(dissenting).
I dissent.
John Doe appeals an Order of the Children’s Court that transferred him to District Court for prosecution as an adult for murder of his two-month-old child.
I dissent because the majority opinion has affirmed the transfer, absent a transcript of the proceedings below. This is a matter of first impression in New Mexico.
Section 13-14-27, N.M.S.A.1953 (Repl. Vol. 3, pt. 1) controlled the proceedings in the Children’s Court.
Subsection A provides that the Children’s Court may transfer a child for prosecution in the District Court after a petition has been filed that charged the child, 16 years of age or more, with a felony. A hearing is held to determine whether there are reasonable grounds to believe that the child committed a felonious delinquent act; that he is not amenable to treatment or rehabilitation, is not committable to an institution for the mentally retarded or mentally ill, and the interests of the community require that the child be placed under legal restraint or discipline. Notice in writing of the hearing must be given the child and his parents at least three days prior thereto.
Subsection B provides that the court must first hear all evidence relative to the felonious delinquent act alleged and make a specific finding thereof, and then hear any evidence relevant to the other issues.
Subsection C provides that the child not be prosecuted in the District Court unless the case has been transferred as provided in this section or § 13-14-27.1.
A. The Record in the District Court
On February 24, 1976, a petition was filed in the Children’s Court of Lea County that John Doe was in need of care and rehabilitation, was a delinquent child in need of supervision; that the fact which gave rise to the petition was John Doe’s murder of his child on February 22, 1976, contrary to § 40A-2-1 (murder in the first and second degrees).
On the same day, the attorney for the State filed a petition that a hearing be held to determine whether John Doe, 16 years of age, should be transferred to criminal court for trial as an adult for murder.
The parties stipulated that a neurological examination was necessary to a fair determination of the issues and John Doe was transported for neurological examination. The record is silent on whether an examination took place, and, if it did take place, what the results were.
The record indicates that a hearing was held on March 30, 1976, but no notice of the hearing appears as required by § 13-14 — 27(A) (3).
On April 12, 1976, the State filed requested findings and conclusions. On April 28, 1976, John Doe filed requested findings and conclusions.
On April 28, 1976, the trial court handed down its decision in which it concluded (1) that John Doe be transferred to District Court for prosecution as an adult; (2) that § 13-14-27.1, N.M.S.A.1953 is not unconstitutional, and John Doe is transferable and is transferred to District Court for prosecution under §§ 13-14-27 and 13-14-27.1, N.M.S.A.1953.
On the same day, the Order was entered that John Doe be transferred to District Court for prosecution as an adult.
On May 3, 1976, Notice of Appeal was filed.
B. The Record in Court of Appeals
On May 13, 1976, John Doe filed a Docketing Statement pursuant to Rule 205 of the Criminal Appellate Procedure Rules. Section 41-23A-205, N.M.S.A.1953. After a corrected Docketing Statement was filed, a member of this Court assigned this case to the “legal” calendar under Rule 207(c). A transcript of the proceedings was not ordered by this Court. John Doe moved to reassign this case to the “general” or “limited” calendar so that a transcript of the proceedings in the hearing before the Children’s Court would be available on appeal. A member of this Court denied the motion.
Our review is limited to a skeleton record.
C. John Doe has been denied his right to a transcript of the proceedings.
John Doe was entitled to a transcript of the proceedings held in the Children’s Court.
Section 13-14-36(A) and (D) of the Children’s Code reads:
A. Any party may appeal from a judgment of the court to the court of appeals in the manner provided by law. The appeal shall be heard by the court of appeals upon the files, records and transcript of the evidence of the children’s court. The name of the child shall not appear in the record on appeal.
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D. A child who has filed notice of appeal shall be furnished a transcript of the proceedings, or as much of it as is requested, without cost upon the filing of an affidavit . . . . [Emphasis added],
A transcript of the proceedings is essential to a fair determination of the issues raised on this appeal. I believe the trial court had reasonable grounds to believe that John Doe killed his child. I hesitate to agree, without any evidence, that he killed his child “with malice aforethought, with deliberation, by an act greatly dangerous to the lives of others”, etc.; that he was not mentally ill; that he is not amenable to treatment and rehabilitation as a child in available facilities, all as found by the trial court.
We should order a transcript of the proceedings and amended briefs before we arrive at our decision in this case.
D. The issues on this appeal are dependent on the evidence.
John Doe’s Docketing Statement raised the following issues: (1) whether there was sufficient evidence to support the court’s findings; (2) whether § 13-14-27.1 is constitutional. (The trial court transferred this case to the District Court pursuant to §§ 13-14-27 and 13-14-27.1.) (3) The trial court abused its discretion in ordering this case transferred.
The issues on this appeal are dependent on the evidence. A 16-year-old young man, charged with murder of his own two-month-old child, is entitled to a fair review of the transfer ordered in the Children’s Court.