The act of delinquency for which the appellant, a 16 year-old boy, was charged and stood trial in the Juvenile Court of Defiance County was causing "malicious damage to three farm tractors * * * in the amount of $575.10." The age of the appellant and the nature of the charge against him thus brought him fully within the scope of that portion of Section 2151.35, Revised Code, permitting the court, if it found him to be delinquent, to proceed as follows:
"(E) Commit a male child over sixteen years of age who has committed an act which if committed by an adult would be a felony to the Ohio state reformatory; * * *."
The Supreme Court of the United States held in In *Page 249 re Gault, 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428, that neither the Fourteenth Amendment to the Constitution of the United States nor the Bill of Rights is for adults only; that a Juvenile Court adjudication of delinquency which might result in the subjection of the juvenile to loss of his liberty for years is comparable in seriousness to felony prosecution, and that the essentials of due process in such proceeding require that adequate advance notice of the charges be given; that notice of the right to counsel be given and counsel be provided to indigents; that as to the privilege against self-incrimination, the proceeding must be regarded as criminal and such privilege be preserved; and that the right to confront and cross-examine witnesses against the juvenile must be observed.
Concededly, the case of In re Gault did not specifically decide the right of a juvenile charged with an offense which would be a felony if committed by an adult to be determined delinquent by evidence beyond a reasonable doubt and did not specifically determine the right of such juvenile to be indicted and his right to be tried by a jury. The Supreme Court of Ohio decided in the case of In re Darnell, 173 Ohio St. 335, that a juvenile may be committed to the Ohio state reformatory under the provisions of Section 2151.35(E), Revised Code, hereinbefore quoted, without indictment or jury trial. That decision remains unreversed and unaffected by the decision of any higher authority, and we are conclusively bound by it. 14 Ohio Jurisprudence 2d 653, Courts, Section 224, and authorities therein cited. On the other hand, the Supreme Court of Ohio has never decided the specific question as to whether the determination of delinquency in such cases must be by proof beyond a reasonable doubt. It did not so decide, as asserted by Judge Younger, on March 15, 1967, in case number 40712, when it overruled the motion to certify the record and dismissed the appeal from In re Whittington, 13 Ohio App. 2d 11, for the reason that no substantial constitutional question was involved.
We thus have no precedent binding upon this court requiring it to find that proof by a preponderance of the evidence *Page 250 is sufficient in a delinquency proceeding brought against a juvenile over sixteen years of age when the determination of delinquency is based on the commission by him of an act which if committed by an adult would be a felony and where such determination might result in his being committed to the Ohio state reformatory for years. Under these circumstances we are free to follow and, in my opinion, should follow the spirit and reasoning of the Gault decision, as did the Supreme Court of Illinois in the recent case of In re Urbasek, 38 Ill. 2d 535,232 N.E.2d 716, decided November 30, 1967, and hold that a finding of delinquency for misconduct, which if committed by an adult would be a felony, and which might result in the juvenile being subjected to loss of his liberty for years, is comparable in seriousness to a felony prosecution, and is valid under the due process clause of the Fourteenth Amendment to the Constitution only when the acts of delinquency are proved beyond a reasonable doubt to have been committed by the juvenile charged.
It is apparent from the record before us that the Judge of the Juvenile Court did not apply this rule of proof and committed error prejudicial to the defendant-appellant in not doing so. In such event we cannot, when there is conflicting evidence, substitute our judgment on the evidence for that of the trial judge. The judgment of the Juvenile Court should be reversed and vacated and the cause be remanded for new trial and further proceedings as provided by law.
SMITH, J., of the Sixth Appellate District, sitting by designation in the Third Appellate District.
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