State ex rel. Boyd v. Rutledge

• Decision Date: 11 February 1929
• Docket Number: No. 29073.,29073.
• Citation: 13 S.W.2d 1061
• Parties: THE STATE EX REL. HENRY BOYD, by His Next Friend, GEORGE F. WISE, v. GEORGE W. RUTLEDGE, Judge of Circuit Court of City of St. Louis.
• Court: Missouri Supreme Court

13 S.W.2d 1061

THE STATE EX REL. HENRY BOYD, by His Next Friend, GEORGE F. WISE, v. GEORGE W. RUTLEDGE, Judge of Circuit Court of City of St. Louis.

No. 29073.

Supreme Court of Missouri, en Banc.

February 11, 1929.

[13 S.W.2d 1062]

Prohibition.

PRELIMINARY RULE DISCHARGED.

Forrest C. Donnell and George F. Wise for relator.

(1) A child, charged with having violated a law of this State, in a county having a population of over 50,000, when under the age of seventeen years, is subject to trial for such offense only in the juvenile court. Secs. 2591-2613, R.S. 1919. (2) In determining whether a child is under the age of seventeen years so as to be brought within the purview of the Juvenile Court Act, the age of said child is to be reckoned as of the date of the alleged commission of the offense with which he is charged, and since the relator was under the age of seventeen years on each of the dates on which he is charged with having committed crime, the cases against him come within the jurisdiction of the juvenile court. Secs. 2591, 2592, 2598, 2612, R.S. 1919; State ex rel. Matacia v. Buekner, 300 Mo. 359; State v. Damico, 4 S.W. (2d) 424; State v. Carolla, 316 Mo. 213; State v. Adams, 316 Mo. 157; Mattingly v. Commonwealth, 171 Ky. 222; Cloyd v. Commonwealth, 212 Ky. 178; Harman v. Commonwealth, 204 Ky. 186; Goodfriend v. Commonwealth, 288 S.W. (Ky.) 330; State v. Dubray, 121 Kan. 886; State v. Malone, 156 La. 617; State v. Raomin, 107 So. (La.) 597; State v. Dabon, 162 La. 1075; State v. Callson, 156 La. 972; State v. Duckett, 160 La. 920; State v. Coble, 181 N.C. 555. (3) If any statute requires that the age of the child be reckoned as of the time of his arrest, or the filing of the information against him, or at any subsequent date, to bring him within the jurisdiction of the juvenile court, said statute is unconstitutional, at least in part, and said statute is valid only in so far as it requires children who are over the age of seventeen at the time of the commission of the offense to be subject to trial in the criminal division of the circuit court. Sec. 1, 14 Amendment, U.S. Constitution. (4) The defendant has no jurisdiction to try the relator in the criminal division of the circuit court on the grounds that (as contended by defendant), in the judgment of the defendant the relator is not a proper subject to be dealt with under the reformatory provisions of the Juvenile Court Act, and that the defendant, in his discretion, has denied the right to have the cases against the relator transferred to the juvenile court, for: (a) The defendant had no authority to deny the right to transfer the cases against the relator to the juvenile court, because the statute upon which the defendant relies for such authority is unconstitutional. Sec. 1, 14 Amendment, U.S. Constitution; Home T. & T. Co. v. Los Angeles, 227 U.S. 278. (b) The defendant did not exercise any discretion denying the right to transfer the cases against the relator to the juvenile court in accordance with said statute.

Stratton Shartel, Attorney-General, and Hibbard C. Whitehill, Special Assistant Attorney-General, for respondent.

(1) The writ of prohibition may be issued only in extraordinary cases and only when the lower court is wanting in jurisdiction in a class of cases to which the pending case belongs or if such court is attempting to exercise authority in excess of its jurisdiction in a particular case. State ex rel. v. Thomas, 278 Mo. 85; State ex rel. v. Coon, 317 Mo. 691; State ex rel. v. Shain, 297 Mo. 379; State ex rel. v. Ittner, 304 Mo. 135; State ex rel. v. Shot, 304 Mo. 523. (2) The constitutionality of a statute is not for determination by the Supreme Court on original prohibition challenging the lower court's authority in a particular case. State ex rel. v. Westhues, 290 S.W. (Mo.) 443; State ex rel. v. Johnston, 234 Mo. 338. (3) Unless a plea, motion, objection or exception to the jurisdiction of the trial court has been filed by relator, as defendant below, and overruled, writ of prohibition should not issue. State ex rel. v. Huck, 296 Mo. 374; State ex rel. v. Shain, 297 Mo. 378; State ex rel. v. McQuillin, 262 Mo. 268; State ex rel. v. McQuillin, 256 Mo. 706; Ex parte Rush, 305 Mo. 121. (4) Where a court having jurisdiction of the subject-matter of an action determines some fact in reference to its jurisdiction, its ruling that it has jurisdiction, if wrong, is simply error, for the correction of which prohibition will not lie. State ex rel. v. Johnson, 293 Mo. 302; State ex rel. v. McQuillin, 262 Mo. 270; State ex rel. v. Wurdeman, 304 Mo. 583; State ex rel. v. McQuillin, 256 Mo. 706; State ex rel. v. Shields, 237 Mo. 334; State ex rel. v. Johnston, 234 Mo. 351; State ex rel. v. Mills, 231 Mo. 499. (5) Where the trial court has a discretion to do or perform some act, prohibition to control the discretion of such court, lies only in the event that such discretion has been palpably abused. And where the discretion exercised by the lower court has been expressly conferred by statute, this court should refuse to grant prohibition, as it will be presumed, in the absence of any record to the contrary, that the court did its duty and found that defendant (relator herein) was not a proper sub-Court Act. Laws 1927, sec. 1, p. 129; State v. Hilton, 248 Mo. ject to be dealt with under the reformatory provisions of the Juvenile 526; State v. Sharp, 233 Mo. 283; State ex rel. v. Johnson, 293 Mo. 311; State ex rel. v. Stewart, 281 S.W. 768; Abramsky v. Abramsky, 261 Mo. 117; State v. Gregori, 2 S.W. (2d) 747; State v. Adams, 316 Mo. 157; State v. Knight, 278 S.W. 1038; State v. Stewart, 274 Mo. 657. (6) The Juvenile Court Acts do not modify, change or repeal, either expressly or by implication, the existing organic and statutory laws with respect to the prosecution and punishment for crime. Proceedings in juvenile courts where the charge of delinquency is the commission of a felony or misdemeanor, are not criminal in their nature and will not bar a prosecution of such minor by indictment or information in accordance with the Constitution. Secs. 1141, 2598, R.S. 1919; State ex rel. v. Porterfield, 264 S.W. 386; State ex rel. v. Buckner, 300 Mo. 368; Mo. Constitution, Art. 2, secs. 12, 22; State ex rel. v. Pence, 303 Mo. 608; State v. Talken, 316 Mo. 600. (7) The right or authority of the respondent to transfer said cases to the juvenile court being entirely statutory, defendant, as relator here, must show that he is clearly within the meaning of said section. The Juvenile Court Act applicable to the city of St. Louis expressly provides that whenever "a child under the age of seventeen years is arrested with or without warrant ... or if the child shall have been taken before a justice of the peace or police magistrate or judge of such other court, it shall be the duty of such justice or police magistrate or judge to transfer the case to such juvenile court." Under this statute, respondent herein had no authority in the first instance to transfer the cases pending before him to the juvenile court, for the reason that at the time of relator's arrest and upon his appearance at said criminal court, he was then over seventeen years of age according to the record herein, and was not within the purview of the statute governing the matter. Sec. 2596, R.S. 1919; Arrandell v. State, 131 S.W. (Tex.) 1097; McLaren v. State, 209 S.W. (Tex.) 669. (8) When respondent originally transferred said cases to the juvenile court, he completely divested himself of all jurisdiction and authority over the same. When the juvenile court transferred said causes back to the criminal court for the reason that relator was over the age of seventeen years and beyond its jurisdiction, said causes became entirely new and distinct proceedings within the jurisdiction of respondent. And if he had exercised any discretion by transferring said causes to the juvenile court in the first instance, he was thereafter, upon retransfer of said causes by the juvenile court, possessed of jurisdiction and authority under the statute to exercise the discretion conferred upon him by law, the same as though said causes had come into his jurisdiction as entirely new proceedings. McLaren v. State, 209 S.W. (Tex.) 669. (9) A juvenile who commits a felony while under seventeen years of age can be tried in the district court in accordance with established criminal procedure, in the same manner as one over seventeen years of age when the offense was committed, if the juvenile defendant be more than seventeen years of age when brought to trial, as the statute refers to the time of the trial and not to the time the offense is committed. McLaren v. State, 85 Tex. Cr. 31, 82 Tex. Cr. 449; Davis v. State, 80 Tex. Cr. 118; Townser v. State, 182 S.W. 1104; Arrendell v. State, 60 Tex. Cr. 350; McCallen v. State, 174 S.W. (Tex.) 611; Davis v. State, 188 S.W. (Tex.) 990; Ex parte Bartee, 174 S.W. (Tex.) 1051; State v. Howard, 126 La. 354. (10) The statute (Act of 1927, Laws 1927, p. 129) and similar enactments are proper exertions of legislative power, and such an act is not violative of either the State or Federal Constitution. State v. Adams, 316 Mo. 159; Ex parte Bartee, 174 S.W. (Tex.) 1053; McCallen v. State, 174 S.W. (Tex.) 611; Arrendell v. State, 131 S.W. (Tex.) 1096; Davis v. State, 188 S.W. (Tex.) 990.

[13 S.W.2d 1063]

RAGLAND, J.

Prohibition. Relator states his case as follows:

"This is an application for a Writ of Prohibition to prohibit the Circuit Court for Criminal Causes of the City of St. Louis, Division No. 11, and the Honorable Charles W. Rutledge, Judge thereof, from taking jurisdiction of the two cases which arose against the relator in the manner hereinafter set forth.

"On March 2, 1928, there was filed with the Clerk of the St. Louis Court of Criminal Correction two informations against the relator. One of said information charged the relator with having committed...