section were first enacted as Section 1659, General Code, in 1931 (114 Ohio Laws, 121) and were included in Section 1639-29, General Code, as enacted in the revision, consolidation and codification of the juvenile laws of the state in 1937 (117 Ohio Laws, 529).

However, it is argued that Section 5141.16, Revised Code, may still be given effect by reason of the herein-before-emphasized portions of the provisions of Section 2151.26, Revised Code. Those portions were first enacted as Section 1639-32, General Code, as a part of the revision, consolidation and codification of the juvenile laws of the state in 1937 (117 Ohio Laws, 531). Somewhat similar provisions had been enacted as Section 1681, General Code, at the same time as what is now Section 2151.25, Revised Code, was first adopted in 1931 (see 114 Ohio Laws, 121).

It is obvious that the Common Pleas Court is not, to use the words of Section 2151.26, Revised Code, “authorized to make” any “such disposition * * * for a like act committed by an adult” as is contemplated and provided for by Section 5141.16, Revised Code. The Common Pleas Court is certainly not authorized to dispose of an adult, who is charged with committing a felony, by thus depriving him of his liberty “on the recommendation of the Grand Jury without presenting an indictment.” Therefore, our conclusion is that Section 5141.16, Revised Code, is entirely inconsistent with and necessarily repealed by the subsequently enacted provisions of Sections 2151.25 and 2151.26, Revised Code. That the General Assembly contemplated that its 1937 revision, consolidation and codification of the juvenile laws of the state might involve a repeal of sections not specifically repealed, is found in that part of the language of section 3 of that 1937 act, which reads: ‘ ‘ That * * * all other sections or parts of sections of the General Code inconsistent herewith, be, and the same are hereby repealed.” (117 Ohio Laws, 538.)

Since the Common Pleas Court is no longer authorized to act pursuant to Section 5141.16, Revised Code, the judgment of the Court of Appeals must be reversed and the cause remanded to the Common Pleas Court.

Judgment reversed.

Matthias, Hart and Zimmerman, JJ., concur.

Weygandt, C. J., Stewart and Behl, JJ., dissent.

Bell, J.,

dissenting. I regret that I cannot agree with the majority of the court upon the construction of the statutes involved in this appeal.

Section 215L25, Revised Code, reposes in the Juvenile Court exclusive jurisdiction over a child who has been arrested for a felony. Then Section 2151.26, Revised Code, provides, in substance, that in any case involving a delinquent child who has committed an act which could be a felony if committed by an adult, the juvenile judge may order that such child enter into a recognizance for his appearance before the Court of Common Pleas for such disposition as the Court of Common Pleas is authorized to make for a like act committed by an adult.

Let us examine the procedure to be followed under these statutes. A juvenile is arrested and charged with the crime of rape. Under Section 2151.25, such juvenile must be brought before the Juvenile Court. Then, under Section 2151.26, provided such juvenile is found to be a delinquent, the juvenile judge may order him to appear before the Court of Common Pleas. But, first, the juvenile must be found to be delinquent. And this can be done only after a hearing. It is only after this finding of delinquency that the juvenile judge may exercise some discretion. He may dispose of the matter by committing the juvenile to the appropriate correctional school, release him, or “bind, him over, ” so to speak, to the Court of Common Pleas. In any event, the authority of the Juvenile Court is exhausted at that point. In the event the juvenile judge exercises the third alternative, the responsibility for disposing of the matter lies in the Court of Common Pleas in the same manner as for a like act committed by an adult.

Does the procedure in the instant case, up to this point, follow- that procedure? The docket entries in the Juvenile Court reveal that on December 11, 1953, an affidavit charging delinquency was filed against the defendant, which affidavit was referred to a referee. The docket entry reads: “Hearing held, present at hearing Attorney Slater Gibson, Asst. Prosecutor Anthony Pizza, mother and father Charles Worden. * * * Charles found delinquent and remanded to the Child Study Institute pending investigation and final hearing.” (Emphasis added.)

Citations were then issued, and on January 15, 1954, the following docket entry appears: “Present: Child, father, mother, Atty. Gibson, Sikora, Lassner, Hoffman and Henahan. Hearing had. Court finds act committed or alleged to have been committed by child could be a felony * * *.” (Emphasis added.) The entry then orders him “bound over” to the Court of Common Pleas.

In the Juvenile Court two hearings were held. At the first, the defendant was found to be a delinquent. The second resulted in the “binding over.” At both these hearings not only was the defendant present, but his mother and father and attorney were all present. Certainly, all the juvenile’s rights were amply protected to this point. ’

When a juvenile is bound over “for such disposition as the Court of Common Pleas is authorized to make for a like act committed by an adult,” what can the Court of Common Pleas do? In the ease of an adult charged with a felony, there is only one thing the court can do. It can refer the matter to the Grand Jury. In the instant ease, upon the juvenile being recognized to it the Court of Common Pleas disposed of the matter exactly as it would have done in the case of an adult—by referring the matter to the Grand Jury.

And it is at this point that the beneficent attitude of the Legislature is evidenced by the discretion reposed in the Grand Jury. Section 5141.16, Revised Code, provides:

“If a crime is charged against a youth before a Grand Jury and the charge is supported by sufficient evidence to put him on trial, such youth may be committed by the court to the Boys’ Industrial School on the recommendation of the Grand Jury without presenting an indictment.”

This section, in substantially the same form, has been the law of Ohio since 1857. (See 54 Ohio Laws, 163.) Its obvious intent was the same then as now— to prevent the making of a criminal out of the juvenile and to provide for his schooling and rehabilitation. In my opinion, this section is not inconsistent with Sections 2151.25 and 2151.26, Revised Code. On the contrary, it depends for its applicability upon the compliance first with these sections of the Juvenile Code. Reading it in pari materia with these sections, it can only come into play after the proper arrest, hearings and “binding over” provided for in the Juvenile Code, which proceedings meet the requirements of due process of law.

Nor do I believe a hearing is necessary in either the Common Pleas Court or Juvenile Court after the Grand Jury has made its recommendation. Just prior to “binding him over,” the juvenile judge could have committed the juvenile to the Boys’ Industrial School. In recognizing the juvenile to the Court of Common Pleas, the juvenile judge divested himself of the authority so to do, and, in effect, transferred that authority to the Court of Common Pleas, provided the Grand Jury so recommended. I believe the law as expressed in Prescott v. State, 19 Ohio St., 184, 2 Am. Rep. 388, and Ex Parte Januszewski (C. C. A.), 196 F., 123, is controlling on this point.

The judgments of the lower courts should be affirmed.

Weygandt, C. J., and Stewart, J., concur in the foregoing dissenting opinion.  