Mickens v. Commonwealth, Record No. 2436.

• Decision Date: 13 October 1941
• Docket Number: Record No. 2436.
• Citation: 178 Va. 273
• Court: Virginia Supreme Court
• Parties: JOSEPH R. MICKENS v. COMMONWEALTH OF VIRGINIA.

Page 273

178 Va. 273

JOSEPH R. MICKENS v. COMMONWEALTH OF VIRGINIA.

Record No. 2436.

Supreme Court of Virginia, Richmond.

October 13, 1941.

Present, All the Justices.

1. WARRANTS — For Whom Issued — Minors — Imperative Use Shown as Required by Code Section 1911 — Case at Bar. — In the instant case, a prosecution for rape, accused, a negro youth between fifteen and sixteen years of age, was convicted and sentenced to the electric chair. Accused after being taken into custody confessed to the commission of the crime and a warrant for his arrest was issued, by which authority he was held for action by the grand jury. Accused contended that no warrant could be legally issued for his arrest except with permission of the judge of the circuit court or the judge of the juvenile and domestic relations court under the provision of section 1911 of the Code of 1936. The statute provides, in part, that no warrant of arrest shall be issued for any child between the ages of twelve and eighteen years except when the use of such process is imperative.

Held: That the fact that the justice of the peace, at the time is issued the warrant, knew that a horrible and heinous crime had been committed, and that the confession of accused and other circumstances pointed to accused as the criminal agent, rendered the use of the process of arrest imperative.

2. INFANTS — Juvenile and Domestic Relations Court — No Power Given by Code Sections 1905-1922 to Convict Child of any Crime or Commit Him to Penal Institution. — No power is given to the juvenile courts, by sections 1905-1922 of the Code of 1936, to convict any child of any crime, whether misdemeanor or felony, or to commit any child to any penal institution. Such court may only adjudge a child a delinquent and commit him, not to a penal institution, but to the State Board of Public Welfare, which board is given power to make proper disposition of the child.

3. INFANTS — Juvenile and Domestic Relations Courts — Given Exclusive Jurisdiction over Disposition of Delinquent Children but Not Their Trial and Punishment. — The matters over which the juvenile courts are given exclusive original jurisdiction are the "disposition, custody or control of delinquent, dependent or neglected children", but not their trial and punishment for the offense which they have committed.

4. INFANTS — Liability for Crimes — Trial and Punishment Follows Regular Criminal Procedure — Modification. — The trial and punishment of minor offenders follows the regular criminal procedure, modified, in certain respects, by the statutes setting up juvenile and domestic relations courts, which have established a system whereby most juvenile offenders are first subjected to the jurisdiction of the juvenile courts for proceedings therein designed to subject such offenders to the supervision and control of the State in a manner in which the delinquent ways of the child will be corrected and he be made to lead a correct life.

5. INFANTS — Liability for Crimes — Trial of Felony Cases of Aggravated Nature — Regular Criminal Procedure and Original Jurisdiction of Circuit Courts Retained. — In the trial and punishment of minor offenders in felony cases of an aggravated nature, the regular criminal procedure and the original jurisdiction of circuit courts are retained, since the statutes establishing the juvenile and domestic relations courts clearly show that the legislature recognized that children who have committed grave offenses could not be properly dealt with according to the methods and procedure established by such legislation.

6. INFANTS — Juvenile and Domestic Relations Courts — No Power to Try Minor Charged with Aggravated Felonious Offense — Act as Courts of Investigation — Procedure. — The juvenile and domestic relations court is given no power to acquit or convict a minor over twelve years of age charged with an aggravated felonious offense. In such a case, such a case, such court acts only as a court of investigation. If the evidence for the Commonwealth presents a prima facie case, the juvenile and domestic relations court should hold the accused for action by the grand jury. If the offense charged is not well-founded, it should dismiss the case, having, in this regard, the same jurisdiction that justices of the peace formerly had and trial justices now have.

7. INFANTS — Juvenile and Domestic Relations Court — Dismissal of Case against Minor Charged with Aggravated Felonious Offense Is Not Conclusive — No Bar to Action by Grand Jury. — The judgment of the juvenile and domestic relations court dismissing the case against a minor over twelve years of age, charged with an aggravated felonious offense, is not conclusive, and the judgment of dismissal is not sufficient to bar action by the grand jury.

8. INFANTS — Juvenile and Domestic Relations Courts — Transfer of Case from Circuit Court for Separate Investigation Not Required under Code Section 1911 — Case at Bar. — In the instant case, a prosecution for rape, accused, a negro youth between fifteen and sixteen years of age, was convicted and sentenced to the electric chair. Accused conceded that no tribunal other than the circuit court of Augusta county was clothed with authority to try his case on the merits, but contended that under section 1911 of the Code of 1936, it was the duty of the circuit court of Augusta county to transfer the case to the juvenile and domestic relations court for it to make a separate investigation and to determine whether the crime charged constituted an aggravated felonious offense.

Held: That there was no merit in the contention of the accused.

9. INFANTS — Liability for Crime — Right to Appear in Person or by Attorney. — A minor charged with a criminal offense has a right to appear in person or by attorney of his own selection.

10. INFANTS — Liability for Crimes — Statute Requiring Appointment of Guardian Ad Litem Has No Relation to Criminal Prosecutions. — The provision of section 1909 of the Code of 1936 that the court shall appoint a probation officer or a discreet and competent attorney at law to act as guardian ad litem to represent the interests of a child, has no relation to criminal prosecutions.

11. INFANTS — Liability for Crimes — Trial Court Need Not Appoint Guardian Ad Litem — Case at Bar. — In the instant case, a prosecution for rape, accused, a negro youth between fifteen and sixteen years of age, was convicted and sentenced to the electric chair. Section 1918 of the Code of 1936, which deals with children who cannot be properly disciplined under the juvenile statute, provides that such child shall "be proceeded against as if he were over the age of eighteen years". Accused was represented by an attorney selected by him to appear and defend him at every stage of the proceedings, but he contended that it was the duty of the trial court, under section 1909 of the Code of 1936, to appoint a guardian ad litem to defend him.

Held: That there was no merit in the contention.

12. JURY — Waiver — Minor May Waive Jury Trial. — A minor charged with a crime has just as much right to waive a trial by jury as an adult.

13. JURY — Waiver — Provision That Court Try Case Is Mandatory. — The language of section 8 of the Constitution, that in case of waiver of a jury the court shall try the case, is mandatory.

14. JURY — Waiver — Court Must Try Case — Case at Bar. — In the instant case, a prosecution for rape, accused, a negro youth between fifteen and sixteen years of age, was convicted and sentenced to the electric chair. It was assigned as error that the court erred in trying accused without a jury. It appeared that the court fully explained to accused and to his counsel the rights of accused, and that accused, with the advice of his counsel deliberately determined to waive a jury and submit his case to the court. Section 8 of the Constitution provides that in case of a waiver of a jury, the court shall try the case.

Held: No error.

15. CONTINUANCES — Grounds — Want of Preparation — Case at Bar. — In the instant case, a prosecution for rape, accused contended that the court erred in refusing to grant a motion for continuance. Accused was arrested on the 25th day of November, and when the indictment was returned, on the 2nd day of December, counsel appeared for accused and requested time in which to prepare the defense. At his suggestion the trial was set for December 19. On that day the same counsel again moved for a continuance on the ground that he had had insufficient time to prepare for the trial and that he desired to call as a witness a doctor that was not present. He failed or declined to give the court the name of the doctor and to state what the doctor would say if he were present, although it was suggested by both the attorney for the Commonwealth and the court that the doctor's testimony or its substance should be submitted to the court for inspection in order to pass intelligently upon the motion.

Held: That there was no error in refusing the motion for continuance.

16. INFANTS — Liability for Crimes — Discretion as to Prosecution and Punishment of Minor Charged with Aggravated Offense Not Disturbed on Appeal. — Section 1918 of the Code of 1936 clearly reveals the legislative intent to leave the prosecution and punishment of a minor between 12 and 18 years of age for an aggravated offense to the discretion of a jury or of a court trying the case without a jury. If the evidence in such case establishes the aggravated nature of the felony, then the quantum of punishment must be within the limits fixed by statute for the particular crime. When this discretion has been exercised by the lower court, the Supreme Court of Appeals has no authority to substitute its judgment therefor.

17. RAPE — Punishment — Imposition of Death Sentence Held Proper — Case at Bar. — In the instant case, a prosecution for rape, accused, a negro youth between 15 and 16 years of age, was convicted and sentenced to the...