dissenting. The majority purportedly relies on R. C. 2151.26, Juv. R. 30, the doctrine of res judicata, and State v. Klingenberger (1925), 113 Ohio St. 418, to support the decision reached today. I am of the opinion, however, that the majority misconstrues R. C. 2151.26, improperly invokes res judicata, and erroneously resuscitates Klingenberger. Accordingly, I respectfully dissent.
R. C. 2151.26 states, in relevant part:
“(A) After a complaint has been filed alleging that a child is delinquent by reason of having committed an act that would constitute a felony if committed by an adult, the court at a hearing may transfer the case for criminal prosecution to the appropriate court having jurisdiction of the offense, after making the following determinations:
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“(2) There is’probable cause to believe that the child committed the act alleged;
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“(E) No child, either before or after reaching eighteen years of age, shall be prosecuted as an adult for an offense committed prior to becoming eighteen, unless the child has been transferred as provided in this section. * * *
“(F) * * * The transfer abates the jurisdiction of the juvenile court with respect to the delinquent acts alleged in the complaint.” (Emphasis added.)
According to R. C. 2151.26(A) the complaint sets in motion the process by which a Juvenile Court may transfer a case for criminal prosecution in the appropriate court. Such a transfer must be based on “probable cause * * * that the child committed the act alleged [in the complaint].” R. C. *1292151.26(A)(2). R. C. 2151.26(A)(1) and (A)(3) deal with factors other than probable cause that a Juvenile Court must consider, e.g., whether the child is at least 15 (R. C. 2151.26[A][1]) and, inter alia, whether he is amenable to care or rehabilitation as a juvenile (R. C. 2151.26[A][3]).
The (A)(1) and (A)(3) criteria generally respond to the United States Supreme Court’s landmark decision in Kent v. United States (1966), 383 U. S. 541, which held, at page 560, that the relinquishment of jurisdiction by a Juvenile Court was a “ ‘critically important’ proceeding” entitled to full procedural protection.5 Moreover, the probable cause requirement in the Ohio statute provides an additional safeguard that actually goes beyond Kent. See Davis, Rights of Juveniles, 4-15, Section 4.3 (1980). Thus Kent and R. C. 2151.26 provide a stiff standard that must be met before a Juvenile Court may waive jurisdiction. The state did not meet this standard in the instant case because no allegations regarding certain of appellees’ acts for which they were later convicted were before the Juvenile Court, and consequently, the Juvenile Court could not make the requisite probable cause determination with respect to acts not alleged in the complaint.6
The court, by way of syllabus, adopts appellant’s first proposition of law that “[a] proper relinquishment of jurisdiction over a juvenile * * * requires ‘adult’ prosecution for all pending and subsequent criminal offenses.” According to ap*130pellant, and now this court, the previous Summit County bind-over was “res judicata * * * in any adult court in * * * Ohio where knowledge of such adjudication was known as it was here.” This view is contrary to the intent of the statute, which speaks in terms of transferring “a case.”7 The statute requires a case-by-case determination such that the Juvenile Court may properly evaluate the child, balancing all the statutory factors. Appellant’s “res judicata” theory would not only permanently waive Juvenile Court jurisdiction but it would also effectively divest the juvenile authorities of the flexibility that historically has been the hallmark of the juvenile justice system.
I question the majority’s reliance on Whitehead v. Genl. Tel. Co. (1969), 20 Ohio St. 2d 108, to buttress the new found res judicata theory because Whitehead, a civil action, dealt with the derivative claims of the parents of an injured child. Moreover, a Whitehead-type estoppel is inapplicable herein because the Juvenile Court cannot be said to have ruled on probable cause if the act for which probable cause needed to be shown had never been before it.
In addition, the problems posed by paragraph one of the syllabus are manifest. For example, if a 15-year old is arrested for a felony and is bound over to be tried as an adult but is found innocent, then any subsequent proceedings against that juvenile prior to his or her reaching majority for any felony, irrespective of degree or circumstance, would necessarily be held in the adult division. I glean no intent in the statute to countenance the result dictated by the above hypothetical situation.
I find the majority’s marginal reference to R. C. 2151.26 (G) curious in several respects. R. C. 2151.26(G), as noted, did not become effective until November 23, 1981, well after the events in question herein occurred. If the court is pointing to R. C. 2151.26(G) for the purpose of showing the legislative intent underlying the prior statute, the court’s holding today under the old law would render R. C. 2151.26(G) a legislative redundancy. The fact that in 1981 the General Assembly specifically provided in R. C. 2151.26(G) that a previous bind-*131over of a juvenile is to have conclusive effect in certain circumstances clearly indicates that matters relating to the conclusiveness of prior proceedings were not within the purview of the former R. C. 2151.26. Thus, the citation to R. C. 2151.26(G) undermines rather than supports the majority’s analysis.
Furthermore, paragraph one of the syllabus of the majority opinion sweeps more broadly than R. C. 2151.26(G) in that under the recent enactment juveniles must not only have been previously bound over but they must also have been convicted, a requirement this court apparently is willing to dispense with. Consequently, the amendment of R. C. 2151.26, which purportedly was designed to facilitate and expedite the bindover process, turns out to be a limiting statute because this court today has managed to discover broader powers under the old statute than are provided under the new law. Little did the members of the General Assembly know when they passed R. C. 2151.26(G) to close a perceived loophole in R. C. 2151.26 that this court would sua sponte rewrite the statute for them and make the amendment effective well ahead of schedule.
The majority also, and gratuitously, offers the policy reason of “judicial econony” to support its res judicata finding. Judicial economy, as we all are aware, is a desirable goal. However, this goal should not be exalted to the point that we find ourselves ignoring statutory procedural protections established by the General Assembly and the clear statement of the United States Supreme Court.8 Moreover, I submit that the decision today will prove to be judicially uneconomical because it condones prosecutorial inefficiency. I strongly suspect that these cases are presently before us because of an avoidable communications breakdown early in the proceedings.9 Today’s holding sends out a clear signal that pro*132cedural gaffes born of carelessness will be corrected on appeal, thereby inspiring more protracted appeals to this court and the courts of appeals. The prospect of increasingly jammed appellate dockets does not exactly comport with my view of judicial economy.
I believe that the majority opinion engages in a vain effort to breathe new life into the 1925 Klingenberger case. Klingenberger did hold in paragraph two of the syllabus that “ * * * under the provisions of Section 1681, General Code, the grand jury is empowered to return any indictment proper under the facts submitted to it.” Klingenberger however, predated Kent and R. C. 2151.26. The former transfer statute, G. C. 1681, contained no probable cause requirement, and imposed no burden on the Juvenile Court to consider the other R. C. 2151.26 factors.10 Moreover, Klingenberger dealt with charges stemming from a single criminal incident. Thus, Klingenberger is distinguishable from the instant cases on both the law and the facts.
Another shortcoming of the majority opinion is that it fails to address specifically the issues raised in the cross-appeal taken in case No. 80-1760. I take the liberty of speaking to these issues even though I find them to be without merit.
Appellee and cross-appellant Adams contends that because evidence of the Wickliffe robbery was improperly before the jury, he was prejudiced on all counts and therefore is entitled to a reversal of the conviction for the Willoughby robbery. The state asserts that this question, not having been raised below, is not properly before this court. Even assuming, however, that cross-appellant’s position that the issue is *133proper as one that first surfaced at the Court of Appeals level, the clear, independent evidence presented regarding cross-appellant’s participation in the Willoughby robbery negates any claim of prejudice based upon the effect of the improper evidence of the Wickliffe robbery.
Cross-appellant Adams challenges the propriety of the grand jury proceedings, which, he alleges, pre-dated the Juvenile Court’s relinquishment of jurisdiction in contravention of R. C. 2151.25 and 2151.26. The juvenile division waived jurisdiction at the September hearing, journalized its ruling in November accompanied by a nunc pro tunc entry relating back to the September hearing date. The indictments bear an October date but were not filed until November, subsequent to the Juvenile Court’s nunc pro tunc journalization. The Court of Appeals stated that the “ ‘nunc pro tunc’ entry merely corrected the judicial records so as to correctly reflect the earlier court decision.” This ruling is correct.
Cross-appellant’s final proposition concerns whether the trial court abused its discretion in failing to make the grand jury record public. The basis for the request to open the record was the sixth count of the original indictment, alleging a concealed weapon violation for which no evidence was ever presented. (This count was ultimately directed out by the trial court.) Cross-appellant contends that the faulty sixth count indicated that “the grand jury did not vote separately as to each count * * * as is required by Crim. R. 6(F)” and therefore, “the entire indictment was improper ab initio, thus patently prejudicial.” Crim. R. 6(C) states, in part, that “the [grand jury] record shall not be made public except on order of the court.” The Court of Appeals found no abuse of discretion and further noted that cross-appellant was not prejudiced by the trial court’s ruling in that count six had been directed out. On balance, the policy of preserving grand jury secrecy outweighs cross-appellant’s mere speculation that the grand jury might have acted improperly.
For the reasons hereinbefore stated I would affirm the Court of Appeals in all respects.
W. Brown, J., concurs in the foregoing dissenting opinion.Although the majority opinion acknowledges Kent in a footnote, I disagree with the assertion that “Kent does not pertain.” Apropos to the instant cases, the Kent court stated at pages 560-561:
“ ‘ [I] t is implicit in [the Juvenile Court] scheme that noncriminal treatment is to be the rule — and the adult criminal treatment, the exception which must be governed by the particular factors of individual cases.’ * * *
“Meaningful review requires that the reviewing court should review. It should not be remitted to assumptions.”
As for the majority’s assertion that Juvenile Court proceedings are civil in nature, see In re Gault (1967), 387 U. S. 1,50, wherein the “ ‘civil’ label-of-convenience” as applied to juvenile courts received short shrift.
The majority’s statement to the effect that R. C. 2151.26(F) does not imply “that the Juvenile Court regains jurisdiction * * * as to any future [criminal acts]” inverts the statutory scheme. The Juvenile Court has “exclusive original jurisdiction,” R. C. 2151.23, until it relinquishes its jurisdiction pursuant to R. C. 2151.26. The Juvenile Court may not consistent with the statute relinquish jurisdiction over future acts for the simple reason that future acts cannot be alleged in a complaint before they occur.
The majority focuses on two words, “the child,” in the statute but does not, in my opinion, consider these words contextually, particularly with reference to the “transferred as provided in this section” language that immediately follows.
See, e.g., the recent bench colloquy on “judicial economy” between United States Supreme Court justices and defense counsel as summarized in 50 U.S.L.W. 3363, November 10, 1981: Justice Rehnquist asked, “Why should the taxpayers have to foot the bill” of confining the defendant for life under a psychiatrist’s care? Defense counsel replied, “It would be cheaper than executing him.” Justice Marshall later retorted, “It would have been cheaper still just to have shot the defendant at the time of his arrest.” Defense counsel, “That’s correct.” Justice Rehnquist did not respond to this.
It is perhaps worth noting that the Summit County authorities had no apparent difficulty in binding over these appellees in accordance with the statute and Juv. R. 30.
The majority disingenuously asserts that “Klingenberger has not been overruled.” Kent, which established procedural standards far more stringent than those approved in Klingenberger, and R. C. Chapter 2151 have, as a practical matter, overruled Klingenberger. Klingenberger was decided on statutory grounds and the repeal of the statutory underpinning necessarily calls into question a judicial decision based on the repealed statute.
Moreover, to state that “[wjhile the precise words of G. C. 1681 andR. C. 2151.26 vary, the substance and aim * * * remain the same” begs the question of why the words were changed. If the General Assembly wanted to incorporate G. C. 1681 into the Revised Code without changing the language, it would have done so. This court is not privileged to disregard unambiguous statutory language whenever it prefers the law as repealed over the law now in effect simply because “the substance and aim * * * remain the same.”