Brewer v. Com.

• Court: Supreme Court of Kentucky
• Writing for the Court: SIMS
• Citation: Brewer v. Com., 283 S.W.2d 702 (Ky. 1955)
• Decision Date: 28 October 1955
• Parties: Jimmy Dale BREWER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Page 702

283 S.W.2d 702

Jimmy Dale BREWER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Oct. 28, 1955.

F. T. Allen, Leebern Allen, Campton, for appellant.

J. E. Buckman, Jr., Atty. Gen., Earl V. Powell, Asst. Atty. Gen., for appellee.

SIMS, Justice.

There are two questions of law presented on this appeal: (a) did the juvenile defendant have the right of appeal to the circuit court; (b) if the circuit court erroneously refused to entertain his appeal, can the juvenile appeal to this court to protect his constitutional rights? At the outset it may be well to state the Commonwealth's motion to dismiss the appeal was passed to merits.

Appellant, Jimmy Dale Brewer, a 13 year old boy, was convicted in the Wolfe County Juvenile Court on a charge of housebreaking and was committed to the Youth Authority until he was 21 years of age. KRS 208.200(c). An appeal is provided from the juvenile court to the circuit court by KRS 208.380 which reads: 'An appeal may be taken from the juvenile session of the county court as provided in section 362 of the Criminal Code of Practice.' Appellant attempted to comply with Sec. 362 of the Criminal Code of Practice in prosecuting his appeal to the circuit court, but the circuit judge dismissed the appeal 'upon the ground that the circuit court did not have jurisdiction because of the age of defendant.' However, the circuit court granted accused an appeal to this court but refused to release him on bond pending the appeal.

The circuit court was in error in ruling it did not have jurisdiction on the appeal 'because of the age of defendant.' In providing for an appeal from the juvenile to the circuit court KRS 208.380 does not mention the age of the defendant or the crime with which he is charged. The learned trial judge evidently confused KRS 208.380 with KRS 208.170, which latter section of the statute provides where a child 16 years of age has committed a felony, or is 16, or older, or younger, and is charged with murder or rape, and the juvenile court is of the opinion that the best interests of the child and of the public require that the child be dealt with under the regular law governing crimes, the juvenile court in its discretion may transfer the case to the circuit court for grand jury action. But KRS 208.170 does not deal with appeals from the juvenile court to the circuit court.

The appeal in the instant case should have been dismissed by the circuit court for the failure of appellant to file 'an affidavit of merits' in compliance with Sec. 362 of the Criminal Code of Practice which says the appeal from the juvenile court to the circuit court 'shall be prosecuted in the manner provided by this chapter, except that the transcript when filed in the office of the Clerk of the Circuit Court shall be accompanied by a motion for an appeal, supported by an affidavit of merits, signed by the appellant, or * * * by his parent or guardian * * * which affidavit shall state the nature of the controversy involved; * * *.' The filing of this affidavit is a condition precedent to the appeal and when accused failed to comply with the provisions of Sec. 362 of the Criminal Code of Practice he lost his right of...