Appeal from order of County Court of Philadelphia, Juvenile No. J-122145, in case of Commonwealth of Pennsylvania v. Norman Johnson.
John H. Lewis, Jr., with him Gregory M. Harvey, for appellant.
Alan J. Davis, Assistant District Attorney, with him Edwin D. Wolf, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Hoffman, J. Montgomery and Jacobs, JJ., concur in this result.
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On June 9, 1966, appellant, Norman Johnson, appeared before the Juvenile Division of the County Court of Philadelphia, on charges of rape, assault with intent to ravish, assault and battery and indecent assault. The facts in this case necessary for an understanding of our decision today are set forth more fully in the following discussion.
Appellant first argues that he was denied his constitutional privileges against self-incrimination. The lower court, in an excellent opinion, correctly stated the law and the uniform practice in juvenile courts of our Commonwealth at that time: "No juvenile in a proceeding before the juvenile court can refuse to testify. To permit this practice would simply nullify the intent and effect of the Juvenile Court Act. The privilege against self-incrimination provided by Article I, sec. 9 of the Pennsylvania Constitution does not apply to the questioning of a juvenile in a delinquency proceeding: Holmes' Appeal [379 Pa. 599, 109 A.2d 523
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(1954), cert. denied, 348 U.S. 973 (1955)]. We granted the accused this privilege after first refusing it, mainly because of the persuasive efforts of counsel and our respect for his position as advocate. However, the law in this Commonwealth on the point is clear and no error results from our having ordered the juvenile accused to testify or considered his testimony in framing the adjudication."*fn1
The above paragraph, however, no longer represents the constitutional standard of due process which must be afforded to juveniles, by reason of the holding in In re Gault, 387 U.S. 1, 55 (1967), that ". . . the constitutional privilege against self-incrimination is applicable in the case of juveniles as it is with respect to adults."
We conclude, therefore, that the court's acknowledged order that the juvenile testify constituted a denial of due process which requires the vacating of the lower court's order and a new hearing.
Ordinarily, such a determination would obviate our passing on further issues raised on appeal. Since one
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of these issues is inextricably bound to the new hearing which will be held, however, it is incumbent upon us to consider it at this time.
The argument most strongly urged upon us by appellant in this case is that he was denied the right of trial by jury in violation of the Constitutions of the United States and of the Commonwealth of Pennsylvania.
Section 5 of the Juvenile Court Law, Act of June 2, 1933, P. L. 1433, § 5, 11 P.S. § 247 provides: "Except as hereinafter provided, the court shall hear and determine all cases affecting children arising under the provisions of this act without a jury." Appellant argues that this particular provision is in violation of Article I, § 6 of the Constitution of Pennsylvania which provides, "Trial by jury shall be as heretofore, and the right thereof remain inviolate," since, under Article I, § 9 of the Constitution, an individual accused of rape was always entitled to a trial by an impartial jury.
It is of course true, as appellant suggests, that under these provisions, an ". . . individual is entitled to a public trial by an impartial jury of the vicinage in every situation in which he would have been entitled to such a trial at the time of the adoption of our State Constitution of 1790. . . ." William Goldman Theatres v. Dana, 405 Pa. 83, 93, 173 A.2d 59 (1961). We similarly agree that the change of the name of the offense from "rape" to "delinquency" would not, of itself, affect the constitutional right of the accused to a trial by jury. See Mountain v. Commonwealth, 68 Pa. Superior Ct. 100, 103 (1917). However, we reject appellant's conclusion that he would have been entitled to trial by jury prior to 1790 in this case.
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Appellant cites Mansfield's Case, 22 Pa. Superior Ct. 224 (1903), in which our Court was called upon to determine the constitutionality of the Act of May 21, 1901, P. L. 279, the first Juvenile Court Law in our Commonwealth. In Mansfield, the appellant was charged with larceny, but the formal charge was converted into a general charge of delinquency. Our Court decided that appellant would have had a right to jury trial upon the charge of common law larceny, and held, therefore, that the Act of May 21, 1901, which purported to deny the juvenile defendant that right, was in violation of Article I, § 6 and Article I, § 9 of the Constitution of this Commonwealth.
This holding, however, was impliedly overruled, by the Supreme Court of Pennsylvania in Commonwealth v. Fisher, 213 Pa. 48, 62 A. 198 (1905). In that case the Supreme Court was faced with a juvenile, charged with larceny, who was to be tried under the Act of April 23, 1903, P. L. 274, the predecessor to our present Juvenile Court Law. The Court in Fisher held that the juvenile's right to trial by jury did not exist prior to 1790 in these circumstances. The Court stated: "Such a [juvenile] proceeding is not a trial for an offense requiring a . . . jury. It was never so regarded in England, nor has it been in this country in but few instances, notably cases in New Hampshire, and in People ex rel. O'Connel v. Turner, 55 Ill. 280. That case was in effect overruled by later cases and is not now considered as authority: Petition of Ferrier, 103 Ill. 367; McLean County v. Humphreys, 104 Ill. 378. As said, in substance, in the Ferrier case, the proceeding is not one according to the course of the common law in ...