Mosely v. State

• Citation: 1 Ala.App. 108,56 So. 35
• Parties: MOSELY v. STATE.
• Decision Date: 18 May 1911
• Court: Alabama Court of Appeals

56 So. 35

1 Ala.App. 108

MOSELY v. STATE.

Court of Appeals of Alabama

May 18, 1911

Appeal from City Court of Mobile; O. J. Semmes, Judge.

Heustis Mosely was convicted of crime, and he appeals. Affirmed.

J. B Jenkins, for appellant.

R. C Brickell, Atty. Gen., for the State.

DE GRAFFENRIED, J.

The indictment in this case contains two counts, in one of which the defendant is charged with assault with intent to murder and in the other with assault with intent to rape. He was tried and convicted, and sentenced to imprisonment for 20 years in the penitentiary. The defendant appeals.

The bill of exceptions contains the following statement: "On the day set for the trial and when the case was called for trial, the defendant, through his attorneys, made a motion to the court that the indictment be quashed on the grounds that the defendant was below the age of 16 years, and that under a special juvenile delinquent act passed for Mobile county [Loc. Laws 1907, p. 363] a person under the age of 16 years could not be tried under an indictment and proceeded against but was amenable to the laws, and under jurisdiction of, the respective courts that were empowered by said act of the Legislature to act in such cases; the attorney for the defendant offering affidavit showing the age of defendant to be under 16 years. The court overruled the motion, on the ground that said special law for Mobile county was unconstitutional, in that it violated subdivision 14, § 104 of the Constitution of Alabama of 1901."

There is nothing in the act for the government of juvenile delinquents in the county of Mobile which prohibits an indictment against a child under 16 years of age, and we find nothing in the act prohibiting a child who commits a crime against the laws of the state from being indicted, convicted, and sentenced, as any other criminal, under the general laws of the state. While the act provides that any child who violates any of the general laws of the state, or any ordinance of the city of Mobile, or who is incorrigible, or associates with thieves, is growing up in idleness, or begs, or does a great many other things indicating immoral tendencies, is declared to be a delinquent, and methods are provided whereby "the care and custody and discipline of the child shall approximate as nearly as may be that which should be given by its parents, and that, as far as practicable, any delinquent child shall be treated not as a criminal but as misdirected and misguided, and needing aid, encouragement and assistance," there is nothing in the act indicating that it was the purpose of this act to prohibit the state from proceeding, in its criminal courts, criminally against a child, and, by the usual method of indictment, on conviction, from inflicting the same punishment for crime as upon those over 16 years of age. In fact, the act, in express terms, recognizes this power of the state, for it provides that "a disposition of any child under this act, or any evidence given in such cause, shall not in any civil, criminal or other cause of proceedings whatever, in any court be lawful or proper evidence against said child for any purpose whatever, except in subsequent cases against the same child under this act." The above-quoted language clearly indicates that the Legislature recognized that, under the terms of the act, a child, even after commitment under the act as a delinquent, was liable to a criminal prosecution at the hands of the state for some specific crime against its law.

The act in question is materially different from the one which was adopted, as a general...