People v. Ross

• Decision Date: 01 July 1926
• Docket Number: No. 177.,177.
• Citation: 209 N.W. 663,235 Mich. 433
• Parties: PEOPLE v. ROSS.
• Court: Michigan Supreme Court

235 Mich. 433

209 N.W. 663

PEOPLE

v.ROSS.

No. 177.

Supreme Court of Michigan.

July 1, 1926.

Exceptions from Circuit Court, Marquette County; Richard C. Flannigan, Judge.

Fred Ross, Jr., was convicted of murder in the second degree. On exceptions before sentence. Conviction affirmed.

Argued before the Entire Bench.

Bird, C. J., and Snow and McDonald, JJ., dissenting. Thomas Clancey, Pros. Atty., of Ishpeming, for the People.

Clarence E. Lott, of Negaunee, for Respondent.

BIRD, C. J. (dissenting).

Defendant was charged with murder in the Marquette circuit court and convicted, and the case comes to this court on exceptions before sentence.

It appears that at the time the crime was committed on July 10, 1925, the defendant was a minor, not yet 15 years of age. He was apprehended and taken before the probate court, and, after the county agent investigated, he was charged as a delinquent, on account of the offense which he committed. He was committed to the custody of the county agent, to be confined in the detention room, in the city of Marquette, until the further order of this court.

On August 15, 1925, the defendant became 15 years of age. On the 26th of that month the prosecuting attorney filed a petition in probate court requesting the court to waive jurisdiction so that defendant could be taken into the circuit court and charged with murder, under the authority of the following proviso:

‘Provided, however, that in any case where a child over the age of fifteen years is charged with a felony, the judge of probate may, after investigation and examination, and upon motion of the prosecuting attorney, waive jurisdiction; whereupon it shall be lawful to try such child in the court having general criminal jurisdiction of such offense.’ Pub. Acts 1923, No. 105, § 6.

This motion was granted. Jurisdiction was waived by the probate court and defendant was then taken into the circuit court, where he was charged, tried, and convicted of second degree murder. Defendant's counsel moved to quash the information because the defendant was under 15 years of age when the offense was committed, and therefore the probate court could not waive jurisdiction. The trial court denied the motion on the ground that defendant was 15 years of age when charged with the offense in the circuit court.

The sole question raised is whether the probate court can waive jurisdiction where the boy is 15 years of age when charged, but where the offense for which he is charged was committed while he was 14 years of age.

In construing this proviso, we should keep in mind the thought that lay back of the constitutional and statutoty provisions changing the method of dealing with juvenile offenders.

Until recent years we apprehended, tried, and disposed of juvenile offenders the same as we did adults. In many cases the courts did more harm than good. They committed juvenile offenders to our prisons where their older associates made criminals of them before they were released. At last we came to realize that youth has its reckless and irresponsible moods, and that they should be dealt with on a different basis than adults. It was this thought that put into the state Constitution, and afterwards into the statute, the present method of dealing with juvenile offenders. It created juvenile courts, and in counties of this class made the probate court the juvenile court. The law is clear that it intended juvenile courts should have original jurisdiction over offenses committed by children under 17 years of age (Act 325 of Laws of 1907, as amended by Act 105, Laws of 1923), with one exception, when any ‘child over the age of fifteen years is charged with a felony.’ It left it to the sound discretion of the probate judge to say whether he would waive jurisdiction and allow the child to be taken into the circuit court for trial. It is evident from the act that it is the child's immature mind which protects him from the common-law court until he has arrived at a certain age. This protection is afforded him on the theory that a child may commit some criminal act before he is 17 that he would not later commit by reason of his maturity. In view of this we think it is not so material how old he is when charged, but the important fact is how old was he when he committed the criminal act. Suppose a boy, 13 years of age, commits a criminal act, can you wait until he is 15 years of age and then charge him with the offense in the circuit court? If you can, by what standard are you going to deal with him, as a child or as an adult? It is acts committed by reason of immaturity of mind that the law is dealing with, and not his age, when he is charged with being delinquent. We think the proviso should be construed the same as though it read:

‘Provided, however, that in any case where a child over the age of fifteen years commits a felony the judge of probate,’ etc.

This is the only interpretation that is in accord and consistent with the constitutional and legislative changes, and the only interpretation that will work out the purpose of the law.

This question has been before other courts. An interesting case is that of Mattingly v. Commonwealth, 171 Ky. 222, 188 S. W. 370. It was there said, in part:

‘Upon the question of jurisdiction, the only point raised here that is not concluded by former decisions of this court is the suggestion that the age at the time of trial, rather than at the time the crime was committed, should prevail. This suggestion, however, is, in our judgment, unsound from the very terms of the statute as well as upon reason. The statute defines a ‘delinquent’ child to be one who, of the ages specified, commits any of the acts named, including the crime charged here, and then vests in county courts of the state exclusive jurisdiction to try such ‘delinquent’ children. They become ‘delinquent’ children, by the commission of the act denounced, when the acts are committed, and the jurisdiction then vests exclusively in the county court, which court having thus acquired exclusive jurisdiction cannot be ousted by its failure to act. The very purpose of this law, as has been declared by this court upon more occasions than one, is to provide for the protection and care of juvenile offenders in a humanitarian effort to prevent them from becoming outcasts and criminals, rather than to inflict punishment for their delinquencies. To hold that the officers charged with the execution of the law may defer action until the offending child has passed the age thus protected by the statute, and then prosecute him as a criminal and not as a juvenile, would defeat the very purpose of the law and cannot be sanctioned.'

Other cases in accord are Waters v. Commonwealth, 171 Ky. 457, 188 S. W. 490;Compton v. Commonwealth, 194 Ky. 429, 240 S. W. 36; Ex Parte Parnell (Okl. Cr. App.), 200 P. 456;In re Tom, 17 Cal. App. 678, 121 P. 294;People v. Oxnam, 170 Cal. 211, 149 P. 165;State v. Thomas, 250 Mo. 189, 157 S. W. 330;Sams v. State, 133 Tenn. 188, 180 S. W. 173;State v. Coble, 181 N. C. 554, 107 S. E. 132;State v. Pierce County Sup. Ct., 105 Wash. 684, 179 P. 79.

Due, undoubtedly, to the many changes in this law in recent years, there appears to be no provision for the disposition of delinquent children under 15 years of age who commit felonies beyond the usual penalties for minor delinquencies. This is a subject for legislative consideration.

The judgment of conviction should be set aside, and defendant should be committed to the care of the county agent, and confined in the detention home until the further order of the probate court.

SNOW and McDONALD, JJ., concurred with BIRD, C. J.

WIEST, J. (for affirmance).

I am not in accord with the opinion prepared by the CHIEF JUSTICE. It way be well to state the case we have before us.

Defendant believed that August La Plant, a neighbor, had money, so July 10, 1925, he took a rifle and shells from the family home, and, accompanied by his 11 year old brother, lay in wait alongside the railroad track over which he knew Mr. La Plant would walk on his return from the city of Negaunee. When Mr. La Plant had passed the hiding place, defendant stepped upon the railroad track and shot him in the back, killing him instantly. Then defendant robbed the body of a pocketbook containing upward of $50, rolled the body from the track, covered it with old railroad ties, went to a nearby lake and threw the rifle therein, marked the place, however, with a stick, remained in the woods until evening, and then returned home. Upon these unquestioned facts defendant was convicted of murder in the second degree. At the date of the commission of the offense, defendant lacked 35 days of being 15 years of age, and was then a ward of the juvenile court on account of a delinquency some few months previous. Proceedings against defendant were instituted in the juvenile division of the probate court, July 15, 1925, and defendant sent to a place of detention pending consideration and determination of his case. While so under detention, the juvenile court, by order, made August 26, 1925, waived jurisdiction that defendant might be charged with and tried for the felony in the circuit court.

In considering the provisions of the Juvenile Court Act, we should keep in mind certain principles firmly established for the protection of life and the safeguarding of society. Our statutes define degrees of murder and prescribe punishments, but leave prosecutions to follow the course of the common law. Construction of the Juvenile Court Act is aided by consideration of all of its provisions, and when this is done it clearly appears that it is the age of the child when charged in a criminal proceeding with a felony rather than his age at the time of the commission of a felony, that is contemplated. At the time defendant committed the crime of murder, and when the proceeding was instituted in the juvenile court,...