People ex rel. Marks v. District Court of Adams County

Decision Date24 October 1966
Docket NumberNo. 22507,22507
Citation161 Colo. 14,420 P.2d 236
PartiesThe PEOPLE of the State of Colorado, ex rel. Floyd MARKS, District Attorney, Petitioner, v. The DISTRICT COURT OF ADAMS COUNTY and Judge Jean J. Jacobucci, One of the Judges Thereof, Respondents.
CourtColorado Supreme Court

Floyd Marks, Commerce City, for petitioner.

John L. Kane, Jr., Brighton, for respondents.

McWILLIAMS, Justice.

By direct information Charles Brett Lange was charged in the district court of Adams County with murder in the first degree. In response thereto Lange filed a 'Motion to Transfer Case to Juvenile Docket,' alleging in the motion that he was a minor, being then only fourteen years of age, and that he therefore 'should be treated as a juvenile offender' inasmuch as 'the ends of justice would best be served by such a transfer.'

After extended hearings, the Honorable Jean J. Jacobucci, a district judge, granted Lange's motion, and then went on to specifically order:

(1) that the information, charging Lange with murder in the first degree, be dismissed;

(2) that the district attorney forthwith file a petition in delinquency, in the name of the People and concerning Lange, 'alleging such facts as may be within the knowledge of said officer constituting an act or acts of delinquency, the same to be filed with this court'; and

(3) that if such petition in delinquency was not filed within ten days by the district attorney, then the court 'will direct one of its juvenile officers to institute such petition.'

It was at this juncture that the People, ex rel. Floyd Marks, the district attorney for Adams County, brought an original proceeding in this court against the district court of Adams County, and the aforementioned Judge Jacobucci. In this original proceeding it was alleged in the petition that in its order the district court had acted very greatly in excess of its jurisdiction and that inasmuch as the entire matter was one of great public concern and importance, a rule to show cause should issue. This honorable court granted the petition and ordered the named respondents to show cause why the judgment and order thus under attack should not be set aside and why the information charging Lange with murder should not be reinstated. The respondents have filed their response, and the matter now awaits our determination.

Counsel, as we understand it, though rather diametrically opposed as to the ultimate outcome of the instant proceeding, are nevertheless in agreement as to certain matters. For example, it is agreed that under applicable statutes Lange Could be proceeded against either in a juvenile delinquency proceeding, Or in a criminal proceeding wherein the charge would be murder in the first degree. And it is further agreed that in either event such action would now be instituted and prosecuted in the district court.

A very basic disagreement arises, however, as to whether, under the applicable statutes, in the situation where, as here, the district attorney has filed a criminal information charging a fourteen year old boy with murder in the first degree, the district court may thereafter dismiss the criminal information and order the district attorney to institute delinquency proceedings against the same fourteen year old. The respondents in this proceeding contend that by applicable statute such a discretionary power was reposed in the district court by the General Assembly in 1964; whereas, the petitioners in this proceeding contend that the General Assembly did no such thing and that the district court therefore simply has no such power to do that which it purported to do. And this, in short, is the nub of the controversy.

In support of the contention that the district court has a discretionary power to dismiss a criminal information charging a fourteen year old with murder and to order the district attorney to thereafter institute juvenile delinquency proceedings, the respondents rely primarily upon C.R.S.1963, 22--8--7, as amended in 1964. Accordingly, we shall now set forth that particular statute in its entirety. To facilitate our consideration of the statute, we shall, in brackets, number each of the sentences contained therein. Such bracketing should not be confused with the parentheses appearing in the statute proper. That particular statute reads as follows:

'ARREST--child before district or juvenile court. (1) (1) When any child under eighteen years of age is arrested for any offense other than traffic or game and fish violations, with or without warrant, such child shall be taken directly before the district or juvenile court instead of being taken before a county judge or police magistrate. (2) If said district or juvenile court shall not proceed with the hearing for any reason, said child shall be admitted to bail, or released in custody of its parent or parents. (3) If the child is taken before a county judge or police magistrate, upon complaint sworn out in such court or for any other reason, it shall be the duty of such county judge or police magistrate to transfer the case to the district or juvenile court, and it shall be the duty of the officer having the child in charge to take the child before that court. (4) In any such case the court may proceed to hear and dispose of the case in the same manner as if such child had been brought before the court upon petition originally filed as provided in section 22--8--3, as amended.

'(2) (5) When necessary, in cases where the delinquency charged would otherwise constitute a felony, the court may direct such child to be kept in proper custody until an information or complaint may be filed as in other cases under the laws of the state.

'(3) (6) Nothing in this section shall be construed to confer jurisdiction upon any county court or police court to try any case against any child under eighteen years of age, other than cases involving state traffic or game and fish laws or regulations, or municipal traffic ordinances.

'(4) (7) Nothing in this section shall be construed to prevent a county judge from conducting a preliminary examination in any case where a felony is charged.'

We shall now proceed to analyze the aforementioned statute, sentence by sentence. The first sentence contained therein tells us that when a child under eighteen is arrested for any offense, unless it be for traffic or game and fish violations, he shall be taken directly to the district court, and shall Not be taken to the county court or before a police magistrate. This same sentence also states that the foregoing procedure obtains whether the arrest be with or without warrant. And there would appear to be no distinction between the situation where a warrant has issued as the result of a filing of a criminal proceeding, such as murder, or where the warrant has issued as the result of the filing of a juvenile delinquency proceeding, inasmuch as the statute applies to a child under eighteen years of age who is arrested 'for any offense.'

The second sentence of the statute merely provides that once the arrested child is brought before the district court, the child shall at once be admitted to bail or released in the custody of his or her parent or parents, unless the district court shall proceed to immediately hear the matter. This particular sentence is subject to a further exception provided for in the fifth sentence in this statute, which will be considered in a moment.

The third sentence covers the situation where a child is taken by the arresting officer before a county judge or police magistrate, be it upon a complaint sworn out in that court or, if 'for any other reason,' the child is taken before such court. In such circumstance, according to the statute, it is the duty of the county judge or police magistrate to transfer the case to the district court, and to see that the child thus before it is immediately taken to the district court.

It is perhaps appropriate at this juncture to observe that the aforementioned third sentence has no applicability to the situation where a felony charge has been filed in the county court. In other words, where a felony charge is on file in the county court and the defendant is thereafter brought into that court, even though the defendant be under eighteen years of age, the county judge is under no statutory duty to transfer the case and the child to the district court. This is so because of the seventh sentence of the statute. The seventh sentence of the statute recognizes that the 'new' county court, as the successor to the 'old' justice court, Does have jurisdiction to conduct a preliminary examination when a felony charge is before it, as it specifically provides that nothing in the entire section of the statute should be so construed as to prevent a county judge from conducting a preliminary examination 'in any case where a felony is charged.' Hence, nothing in the third sentence of the statute requires, or even permits, the county court to summarily transfer a felony charge to the district court. And, conversely, the district court, then, could never receive a 'transferred' felony charge from the county court. Such should not be confused with the situation where a felony charge is 'bound over' to the district court from the county court, where the latter court, After hearing, has determined that there is so-called 'probable cause.'

The fourth sentence, then, simply empowers the district court in any matter which, pursuant to the aforesaid third sentence, is transferred to it by the county judge or by a police magistrate, to thereafter proceed to hear and dispose of the case as though the child were before the district court under a petition in delinquency originally filed in the district court.

The fifth sentence of this statute provides that in cases where a child is charged with delinquency which would otherwise constitute a felony, the district court May direct that the child be kept...

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