Ex parte Naccarat

• Decision Date: 29 July 1931
• Citation: 41 S.W.2d 176,328 Mo. 722
• Parties: Ex Parte Grace Naccarat, Petitioner
• Court: Missouri Supreme Court

41 S.W.2d 176

328 Mo. 722

Ex Parte Grace Naccarat, Petitioner

Supreme Court of Missouri

July 29, 1931

Petitioner remanded.

Albert W. Johnson for petitioner.

Gilbert Weiss for respondent.

OPINION

Henwood J.

This is a habeas corpus proceeding, by which the petitioner seeks to be released from the Convent of the House of Good Shepherd of the City of St. Louis, to which she was committed by the juvenile court of the city of St. Louis as a delinquent child of the age of sixteen years.

Only issues of law are presented by the respondent's return to the writ and the petitioner's answer to the return.

Attached to the return are duly certified copies of the information warrant, judgment and commitment on file and of record in the juvenile court. In the information, filed by the probation officer on March 12, 1931, it was charged that Grace Naccarat, a female of the age of sixteen years, was a delinquent child within the meaning of the statutes in such cases made and provided, in that she was incorrigible, and that she absented herself from home, and that she knowingly associated with vicious and immoral persons, particularly one Mike Vitale. The warrant for her arrest was issued on March 12, 1931, and she was arrested and brought before the juvenile court on March 18, 1931. A hearing before the juvenile court on March 18, 1931, resulted in the judgment by which she was committed to the Convent of the House of Good Shepherd. The commitment was issued on March 18, 1931, and she was delivered into the custody of Sister Mary of St Augustine, Mother Superior of the Convent of the House of Good Shepherd, on March 21, 1931.

Omitting the caption, the judgment of the juvenile court reads as follows:

"Now at this day this cause coming on for hearing comes the defendant in her own proper person, and this cause is submitted to the court upon the petition, evidence and proof adduced, and the court having heard and duly considered the same and being fully advised in the premises doth find the defendant to be a delinquent child within the meaning of that term as defined by the statute relating to delinquent children.

"Wherefore, it is considered and adjudged and decreed by the court that the defendant be and she is hereby committed to the Convent of Good Shepherd, there to remain until the further order of this court or until discharged by due process of law, and that the defendant pay the costs of this prosecution, for which let execution issue."

I. Counsel for the petitioner first contends that, in a proceeding against a child on a charge of delinquency, notice to the person or persons having custody or control of such child or with whom such child may be is jurisdictional, and that, as the record fails to show such jurisdictional fact, the judgment of the juvenile court is void.

Manifestly, counsel is confusing the provisions of the juvenile court law relating to children alleged to be neglected with the provisions of the law relating to children alleged to be delinquent, in counties having 50,000 inhabitants or over. For the purposes of the law, the words "neglected child" and "delinquent child" are defined in Section 14136, Revised Statutes 1929, and, while the law contains similar provisions for the commitment of neglected and delinquent children, the provisions of the law as to other proceedings of the juvenile court are somewhat different in the two classes of cases. Section 14138 provides that any reputable person residing in the county may file a petition concerning a child who appears to be a neglected child; and Section 14139 provides that, upon the filing of the petition, unless the parties voluntarily appear, "summons shall issue . . . requiring the child and the person having custody or control of the child or with whom the child may be, to appear with the child at the place and at the time set in the summons, . . ." and that "the parents of the child, if living, and their residence known, or its legal guardian, or if his or her residence is unknown, then some relative, if there be one, and his or her residence known, shall be notified of the proceedings, and in any case the court may appoint some suitable person or association to act in behalf of the child. . . ." and that "if it shall appear to the satisfaction of the court that there is no person in charge or care of the child, the court may order the sheriff to take control of the child and bring him into court." But, Section 14142 provides that, in all delinquency cases, an information shall be filed by the city attorney, prosecuting attorney, circuit attorney or probation officer, in which the alleged act or acts of delinquency of the child shall be stated in a general way; and this section further provides that "in place of a warrant for the arrest of any child a summons may issue as provided in section 14139."

Thus it is seen that, while the juvenile court may, upon the filing of the...