Cummings v. State, 1168S187

• Citation: 251 N.E.2d 663,19 Ind.Dec. 68,252 Ind. 701
• Decision Date: 28 October 1969
• Docket Number: No. 1168S187,1168S187
• Parties: Shelia CUMMINGS, a/k/a Tami Cummings, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 663

251 N.E.2d 663

252 Ind. 701

Shelia CUMMINGS, a/k/a Tami Cummings, Appellant, v. STATE of Indiana, Appellee.

No. 1168S187.

Supreme Court of Indiana.

Oct. 28, 1969.

Daniel A. Roby, Kenneth M. Waterman, Fort Wayne, Ind., for appellant.

Theodore L. Sendak, Atty. Gen., John F. Davis, Curtis C. Plopper, Deputy Attys. Gen., Indianapolis, for appellee.

DeBRULER, Chief Justice.

This is an appeal from a conviction in a trial without jury in the Allen County Circuit Court for inflicting physical injury while engaged in the commission of a robbery, in violation of Acts 1941, ch. 148, § 6, the same being Burns' Ind.Stat.Ann. § 10--4101. Appellant filed a motion for new trial which was overruled and is not at issue on this appeal, and on September 17, 1968, the trial court imposed the mandatory sentence of life imprisonment in the Indiana Women's Prison.

On September 20, 1968, appellant filed a petition to transfer the case to the Allen County Juvenile Court on the ground that appellant was in fact only sixteen years old. The trial court denied the petition and appellant's request for a hearing on appellant's age on September 25, 1968.

On December 9, 1968, the trial court approved the filing of a belated motion for new trial which included affidavits from appellant that she was only sixteen years old and a birth certificate. The trial court overruled the belated motion for new trial.

Appellant's several assignments of error all rest on one argument: When it was made known to the judge that this appellant was under eighteen years of age, he was required by statute, Acts 1945, ch. 356, § 13, the same being Burns' Ind.Stat.Ann. § 9--3213, to transfer the case to the juvenile court which had sole jurisdiction of appellant.

Burns' § 9--3213, supra, states:

'If a complaint or charge of a criminal or quasi-criminal nature is made or pending against any person in any other court, and, it shall be ascertained that said person was under the age of eighteen years at the time the offense is alleged to have been committed, it shall be the duty of such court to transfer such case immediately, together with all the papers, documents and testimony connected therewith, to the juvenile court, excepting however, cases against children over sixteen years of age charged with violation of any traffic ordinances of a subdivision of the state, and further excepting cases against children charged with a violation of law, which if, committed by an adult, would be a capital offense. The court making such transfer shall order the child to be taken forthwith to the place of detention designated by the juvenile court or to the court itself, or release such child in the custody of some suitable person to appear before the juvenile court at a time designated. The juvenile court shall thereupon proceed to hear and dispose of such case in the same manner as if it had been instituted in that court in the first instance.'

It is clear from this statute that the trial court had a duty to transfer this case to the juvenile court if appellant was under eighteen years old and was not charged with a traffic or a capital offense. Since the appellant was not charged with a traffic offense, it remained for the trial court to answer two questions: (1) Was appellant in fact under eighteen years old?; (2) Was this a capital offense?

(1) In the petition to transfer filed on September 20, 1968, appellant's counsel alleged that evidence had come to his attention since the sentencing which clearly indicated that appellant was then only sixteen years old. On September 25, 1968, at a hearing on appellant's indigency, Mrs. Helen Moore testified that appellant was her daughter, Sheila Moore, born on February 4, 1952, in Myers Memorial Hospital at Ypsilanti, Michigan. In the belated motion for new trial, counsel included appellant's affidavit to the effect that she was Sheila Moore, aged sixteen, and a birth certificate to that effect. The only claim that appellant was over eighteen years old was made by appellant herself to the probation officer and during the trial when she represented herself to be twenty years old. The appellee never controverted any of the allegations that appellant was sixteen years old even though if true they would have deprived the circuit court of jurisdiction of this case. Since the trial court never conducted a hearing into appellant's age and the appellee never controverted the testimony of Mrs. Moore, appellant's affidavit, or the birth certificate, we take the claim that appellant was sixteen years old as true.

(2) Black's Law Dictionary (4th Ed.) defines a capital crime as 'One in or for which the death penalty may, but need not necessarily, be inflicted.' The overwhelming weight of authority in the state courts is that death must be a possible punishment in order for a crime to be called a capital offense. State v. Dabon (1927), 162 La. 1075, 111 So. 461; Ex parte Herndon (1920), 18 Okl.Cr. 68, 192 P. 820, 19 A.L.R. 804; State v. Johnston (1914), 83 Wash. 1, 144 P. 944; Ex parte Walker (1889), 28 Tax.App. 246, 13 S.W. 861; Ex parte Dusenberry (1888), 97 Mo. 504, 11 S.W. 217; Ex parte McCrary (1853), 22 Ala. 65. The federal courts have consistently held that murder in the second degree is not a capital offense because it is not punishable by death. Askins v. United States, 102 U.S.App.D.C. 198, 251 F.2d 909 (1958); Rakes v. United States (1909), 212 U.S. 55, 29 S.Ct. 244, 53 L.Ed. 401. We accept that definition in Indiana. The maximum sentence for inflicting injury while committing a robbery is life imprisonment, therefore, appellant was not charged with a capital offense.

Since the appellant was under eighteen years of age and was not charged with a traffic or a capital offense, she was not within the jurisdiction of the circuit court and Burns' § 9--3213, supra, required the circuit court to transfer the case to the juvenile court. Hicks v. State (1967), Ind., 230 N.E.2d 757.

The appellee argues that the juvenile court has no jurisdiction in this case and, therefore, to require the circuit court to transfer it would create a jurisdictional gap.

The jurisdiction of the juvenile court is conferred by statute:

'The juvenile courts created by this act shall have original exclusive jurisdiction, except when specifically waived by the court, in such cases as provided by law, in all cases of delinquent, dependent, and neglected children as defined by law, of divorced parents. And shall have exclusive original jurisdiction to determine the paternity of any child born out of wedlock, and to provide for the support and disposition of such child and in all other cases that may hereafter be conferred by law.' Acts 1945, ch. 347, § 3, as last amended by Acts 1969, ch. 223, § 1, the same being Burns' § 9--3103.

'The words 'delinquent child' shall include any boy under the full age of eighteen years and any girl under the full age of eighteen years who:

'(1) Commits an act which, if committed by an adult, would be a crime not punishable by death or life imprisonment. * * *' (Emphasis added.) Acts 1945, ch. 356, § 4, as last amended by Acts 1961, ch. 274, § 1, the same being Burns' § 9--3204(1).

Appellee first alleges that appellant is not a delinquent child within Burns' § 9--3204(1), supra, because she was charged with a crime which if committed by an adult would be a crime punishable by life imprisonment which is one of the exceptions in the statute. Appellee then argues that since the juvenile court has no jurisdiction in this case, it would create a jurisdictional gap with no court having jurisdiction to interpret Burns' § 9--3213 to require the circuit court to transfer this case out of its own jurisdiction. In order to avoid this...