Robinson v. Kieren
| Decision Date | 14 January 1949 |
| Citation | 216 S.W.2d 925,309 Ky. 171 |
| Parties | ROBINSON v. KIEREN. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Oldham County; J. Wirt Turner, Judge.
Habeas corpus proceeding by Robert H. Robinson against F. S. Kieren Warden, etc., to obtain release from reformatory. From an adverse judgment, plaintiff appeals.
Judgment reversed for appropriate proceedings.
Robert W. Zollinger, of Louisville, for appellant.
A. E Funk, Atty. Gen., for appellee.
STANLEY Commissioner.
By a habeas corpus proceeding the appellant, Robert H. Robinson seeks release from the Reformatory in which he is confined as a prisoner for life on conviction of the crime of armed robbery. His claim rests upon the proposition that the judgment under which he is confined is void because steps necessary to the jurisdiction of the court were not taken. In turn, that goes back to proceedings in the Juvenile Court of Allen County. This habeas corpus proceeding was tried on attested copies of judgments of the Allen Quarterly Court and the Allen Circuit Court. The first recites that the defendant, Robinson, appeared in person and by counsel and waived his right to an examining trial on a warrant charging him with the crime. Further, 'It appearing that the defendant, Robert H. Robinson, is a juvenile sixteen years of age, therefore coming under the jurisdiction of this Court unless said jurisdiction be waived, it is now ordered that the juvenile jurisdiction of this Court over said Robert H. Robinson be and it is hereby waived to the Allen Circuit Court.'
Upon failure to execute an appearance bond, the defendant was ordered to jail to await trial. The record of the Allen Circuit Court is of the indictment, trial, judgment and sentence. These are in the usual form and without reference to the defendant being a juvenile offender.
The statutes prescribe that a juvenile court shall give notice of its proceedings to the child's parents or guardian or other person standing in loco parentis and that summons shall issue requiring the person having his custody to appear for a hearing as to the disposition to be made of the child. KRS 199.050, 199.060, 199.080. If after a hearing the juvenile court concludes that the accused child has committed a crime, it may dispose of him as a delinquent or, in its discretion, may relinquish jurisdiction over the child and permit him to be proceeded against in accordance with the laws governing crimes, and in such an event make an order transferring the case to the court having jurisdiction of the offense.
We have held that where the provisions as to service and return of the process have not been followed the circuit court to which the case has been transferred has no jurisdiction. Commonwealth v. Davis, 169 Ky. 681, 185 S.W. 73; Compton v. Commonwealth, 194 Ky. 429, 240 S.W. 36. In the present case the respondent, Warden of the Reformatory, resists the petitioner's right to release on the writ of habeas corpus upon the ground that there was no evidence or record that the provisions of the statutes were not complied with. He maintains that the legal presumption must be indulged that the proceedings leading to the judgment of the juvenile court were regular. It is argued that under KRS 199.060(3) notice may be dispensed with if the person upon whom it should have been served is present and that it must be concluded he was present in this instance since there is no record or evidence to the contrary.
Ordinarily there is no presumption of jurisdiction of a county court for it is inferior and limited and jurisdiction must be affirmatively shown. Taylor v. Moore, 112 Ky. 330, 65 S.W. 612; Bard v. Bard, 295 Ky. 254, 173 S.W.2d 569. But the presumption is the contrary in a collateral attack on a judgment where the court is one of exclusive and original jurisdiction, as is the circuit court with only a few exceptions. Waters v. Commonwealth, 171 Ky. 457, 188 S.W. 490. Under the statutes, the county court when sitting in juvenile session is such a court, and the circuit court is regarded as one of limited or secondary jurisdiction. Waters v. Commonwealth, supra; Compton v. Commonwealth, 194 Ky. 429, 240 S.W. 36; Newsome v. Commonwealth, 227 Ky. 710, 13 S.W.2d 1046.
We have had several cases involving the question of jurisdiction of the circuit court in relation to procedure in the juvenile court, but in every one of them the question was raised on an appeal as a direct attack upon the judgment. Among them are Commonwealth v. Davis, 169 Ky. 681, 185 S.W. 73; Waters v. Commonwealth, 171 Ky. 457, 188 S.W. 490; Compton v. Commonwealth, 194 Ky. 429, 240 S.W. 36; Newsome v. Commonwealth, 227 Ky. 710, 13 S.W.2d 1046; Angel v. Commonwealth, 231 Ky. 132, 21 S.W.2d 150; Grise v. Commonwealth, 245 Ky. 220, 53 S.W.2d 362; Mauk v. Commonwealth, 268 Ky. 237, 104 S.W.2d 955.
A habeas corpus proceeding where release from custody or restraint is held under a judgment is a collateral attack upon the judgment, and the right to the writ exists only when the judgment is void. Department of Public Welfare v. Polsgrove, 250 Ky. 517, 63 S.W.2d 603; Adams v. Tuggle, 300 Ky. 751, 189 S.W.2d 601.
As we have stated, the circuit court is regarded as one of secondary and limited jurisdiction. But it is so only because it must receive the case for final trial by transfer from the county court sitting in juvenile session. The jurisdiction of the county court within the definition of the statute governing the trial and disposition of delinquent juveniles charged with committing criminal offenses is precedent. Jurisdiction first attaches or vests in the county court sitting as the juvenile court. The secondary jurisdiction of the circuit court rests upon proper procedure and disposition in that initial court. Otherwise, prosecution of minor defendants who fall within the statutory classification under the Criminal Code of Practice is precluded. If jurisdiction of the child be not acquired by the juvenile court, then, of course, it may not be transferred. Failure to take notice of the distinction has resulted in some inconsistencies in our several opinions. And because of the unusual condition some difficulty is encountered in considering the matter of presumptions of jurisdiction in determining whether or not a judgment of a circuit court committing a juvenile offender to prison is voidable or void. But we do not really reach the point of resolving the questions of presumptions in the present case even though it is a collateral attack upon both judgments.
It is to be observed from our statement that the order transferring the petitioner's case to the circuit court was that of the Allen Quarterly Court. It is in the capacity of a magistrate or judge of the county court that examining trials are held--not the quarterly court. Criminal Code of Practice secs. 26, 28, 49. And proceedings...
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