Ex parte Januszewski

• Decision Date: 04 December 1911
• Docket Number: 1,594.
• Citation: 196 F. 123
• Parties: Ex parte JANUSZEWSKI.
• Court: U.S. District Court — Southern District of Ohio

196 F. 123

Ex parte JANUSZEWSKI.

No. 1,594.

United States Circuit Court, S.D. Ohio, Eastern Division.

December 4, 1911

Timothy S. Hogan, Atty. Gen., and Clarence D. Laylin and Charles Follett, Asst. Attys, Gen., of Columbus, Ohio, for respondent Gerlach.

Louis Barnes, Howard H. Knapp, and Montgomery Barnes, all of Cleveland, Ohio, for petitioner.

SATER District Judge.

The petitioner complains that he is unlawfully imprisoned in the Boys' Industrial School at Lancaster, Ohio, and asks to be discharged on a writ of habeas corpus. It appeared on the hearing that this proceeding was instituted without the knowledge and against the protest of his father and immediate relatives, who desire him to remain where he is.

On March 27, 1911, an affidavit was filed in the juvenile court of Cuyahoga county, as authorized by the Ohio Juvenile Act (99 O.L. 192, sections 1639-1683, Ohio General Code) charging that the petitioner, a boy about 14 years of age, is a delinquent person in that he is incorrigible in this, to wit, that two days prior he unlawfully, maliciously, and purposely shot Albert Molzan, with intent to kill. Molzan, it is stated, subsequently died, but the date of his death and the circumstances surrounding it do not appear. On a hearing duly had, the allegations were found to be true, the petitioner was adjudged a delinquent, and was ordered committed to the Boys' Industrial School, to which he was removed and in which as a delinquent he is still detained. He alleges that he was charged with and committed for the crime of shooting with intent to kill, and that he was denied the right of prosecuting error or appeal from the judgment of the court, because section 1668 withholds such privilege from persons of his class. Other specific reasons assigned for his release are that section 1648, under authority of which the affidavit against him was filed, is in derogation of article 1, Sec 10, of the Constitution of Ohio, in that he was held to answer for an infamous crime without presentment by a grand jury; that section 1650, by authority of which he was tried by the judge of the juvenile court, is in violation of section 1, art. 8, of the Constitution of Ohio, in that it denies him the right of trial by jury; and that by virtue of the foregoing facts not only was the juvenile court without jurisdiction to proceed in the premises in any manner whatsoever, but that, in direct contravention of the rights granted him by section 1 of the fourteenth amendment to the Constitution of the United States, he has been deprived of his liberty without due process of law and has been denied the equal protection of the laws of Ohio.

The act, which is entitled 'An act to regulate the treatment and control of dependent, neglected and delinquent children,' gives juvenile courts jurisdiction over delinquent, neglected, and dependent minors under the age of 17 years, not inmates of a state institution or any institution incorporated under the laws of the state for the care and correction of such children (section 1642), which jurisdiction, after the custody of the court attaches continues for all necessary purposes of discipline and protection until the child, as a ward of the court, attains the age of 21 years (section 1643). The words 'delinquent child,' as defined by section 1644, include, inter alia:

'Any child under seventeen years of age who violates a law of this state or a city or village ordinance, or who is incorrigible; or who knowingly associates with thieves, vicious or immoral persons; or who is growing up in idleness or crime; or who knowingly visits or enters a house of ill repute; or who knowingly patronizes or visits a policy shop or place where any gambling device is, or shall be, operated; or who patronizes or visits a saloon or dramshop where intoxicating liquors are sold; or who patronizes or visits a public pool or billiard room or bucket shop; or who wanders about the streets in the nighttime; or who wanders about railroad yards or tracks, or jumps or catches onto a moving train, traction or street car, or enters a car or engine without lawful authority; or who uses vile, obscene, vulgar, profane or indecent language; or who is guilty of immoral conduct; or who uses cigarettes; or who visits or frequents any theater, gallery or penny arcade where lewd, vulgar or indecent pictures are exhibited or displayed. A child committing any of the acts herein mentioned shall be deemed a juvenile delinquent person, and be proceeded against in the manner hereinafter provided.'

Proceedings may be instituted by the filing of an affidavit with the court or its clerk by any person having knowledge of a child's delinquency (section 1647), on the filing of which a citation is issued requiring it, and the person having its custody or control, or with whom it may be, to appear at a stated time and place; or the judge may in the first instance issue a warrant for its arrest and subpoena witnesses to testify at the hearing (section 1648). On the day named in the citation, or upon the return of the warrant, the judge is required to proceed in a summary manner to hear and dispose of the case (section 1650), but the hearing may be continued from time to time. The judge may commit the child to the care or custody of a probation officer, may allow it to remain at its own home subject to such officer's visitation and the court's further orders, may place it or cause it to be temporarily boarded in a suitable family subject to like supervision and order, may commit it to a training or industrial school or to any institution within the county that may care for delinquent children, or to the Boys' Industrial School, or, where it appears upon the hearing that the delinquent is 16 years of age and has committed a felony, to the Ohio State Reformatory, or to any state institution established for the care of delinquent boys, or, if a girl over the age of 9 years, to the Girls' Industrial Home, or to any state institution established for the care of delinquent girls. The child, when committed to an institution, becomes subject to the control of its trustees, who may parole it on prescribed conditions, and on their and the superintendent's recommendation may discharge it from custody, or the judge may commit to the care and custody of a duly accredited association that will receive it, embracing in its objects the care of neglected or dependent children. Section 1652.

Other provisions of the act define the term 'dependent children,' and provide for their care and protection and for the punishment of those who contribute to the delinquency of minors, or who, being charged with the care, maintenance, and education of such minors, fail, neglect, or refuse to perform such duty; but the consideration of such provisions is not necessary to a disposition of this case.

Whether, as is contended, the Ohio Juvenile Act is violative or not of the Constitution of Ohio, is not necessarily a federal question, and upon that point an opinion need not be expressed. The repugnancy of a statute to the Constitution of a state by whose Legislature it was enacted cannot authorize a writ of habeas corpus from a court of the United States, unless the petitioner is in custody by virtue of such statute, and unless also the statute is in conflict with the Constitution of the United States. Andrews v. Swartz, 156 U.S. 272, 15 Sup.Ct. 389, 39 L.Ed. 422; Re Burrus, 136 U.S. 586, 591, 10 Sup.Ct. 850, 34 L.Ed. 500; section 753, R.S. (U.S. Comp. St. 1901, p. 592).

Under the statute, which applies to all delinquents of the prescribed age, incorrigibility is but one of many forms of delinquency. The affidavit under which the petitioner was arrested charges that he is a delinquent person because he is incorrigible, in that he shot another with intent to kill. He was heard on that charge. He was not charged with, or tried for, or convicted of, or imprisoned for, the crime of shooting with intent to kill. The evidence offered in the juvenile court must have shown that he shot as charged in the affidavit, but as he was charged with and tried for a species of delinquency only, such evidence could not, by any known rule, be used in such hearing to convict him of the crime of shooting with intent to kill. The only office which it could perform was to establish the particular kind of delinquency alleged. His commitment was not designed as and is not a punishment for crime, but to place him under suitable guardianship for proper care and discipline until he is reformed, or arrives at the age of majority. Nor is the Industrial School a prison (Prescott v. State, 19 Ohio St. 184, 2 Am.Rep. 388), or the purpose of the Juvenile Act punishment (State v. Marmouget, 111 La. 225, 35 So. 529; State v. Howard, 126 La. 354, 52 So. 539; Reynolds v. Howe, 51 Conn. 472; Farnham v. Pierce, 141 Mass. 203, 6 N.E. 830, 55 Am.Rep. 452; Petition of Ferrier, 103 Ill. 367, 43 Am.Rep. 10; Church on Habeas Corpus, Sec. 444c. The object of the Industrial School is the reformation of those committed to its charge. Section 2083. Its inmates receive such education and are instructed in such branches of industry, agricultural or mechanical, or otherwise, as the board of trustees may determine; the reformation of such inmates and their preparation for usefulness being always kept in view. Section 2094. The latitude given to the court by the Juvenile Act in making disposition of delinquent children and the character of the places to which they may be committed do not consist with the claim that the law contemplates imprisonment for crime; some of such places being those to which the state's children who are merely neglected or dependent are committed. Section 1653.

The purpose of the statute is to save minors under the...