1. JUVENILE DELINQUENCY — Six-Member Jury — Sufficient — Child's Request — 12-Member Jury — Correctly Denied. Where child was being tried for commission of acts that would, if committed by an adult, constitute the crime of felony menacing, the Children's Code authorizes a jury of not more than six, and a six-member jury satisfies due process requirements; therefore, the Juvenile Court was correct in denying child's request for a 12-member jury.
Opinion by JUDGE RULAND.
Child-appellant, T.A.W., was alleged to be a delinquent child by reason of his commission of acts that would, if committed by an adult, constitute the crime of felony menacing as defined in § 18-3-206, C.R.S. 1973. Pursuant to § 19-1-106(4), C.R.S. 1973, of the Children's Code, a trial by jury was requested. While § 19-1-106(4), C.R.S. 1973, authorizes a jury of not more than six, T.A.W. requested a jury of 12 with the right to exercise 10 peremptory challenges pursuant to Crim. P. 24(d). The juvenile court denied the request relying upon the Code as well as C.R.J.P. 49. A six-member jury returned a verdict finding that T.A.W. was a delinquent child as alleged. The principal issue on this appeal is whether due process of law mandates that T.A.W. be tried by a 12-member jury in connection with an adjudicatory hearing under the Children's Code even though the Code limits the jury to six members. We hold that a six-member jury satisfies due process requirements.
Relying primarily upon In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) and In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), it is contended on behalf of T.A.W. that a child must be afforded the same rights in selecting a jury that he would be afforded if tried as an adult for the crime of felony menacing. In support of this contention, it is urged that since a child is exposed to commitment to the Department of Institutions if found to be delinquent, he faces limitations on his freedom similar to those imposed upon an adult who is incarcerated for such an offense. See §§ 19-3-112(1)(g) and 19-3-113(1)(a), C.R.S. 1973. Thus, it is reasoned that the efforts of counsel in selecting a jury are equally important in either type of proceeding and yet a child does not receive the benefit of pleading his case to 12 jurors as does an adult.
[1] Trial by jury in the adjudicative stage of a juvenile proceeding is not required by the due process clause of the Fourteenth Amendment. McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971). Conversely, trial by a jury of six is constitutionally permissible, even for adult offenders. Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970). Hence, even if the conduct of an adjudicatory hearing under the Children's Code were characterized as a criminal trial, the provision for a jury trial of six enacted by the General Assembly exceeds the due process requirements for juveniles and meets the standard imposed for adults. We likewise find no merit in the argument that the trial court violated due process requirements in limiting the People and T.A.W. to four peremptory challenges each in the course of selecting the jury of six members.
Judgment affirmed.
JUDGE COYTE and JUDGE PIERCE concur.