Mont, In re

• Citation: 175 Pa.Super. 150,103 A.2d 460
• Parties: In re MONT.
• Decision Date: 16 March 1954
• Court: Superior Court of Pennsylvania

Page 460

103 A.2d 460

175 Pa.Super. 150

In re MONT.

Superior Court of Pennsylvania.

March 16, 1954.

William J. Woolston, Philadelphia, for appellant.

Samuel Dash, Asst. Dist. Atty., Michael von Moschzisker, First Asst. Dist. Atty., Richardson Dilworth, Dist. Atty., Philadelphia, Frank P. Lawley, Jr., Deputy Atty. Gen., Harry F. Stambaugh, Sp. Counsel, Pittsburgh, Harrington Adams, Acting Atty. Gen., for appellee.

Before RHODES, P. J., and HIRT, RENO, ROSS, GUNTHER and WRIGHT, JJ.

RHODES, President Judge.

On this appeal, Arnold Mont, an alleged delinquent, questions the validity and legality of a finding of delinquency and of the commitment to a reform school made by the Municipal Court of Philadelphia, Juvenile Division, under The Juvenile Court Law of June 2, 1933, P.L. 1433, as amended, 11 P.S. § 243 et seq. Some of the questions involved are identical with those raised in Re Holmes, Pa.Super., 103 A.2d 454. The two appeals, although not otherwise related, were argued together.

Briefly, the evidence in this case discloses that Mont, aged 15, and a companion, obtained a 22 caliber rifle, and Mont, while shooting at objects in the street from a roof top, shot and killed Robert Morgan, Jr., aged 11, who happened suddenly to emerge from around the corner of a building into the path of the rifle fire.

On September 23, 1952, a petition was filed in the Municipal Court of Philadelphia, Juvenile Division, alleging the delinquency of Mont based on charges of homicide and burglary. On the same day, after hearing, Mont was held by Judge Propper, sitting as a committing magistrate, without bail for the grand jury on a charge of murder. Thereafter, the grand jury returned true bills on indictments for murder and manslaughter. Subsequently, on January 28, 1953, the Commonwealth had entered a nolle prosequi on the murder bill. The charges of manslaughter remained pending in the Court of Quarter Sessions of Philadelphia County, which then transferred the proceedings to the Juvenile Court.

A hearing was held before Judge Propper in the Juvenile Court on February 16, 1953, at which time counsel appeared for Mont. At this hearing Detective McGurk gave testimony as to the police investigation of the shooting, and read in evidence the apparently voluntary statement of Mont to the effect that Mont hit Robert Morgan, who came into view from around the corner of a house, while Mont was aiming at a tin can in the street from a position on a roof top. A representative from the Board of Education testified Mont was absent from school 87 days out of a school year. A probation officer of the Juvenile Court testified to Mont's oral statement that Mont had 'pulled the trigger' and shot the deceased boy. Over counsel's claim of privilege against self-incrimination on behalf of Mont, appellant was examined and corroborated his former statements as to the manner of obtaining the rifle and the circumstances surrounding the killing of Robert Morgan. Mont's mother and father were called and examined by the court and counsel for Mont. Month's attorney also placed upon the record of this hearing the fact that he had attempted to secure a court order for prehearing inspection of the entire record of the Mont proceeding in the Juvenile Court, including the reports of investigators. The court permitted inspection of the record but excluded therefrom what it considered confidential reports of its investigators. On the basis of the testimony the court formally adjudged Arnold Mont a delinquent, and giving consideration to his past record, ordered him committed to Glen Mills School For Boys. According to the court records, as set forth in the court's opinion, Mont was arrested July 10, 1951, for delinquency based on larceny of a bicycle, aggravated assault and battery, highway robbery, and malicious mischief. Apparently no formal hearing was had, nor was any finding made on these alleged delinquencies. Further, the court in its opinion states: 'On June 22, 1952 Arnold Mont was placed on probation for delinquency involving an arson charge. On September fifth, 1952 the juvenile court judge who heard the instant case placed Arnold Mont on probation because of delinquencies involving an incorrigibility charge made by his mother and a disorderly conduct charge.'

On appeal Mont's attorney contends that the jurisdiction of the juvenile court is limited to unlawful acts other than murder and hence the court lacked jurisdiction or power to find the child delinquent and commit him on what was in substance a murder charge. Clearly, under general principles and under the express provisions of the Law, the juvenile court has no authority or jurisdiction to conduct a criminal trial of a child on a murder indictment. The Law makes certain exceptions in the case of murder. Cf. In re Edwards, 54 Pa.Dist. & Co. 601. Section 14, as amended, 11 P.S. § 256, requires the court of quarter sessions of oyer and terminer in all pending criminal charges involving children under 16 to transfer such cases other than murder to the juvenile court. So, also, in section 18, 11 P.S. § 260, where a child above 14 is held for any offense other than murder, punishable by imprisonment in a state penitentiary, the judge of the juvenile court having jurisdiction may, if the interests of the state require it, certify the case to the district attorney for formal criminal prosecution. Neither of these sections says or implies that the act of unlawful homicide may not constitute, under proper circumstances, the basis for the jurisdiction of the juvenile court, and the ground for adjudication and commitment of the minor as a delinquent. In the present case it was entirely proper and lawful for a nol. pros. to be entered on the murder charge and to remit the case to the juvenile court for action. While under the Law the juvenile court has no...