State ex rel. Matacia v. Buckner

• Decision Date: 08 August 1923
• Parties: THE STATE ex rel. FRANK MATACIA v. THOMAS B. BUCKNER, Judge of Circuit Court, and Judge Pro Tem. of Juvenile Court, of Jackson County
• Court: Missouri Supreme Court

254 S.W. 179

300 Mo. 359

THE STATE ex rel. FRANK MATACIA v. THOMAS B. BUCKNER, Judge of Circuit Court, and Judge Pro Tem. of Juvenile Court, of Jackson County

Supreme Court of Missouri

August 8, 1923

Preliminary rule discharged.

Frank Benanti, Harry L. Jacobs and Julius C. Shapiro for relator.

(1) Prohibition is the proper remedy where the court lacks or exceeds jurisdiction, and an appeal does not afford a sufficiently speedy or adequate relief. State ex rel. v Fort, 210 Mo. 512; State ex rel. v. Burney, 193 Mo. 336; State ex rel. v. Latshaw, 237 S.W. 770. (2) No return having been filed within the required time, and the attempted correction by respondent of the matters complained of made during the pendency of the preliminary writ, being a nullity, relator's motion for judgment on the pleadings should be sustained. Secs. 2060, 2065, R. S. 1919; State ex rel. v. Barnett, 245 Mo. 99; State ex rel. v Rassieur, 190 S.W. 915. The act attempts to prescribe a summary procedure for punishing crimes without providing for indictment, proper information, counsel for the accused arraignment, bail, jury trial (except on demand), public trial, compulsory process for witnesses, and hence, being violative of the Constitution, is void and of no effect. Secs. 12, 22, 24, 28, 30, Art. 2, Mo. Const.; Sec. 38, Art. 6, Mo. Const.; Sec. 1, Art. 14, Amend. U. S. Const.; State ex rel. v. Tincher, 258 Mo. 1; State ex rel. v. Kirby, 260 Mo. 120; State v. Kyle, 166 Mo. 287; Ex parte See, 241 Mo. 292; People ex rel. O'Connell v. Turner, 55 Ill. 280; Roth v. House of Refuge, 31 Md. 329; State ex rel. v. Ray, 63 N.H. 406; Re Sanders, 53 Kan. 200; Knowack v. Children's Aid Society, 158 N.Y. 482; People ex rel. v. Board of Managers, 148 Ill. 413; Robinson v. Wayne, 151 Mich. 315; Mansfield Case, 22 Pa. S.Ct. 224; Hogue v. State, 220 S.W. 97. (4) The act contains more than one subject; and the subject of prosecutions for alleged crimes is not expressed in the title as required by the Constitution. Secs. 28, 34, Art. 4, Mo. Const.; State v. McEntry, 269 Mo. 228; State v. Sloan, 258 Mo. 305; Booth v. Scott, 205 S.W. 633; State v. Fulk, 207 Mo. 26; Kansas City v. Payne, 71 Mo. 162; Witzmann v. So. Ry. Co., 131 Mo. 612; State v. Persinger, 76 Mo. 346; Milne v. People, 224 Ill. 125. (5) The body of the act is broader than its subject and contains matters not germane thereto. Amendments were attempted to be made to then existing statutes without the subject title announcing such contemplated amendments or repeals, and hence is violative of the Constitution and of no force and effect. Secs. 4205, 4206, 1007, 5055, 5056, 5057, 1529, R. S. 1909; Secs. 2660, 2661, 736, 3847, 3848, 3849, 12426, R. S. 1919; Secs. 5253, 5254, R. S. 1909; Secs. 4047, 4048, R. S. 1919; Secs. 28, 34, Art. 4, Mo. Const.; State ex rel. v. Baker, 129 Mo. 482; State ex rel. v. Great Western Coffee Co., 171 Mo. 634; State ex rel. v. Assurance Co., 251 Mo. 294. (6) The act attempts to divest the criminal court of jurisdiction and to establish a new court of record of exclusive jurisdiction, in violation of the Constitution. Secs. 1, 22, 31, Art. 6, Mo. Const.; Ex parte Snyder, 64 Mo. 58; State ex rel. v. Nast, 209 Mo. 78; State ex rel. v. Tincher, 258 Mo. 1; In re Lechter, 190 S.W. 19; Mansfield Case, 22 Pa. S.Ct. 224; State v. Newell, 90 S. E. (N. C.) 594; Hicks v. State, 92 S. E. (Ga.) 216; In re Parker, 118 La. 471.

Griffin & Orr, Seehorn, Barnes & Schwartz and W. B. Brown for respondent.

(1) The act throws about the juvenile defendant every protection provided by the practice and procedure in a criminal charge against an adult in the criminal court of the State. Sec. 2502, R. S. 1919; In re Turner, 94 Kan. 115; In re Sharp, 18 L. R. A. (N. S.) 886; Lindsey v. Lindsey, 45 L. R. A. (N. S.) 908. (2) The title to the act is not violative of the Constitution. Ex parte Loving, 178 Mo. 194; Ex parte Powell, 170 P. 1022; Commonwealth v. Fisher, 213 Pa. St. 48. (3) The body of the act is not broader than its subject title and contains no matters not germane thereto. Lynch v. Murphy, 119 Mo. 163; Ex parte Loving, 178 S.W. 194; State ex rel. v. Kirby, 260 Mo. 120; State ex rel. v. Wilder, 197 Mo. 27.

OPINION

In Banc

Prohibition.

JAMES T. BLAIR, J.

-- Prohibition. Relator is a minor under the age of seventeen years and seeks a writ prohibiting respondent from proceeding under the Act of 1911 (Laws 1911, p. 177, et seq.; Sec. 2591 R. S. 1919) pertaining to neglected and delinquent children in counties having a population of fifty thousand or more.

The proceeding against relator is pending in the Division of the Circuit Court of Jackson County which has been designated as the Juvenile Court, and which also constitutes the second division of the Criminal Court of Jackson County. The regular judge of the division disqualified and called in respondent to sit in the case. A probation officer of Jackson County signed, swore to and filed in the juvenile court an information charging that relator had committed rape. Subsequently, this information was amended. Thereafter a motion to quash was filed and overruled. On application a preliminary rule in prohibition was granted against respondent. A return was filed under the name of the regular judge of the division, as Judge of the Juvenile Court. A motion to make the preliminary rule absolute for want of a return, and a motion to discharge the preliminary rule, and another to permit respondent to adopt the return, were filed. The first two were overruled, and the third was sustained. In the meantime and prior to the filing of the return, the Prosecuting Attorney of Jackson County filed his information in the same division, wherein he charged relator with rape and alleged that he was a delinquent child under the Act of 1911. The issues were made up in this court by motion to make the rule absolute. The cause was argued and submitted in May.

Relator contends (1) his motion for judgment on the pleadings should be sustained because no sufficient return has been filed; (2) the act in question is violative of the constitutions, State and Federal, in that it "attempts to prescribe a summary procedure punishing crimes without providing for indictment, proper information, counsel for the accused, arraignment, bail, jury trial (except on demand), public trial, compulsory process for witnesses;" (3) the act attempts to devest the criminal court of jurisdiction and to establish a new court of record of exclusive jurisdiction in violation of Sections, 1, 22 and 31 of Article 6 of the State Constitution; (4) the act (a) contains more than one subject, and (b) the subject of prosecution for alleged crimes is not expressed in the title as required by the Constitution; (5) the act (a) is broader than the title and contains matter not germane thereto, and (b) "amendments were attempted to be made to then existing statutes without the subject title announcing such contemplated amendments or repeals, and hence in violation of the Constitution."

I. The point made on the sufficiency of the return is based upon the fact that it was filed in the name of the regular judge of the division instead of respondent who had been called in to conduct the proceedings. This question was decided on the motions referred to in the statement, and on the showing then made respondent was permitted to adopt the return filed. The question is no longer in the case.

II. The second contention is that the proceeding is one for the punishment of crime and that the act is invalid because it denies relator the protection of certain constitutional provisions applicable to trials for crime. There is language in the act that gives color to the view that it authorizes trial and punishment for crime. It is obvious that a child on trial for crime with a view to his conviction and punishment for the crime itself, as such, is entitled to invoke all the constitutional provisions applicable in such a situation. If he is old enough to be tried and punished for crime, he cannot be denied constitutional rights as a defendant in a criminal case because he has not attained a particular age. [State ex rel. v. Tincher, 258 Mo. 1, 166 S.W. 1028, et seq.] The act has another aspect in which it is not affected by this rule. Its principal, if not sole, purpose is not trial and punishment for crime, but the protection and support of neglected children and the reformation of delinquent children. It is well settled that in the case of delinquent children the State has the power in proper circumstances to take over their custody in order to insure their security, training and reformation [State ex rel. v. Tincher, supra, and cases cited; In re Sharp, 15 Idaho 120, 18 L. R. A. (N. S.) 886, 96 P. 563, and note; In re Hook, 95 Vt. 497, 115 A. 730.] The power exerted by the State, parens patriae, is asserted in its right to supply proper custody and care in lieu of that of which neglected and delinquent children are deprived. [Farnham v. Pierce, 141 Mass. 203, 6 N.E. 830; Ex parte Ah Peen, 51 Cal. 280; In re Turner, 94 Kan. 115, 145 P. 871, and cases cited.] A proceeding under the act, the aim of which, as in this case, is the exertion of the State's power, parens patriae, for the reformation of a child and not for his punishment under the criminal law, is not a criminal case, and the constitutional guaranties respecting defendants in criminal cases do not apply. This is obviously true and is the rule of the decisions. [In re Sharp, supra, and cases cited; Com. v. Fisher, 213 Pa. 48, 62 A. 198; State v. Brown, 50 Minn. 353, 52 N.W. 935; Pugh v. Bowden, 54 Fla. 302, 45 So. 499; Ex parte Bowers, 78 Ore. 390, 153 P. 412; In re Powell, 6 Okla. Crim. 495, 120 P. 1022 et seq.; Ex parte Januszewski, 196 F. 123; United States ex...