In Re Meyers

214 S.E.2d 268 (1975)

25 N.C. App. 555

In the Matter of Tony MEYERS, age 13.

No. 7419DC1006.

Court of Appeals of North Carolina.

May 7, 1975.

*269 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Ann Reed, Raleigh, for the State.

Ottway Burton, Asheboro, for juvenile appellant.

PARKER, Judge.

In a criminal action "[w]here prayer for judgment is continued and no conditions are imposed, there is no judgment, no appeal will lie, and the case remains in the trial court for appropriate action upon motion of the solicitor." State v. Pledger, 257 N.C. 634, 638, 127 S.E.2d 337, 340 (1962). In a juvenile proceeding, however, the statute, G.S. § 7A-289, expressly provides that an appeal may be taken "from an adjudication or any order of disposition." (Emphasis added.) As was pointed out in the opinion on the prior appeal of this case, the statute is intended to remedy the long-standing practice of indefinite continuations of disposition of juvenile cases. We held on the prior appeal that where the time lapse between adjudication and order of disposition is short and reasonable and for a specific purpose, appeal should be delayed until the disposition. In the present posture of this case, there has been an adjudication of delinquency but the order of disposition has been indefinitely delayed. Therefore, this appeal from the adjudication of delinquency may now be maintained.

At the hearing on the petition, the deputy sheriff who investigated the entry into the Pierce home testified that the respondent child admitted he had been in the home. This admission was made in response to a *270 question from the deputy after the deputy had picked up the child and a young companion and was taking them back in his car toward the Pierce home. The deputy testified that he did not advise the child of any of his rights because he had previously talked to Mrs. Pierce and understood that she did not want to prosecute. Objections to the deputy's testimony as to the child's admission were overruled and timely motion to strike was denied, to which actions of the court appellant now assigns error.

Clearly, had this been an ordinary criminal prosecution the testimony of the deputy sheriff as to the accused's extrajudicial inculpatory admission should have been excluded. The admission was made in response to a direct question from the officer and at a time when the respondent was effectively in custody. Not only was there a total failure to comply with the Miranda requirements, but there was also no finding by the court as to the voluntariness of the statement. Although a confession is not inadmissible merely because the person making it is a minor, Annot., 87 A.L.R.2d 624 (1963), to be admissible it must have been voluntary, and the age of the person confessing is an additional factor to be considered in determining voluntariness. The fact that the present proceeding is not an ordinary criminal prosecution but is a juvenile proceeding under G.S. Chap. 7A, Article 23, does not lessen but should actually increase the burden upon the State to see that the child's rights were protected. Juvenile proceedings to determine delinquency, though not the same as criminal prosecutions of an adult, may nevertheless result in commitment to an institution in which the juvenile's freedom is curtailed. We find error in the admission in evidence of the deputy sheriff's testimony as to respondent child's admission that he had been in the Pierce home.

In fairness to the deputy sheriff who was the witness in this case, it should be noted that nothing in the record suggests any improper conduct on his part. On the contrary, the record indicates that he investigated with speed and efficiency what turned out to be a wrongful but minor trespass by two children and that he failed to advise the children as to their constitutional rights only because he justifiably understood at the time that no court proceedings of any nature were contemplated. Unfortunately, however, the present proceedings did ensue, and for error in admitting the officer's testimony noted above, the appellant is entitled to a new hearing.

Since there must be a new hearing, we direct attention to the following provision in G.S. § 7A-285 relating to juvenile hearings:

"If the court finds that the conditions alleged do not exist, or that the child is not in need of the care, protection or discipline of the State, the petition shall be dismissed." (Emphasis added.)

In view of the information contained in the court counselor's report, the court may wish to give consideration to that provision of the statute in any further proceedings in this matter.

The order adjudicating appellant a delinquent is reversed and this proceeding is remanded to the district court.

Reversed and remanded.

VAUGHN and MARTIN, JJ., concur.