Compton v. Com.

• Decision Date: 14 April 1922
• Citation: Compton v. Com., 194 Ky. 429, 240 S.W. 36 (Ky. Ct. App. 1922)
• Parties: COMPTON v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

240 S.W. 36

194 Ky. 429

COMPTON v. COMMONWEALTH.

Court of Appeals of Kentucky.

April 14, 1922

Appeal from Circuit Court, Pike County.

Paul Compton and Leander Sword were convicted of shooting at another without wounding, and Compton appeals. Reversed, with directions.

Roscoe Vanover and L. J. May, both of Pikeville, for appellant.

Chas I. Dawson, Atty. Gen., and Thos. B. McGregor, Asst. Atty Gen., for the Commonwealth.

TURNER C.

Prior to the September, 1921, term of the Pike circuit court appellant and Leander Sword were arrested under a warrant charging them with the crime of shooting at another without wounding.

Upon their joint hearing before the county court they were each held to appear before the Pike circuit court at the September, 1921, term, and it was recommended in the order of the county court that they be prosecuted therein for the crime, it appearing they were each under 17 years of age.

At the September, 1921, term of the Pike circuit court they were jointly indicted, and upon their joint trial were each found guilty by the jury and their punishment fixed at confinement in the state penitentiary for one year; but the court in its judgment recited that they were juveniles under our statute and ordered them taken to the reform school.

Appellant filed his motion and grounds for a new trial, which were overruled, and he has appealed.

The only questions necessary to determine are: First, Did the circuit court have jurisdiction to try the defendant? and, second, Did the county court have jurisdiction to pass upon the question whether the defendant should be treated as a juvenile or whether he should be prosecuted as an adult criminal under the provisions of the juvenile act, until the notice to the parents, guardian or person having charge of him had been given as prescribed by the statute.

Section 331e of Carroll's 1922 Kentucky Statutes consists of 23 subsections, and is an act of March 19, 1908. The act is a comprehensive one dealing wholly with delinquent, dependent and neglected children of this commonwealth. It defines what constitutes a dependent, neglected or delinquent child; it establishes a juvenile court in each county of the state and prescribes its jurisdiction; it authorizes the appointment of probation officers in the several counties; it prescribes the proceedings against persons in charge of neglected or dependent children; it prescribes the procedure where a juvenile is brought before a court, and contains many other provisions looking to the care and protection of such infants.

In subsection 1 of that act it is provided that a delinquent child shall include any male child 17 years of age or under who has violated any law of this state.

In subsection 2 of the act it is expressly provided that the county courts of the several counties shall have exclusive jurisdiction of all cases coming within the terms and provisions of the act, and, accordingly, this court has held that the county court has the exclusive jurisdiction, and that the act applies to every delinquent male child under 17 years of age who violates any law of this state. Commonwealth v. Franks, 164 Ky. 239, 175 S.W. 349.

It has likewise been held that the circuit court has no jurisdiction to initiate, try or review on appeal a proceeding against a delinquent child unless proceedings have been first had in the county court. Waters v. Commonwealth, 171 Ky. 457, 188 S.W. 490.

Subsection 4 of the act authorizes any reputable resident of the county having knowledge of a child who appears to be neglected, dependent or delinquent, to file with the county clerk a petition in writing setting forth the facts, verified by affidavit, and provides that upon the filing of such petition the parent, guardian or near relative of the child shall be notified of the proceedings; and under the provisions of that section it has been held that the filing of the petition is necessary to give jurisdiction to the county court of the proceedings. Cullins v. Williams, 156 Ky. 57, 160 S.W. 733. And it has likewise been held under that section that upon the arrest of a delinquent child charged with crime the county court has no jurisdiction to refer the case to the grand jury without first giving notice to the parent, guardian or near relative. Commonwealth v. Davis, 169 Ky. 681, 185 S.W. 73.

It is further provided in subsection 5 of the act as follows:

"When any child within the provisions of this act is arrested with or without a warrant it shall, instead of being taken before a justice of the peace or police magistrate, be taken directly before the county court, or if it shall be taken before a justice of the peace or police magistrate upon warrant sworn out in such court, or for any other reason, it shall be the duty of such justice of the peace or police magistrate to transfer the case to such county court, and it shall be the duty of the officer having the child in charge to take the child before said county court; and in any case the court may proceed to hear and dispose of such case in the same manner as if the child had been brought before the court upon petition as herein provided. In any case the court shall require notice to be given and investigation to be made as in other cases under this act, and may adjourn the hearing from time to time for that purpose.

The court may in its discretion in any case of a delinquent child brought before it as herein provided, permit such child to be proceeded against in accordance with the laws that may be in force in this...