Com. v. Davis

• Decision Date: 26 April 1916
• Citation: 169 Ky. 681,185 S.W. 73
• Parties: COMMONWEALTH v. DAVIS.
• Court: Kentucky Court of Appeals

185 S.W. 73

169 Ky. 681

COMMONWEALTH v. DAVIS.

Court of Appeals of Kentucky.

April 26, 1916

Appeal from Circuit Court, Shelby County.

Robert Davis was discharged on the charge of forgery, the indictment being dismissed, and the Commonwealth appeals. Judgment affirmed.

M. M Logan, Atty. Gen., Charles H. Sanford, of New Castle, D. O Myatt, Asst. Atty. Gen., and E. H. Davis, of Shelbyville, for the Commonwealth.

T. B Roberts, of Shelbyville, for appellee.

MILLER C.J.

On August 9, 1915, a warrant was issued by the judge of the Shelby county court, for the arrest of appellee Robert Davis, who was under 16 years of age, upon the charge of forgery. Davis was duly arrested and presented before the Shelby county court, sitting as a juvenile court. After investigating the case, that court entered the following judgment:

"The defendant, Robert Davis, being before the court and having pleaded guilty to forging the name of H. A. Campbell to a check, and having violated his probation in being before the court frequently without improvement, it is the judgment of this court that he be held to answer said charge to the grand jury of Shelby county and proceeded against as other criminals."

The case was then referred to the grand jury, which returned an indictment, on October 7, 1915, charging Davis with the crime of forgery. A demurrer to the indictment was overruled. Upon the trial under the indictment in the circuit court, the parties agreed that Davis was under 16 years of age; that no petition had been filed with the county court clerk, either by the probation officer or any one else, as required by subsection 2, of section 331d of the Kentucky Statutes, and that no summons was issued, as provided thereunder, against the parents or guardian or persons having charge of said infant, nor was any notice of any kind given to said parents, guardian, or persons having charge of said infant of any proceeding against said infant; that the father of the defendant was a resident of Woodford county, Ky.; that his mother was dead, and that he was living with his grandmother, Martha Bell, in Shelbyville, Ky. who had the control and custody of the defendant, and that she was not present in court, nor was the father present in court; that neither the father nor the grandmother, nor any person having charge of the defendant, had any notice of the proceedings against the defendant in the juvenile court, or in the circuit court; and that no person was appointed to act for the defendant in the juvenile court. The circuit court dismissed the indictment and discharged the defendant, upon the ground that that court had no jurisdiction of the infant defendant, because the county court had no jurisdiction, in the absence of the notice required by the statute, to transfer the defendant to the circuit court for indictment and trial.

The question, therefore, involved upon this appeal is, did the county court have jurisdiction to refer this case to the grand jury without first having issued and served the notice upon the infant's parent, guardian, or next friend, as required by the statute? If the county court was without jurisdiction to make the transfer, the case was still in the county court, and the circuit court was without jurisdiction to indict and try the defendant upon the charge of forgery.

The agreed statement of facts referred to section 331d of the Kentucky Statutes as controlling the case. It will appear, however, from investigation, that section 331d, which was chapter 60 of the Acts of 1908, approved March 19, 1908, entitled "An act fixing and defining the powers of the several county courts within this commonwealth with reference to persons responsible for, or directly promoting or contributing to the conditions that render a child dependent, neglected or delinquent, and providing how such powers may be exercised," has been repealed by the act of 1910 (Acts 1910, p. 226), which is now section 331g of the Kentucky Statutes, Carroll's 1915 Edition. This case is controlled, however, by chapter 67 of the Acts of 1908, entitled "An act relating to children who are now or may hereafter become dependent, neglected or delinquent, to define these terms and fixing and defining the powers of the several county courts within this commonwealth with reference to the care, treatment and control of such children, and to provide for the means whereby such powers may be exercised," which is now section 331e of the Kentucky Statutes. By the provisions of subsection 4 of the last-named statute, any reputable person, being a resident of the county, may file with the clerk of the county court a petition, in writing, setting forth the facts, verified by affidavit, relating to any neglected, dependent, or delinquent child. It further provides, as follows:

"The petition shall set forth the name and residence of the parent or parents, if known, or if the name and residence is unknown to the petitioner: (a) The name and residence of the person having the custody, control and supervision of such child; or (b) if the child is illegitimate, the name of the mother of such illegitimate child; or if it allege that both parents, or that such mother is dead, then the name of the guardian if any, of such child; (d) if no guardian of such child is known to the petitioner, then of some near relative, or that such is unknown to the petitioner. All persons named in said petition shall be notified of such proceedings as hereinafter provided.

Upon filing of the petition a summons shall issue requiring the parent or parents, guardian or the person having custody, control or supervision of the child, or with whom the child may be, to appear with the child at a place and time stated in the summons, which time shall not be less than twenty-four hours after service. The parents of the child, if living, and their residence, if known, to the petitioner, or its legal guardian, if one there be, and his residence, if known to the petitioner, or if there be neither parent nor guardian, or if his or her residence be not known, then some near relative, if his residence be known to the petitioner, shall be notified of the proceedings, and in any case the judge may appoint some suitable person to act in behalf of the child."

Subsection 5 of section 331e, supra, further provides for the trial of the child, as follows:

"When any child within the provisions of this act is arrested with or without a warrant it

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