Thomas v. United States, 121 F.2d 905 (D.C. Cir. 1941)

MILLER, Associate Justice.

Appellant was accused in the Juvenile Court of the District of Columbia— in accordance with the provisions of the Act of June 18, 19121 — of being the father of an illegitimate child. Following a trial by jury he was found guilty. We allowed an appeal.2 One of the assignments of error challenged the refusal of the trial court to grant a one-day continuance, in order that appellant’s counsel could prepare and submit an affidavit in support of his motion for a new trial. The motion for a continuance was made on the day which had been theretofore set for argument of the motion for a new trial. Counsel stated orally that the affidavit which he proposed to submit “would give an entirely different slant on the case.” Although a motion for a continuance is submitted to the sound discretion of the court and its ruling thereon should not be disturbed in the absence of abuse of that discretion;3 nevertheless, in the interest of justice and upon a stipulation of counsel representing both parties, this court remanded the case to the trial court for the purpose of hearing again the motion for a new trial. The trial judge was instructed that, in the event the motion should be again denied, a supplemental record should be filed in this court, in order that the case might then be disposed of, on the other assignments of error. The trial judge proceeded as directed; upon the rehearing the motion for a new trial was again denied; judgment was entered against appellant and a supplemental record has been filed in this court. This record fails to reveal any abuse of discretion

or reason to disturb the decision of the trial court.

On cross-examination at the original trial, the complaining witness was asked by appellant whether she “had been arrested and tried for larceny in the Juvenile Court on or about July, 1939.” The court, upon objection of the government, refused to allow the question. This — contrary to appellant’s contention — was eminently correct. The District of Columbia Code4 provides that no person shall be incompetent to testify, by reason of his having been convicted of crime, but that such fact may be given in evidence to affect his credit as a witness. However, to constitute a conviction within the meaning of this provision, there must be either a plea or verdict of guilty and, in addition, judgment and sentence pronounced by the court.5 Accordingly, a witness may not be asked if he'has been indicted for a crime,6 or even if he has been tried and convicted, if the conviction was later set aside and a new trial granted.7 It follows that the question asked, pertaining to arrest and trial and not to conviction, was clearly improper in any event, and therefore was correctly refused.8

In the present case, the reason for refusal was even more imperative. The Juvenile Court has no jurisdiction to hear and determine an accusation of larceny except when the offense is charged to have been committed by a person under eighteen years of age.9 It may waive its jurisdiction in such a case if the child is sixteen years of age or older; in which event the other court which then takes- jurisdiction will proceed in the regular manner of a criminal court.10 But if the child is under sixteen, or if the Juvenile Court retains jurisdiction of a child sixteen or over, it must proceed, not to a determination of guilt or innocence, but to “an adjudication upon the status” of the child.11 Its procedure in making that adjudication is non-criminal12 in character. Consequently, such an adjudication of the Juvenile Court concerning a child — whether he may be voluntarily

delinquent o-r merely the unfortunate victim of others13- — is in no sense the counterpart of a conviction in a criminal court; and none of the implications of conviction should result therefrom.14 With these and other considerations in mind, Congress expressly specified that “No adjudication upon the status of any child in the jurisdiction of the court shall operate to impose any of the civil disabilities ordinarily imposed by conviction, nor shall any child be deemed a criminal by reason of such adjudication, nor shall such adjudication be deemed a conviction of a crime, and, further, that “The disposition of a child or any evidence given in the court shall not be admissible as evidence against the child in any case or proceeding in any other court, *.”15 Similar statutes have been enacted in many of the states.16 Their enactment is founded upon strong social policy, and their aim is amnesty and oblivion for the transgressions of youthful offenders.17 The fundamental philosophy of the juvenile court laws is that a delinquent child is to be considered and treated not as a criminal but as a person requiring care, education and protection.18 He is not thought of as “a bad man who should be punished, but as an erring or sick child who needs help.”19 Thus, the primary function of juvenile courts, properly considered, is not conviction or punishment for crime, but crime prevention and delinquency rehabilitation.20 It would be a serious breach of public faith, therefore, to permit

these informal and presumably beneficent procedures21 to become the basis for criminal records, which could be used to harass a person throughout his life.22 There is no more reason for permitting their use for such a purpose, than there would be to pry into school records or to compile family and community recollections concerning youthful indiscretions of persons who were fortunate enough to avoid the juvenile court.23 As the language of the statute expressly forbids the interpretation24 that the disposition of a' child in a juvenile court proceeding constitutes conviction of a crime,25 and as nothing short of conviction of crime is sufficient to warrant the inquiry which appellant was forbidden to make, his contention is, completely devoid of merit.

It is next contended that the court erred in excluding from evidence the statement of a witness, called on behalf of appellant, to the effect that the witness had had sexual intercourse with the mother of the child on many occasions prior to July, 1937. The statement was clearly irrelevant. In a proceeding of this nature, the sole issue is the paternity of the illegitimate child, and the chastity of the mother is immaterial.26 “Lewd conduct of the complainant is no defense, unless it tends to show that another than defendant is, or may be, the father of the child.”27 Hence, evidence that the mother had intercourse with another man at a period of time which, in the course of nature, could not result in the conception complained of, is not relevant to the inquiry and is, therefore, inadmissible.28 In the present case the child was born on September 16, 1938. The excluded testimony related to acts committed more than fourteen months before. Obviously, the child could not have been begotten by such intercourse and, therefore, the court properly excluded the evidence.

On this appeal, appellant contends that evidence of sexual intercourse with another man prior to the period of conception was admissible for the purpose of impeaching the testimony of the mother. It is not necessary to decide this question,29

because it was not. offered for that purpose at the trial. If the appellant wished to urge its admissibility for impeachment purposes the trial court should have been given an opportunity to pass on that question. This opportunity not having been offered, and the evidence having been excluded solely on the ground of immateriality, the issue should not be permitted to be raised for the first time on appeal.

The court properly refused to permit a witness to state “whether the child resembled someone he knew other than the defendant.” Whether the child may have resembled someone the witness knew was immaterial, unless that person was one with whom the child’s mother may have had illicit relations at approximately the time of conception. It was incumbent upon appellant, therefore, to limit his interrogatory accordingly.30 This he did not do. Moreover, the question was inadmissible for another reason. In Fillipone v. United States,31 w.e held that even when a child is exhibited to the jury for the purpose of establishing resemblance to the putative father, the fact of resemblance can have no evidentiary value unless there appear in the child physical characteristics peculiar to the father and unless the resemblance is so striking as to leave no reasonable doubt as to its existence. There is even more reason for imposing such a limitation upon the opinion of a witness concerning resemblance of the child to a third person who, is not before the court. Consequently, even assuming the admissibility of the evidence,32 if a proper question had been asked or if a proffer of proof had been made,33 its exclusion in the present case was not error.34

Error is next predicated upon the refusal of the court to grant appellant’s prayers for instructions to the jury. It is contended that by not considering each prayer individually and ruling thereon, the court denied appellant an opportunity to except to the rulings, and precluded him from using the prayers in his argument to the jury. On this point, the record shows that when the prayers were offered, “the court informed the counsel for the defendant, that she would include everything in her instruction, and at the conclusion if the counsel was not satisfied, his prayers would be considered. At the conclusion of the instruction, the counsel for the defendant said he was satisfied with the instruction, The charge of the court does not appear in the record. Moreover, the prayers requested have not been included therein. Under the circumstances, and par ticularly in view of appellant’s expression of satisfaction with the charge as given,35 the contention is wholly without merit. It will be presumed that the prayers requested were embodied in the charge as given.36 It is axiomatic that it is not error to refuse requested instructions, even though they may be correct statements of the law,

if the subject matter has been properly covered by the charge given.37

It is also contended that the court erred in refusing to direct a verdict in appellant’s favor at the close of the government’s case. But we need not decide the question for, by introducing evidence in his own behalf, after the refusal of the motion, appellant waived his exception to the ruling.38

We have considered carefully all appellant’s assignments and find that he suffered from no prejudicial error in respect of any of them.

Affirmed.

STEPHENS, Associate Justice.

I concur in the result reached in the instant case.

I concur in the ruling that the juvenile court correctly forbade an answer to the question whether the prosecuting witness “had been arrested and tried for larceny in the Juvenile Court on or about July, 1939.” Even if adjudication of misconduct in the juvenile court constituted conviction of a crime — which it does not — the question was improper because the inquiry was concerning arrest and trial only. As correctly pointed out in the majority opinion such a question is not warranted.

But I dissent from the view expressed by the majority that that part of the Juvenile Court Act which provides that “The disposition of a child or any evidence given in the court shall not be admissible as evidence against the child in any case or proceeding in any other court ...” forbids the juvenile court itself to consider previous misconduct, shown by its own records, of a witness in a present proceeding, where that misconduct is of such character as will bear upon the credibility of that witness. For the juvenile court so to consider previous misconduct does not in my view impose upon a witness any of the civil disabilities ordinarily imposed by conviction, or treat a witness as a criminal, or constitute admission of evidence against a witness, contrary to the provisions of the Juvenile Court Act. I cannot conclude that it was the intention of Congress, when it laid down the wholesome protections of the Juvenile Court Act against treating children as criminals, to blind the eyes of the juvenile judge or of a jury in the juvenile court to considerations vitally bearing upon the credibility of testimony. And I think that the view taken by the majority in this respect will inevitably result in shocking miscarriages of justice in respect of both juveniles and adults. For example, an adult may be under present trial in the juvenile court upon a charge of contributing to the delinquency of a child. That child may be the only witness, and upon its uncorroborated testimony will therefore depend conviction or acquittal. The juvenile judge may know from the court’s own records concerning past misconduct of this child that its word is utterly undependable. Yet, under the view of the majority, it must not consider that fact nor permit a jury to do so. Again, juvenile B may be on trial today in the juvenile court on a charge of misconduct preferred by juvenile A. Even though the judge knows from previous experience in the court with juvenile A that the latter’s word is worthless, nevertheless, the judge may not consider that fact in the proceeding against juvenile B or permit a jury to do so.

Moreover, the expression of the majority on this subject is unnecessary to the decision of the case. As said above, the question asked of the witness related to arrest and trial rather than to conviction and was, therefore, improper in any event.' There was no ruling in the juvenile court on the precise question whether that court can in a present proceeding consider as bearing upon the credibility of a witness past misconduct of that witness as shown by the court’s own records. With due deference to my colleagues, I protest with all possible vigor against a gratuitous ruling on a subject of such grave consequence to juvenile court proceedings.