State ex rel. Shartel v. Trimble

• Decision Date: 04 September 1933
• Docket Number: No. 30633.,30633.
• Parties: STATE OF MISSOURI at the Relation of STRATTON SHARTEL, Attorney-General, Relator, v. FRANCIS H. TRIMBLE, EWING C. BLAND and HENRY L. ARNOLD, as Judges of the Kansas City Court of Appeals.
• Court: Missouri Supreme Court

63 S.W.2d 37

STATE OF MISSOURI at the Relation of STRATTON SHARTEL, Attorney-General, Relator, v. FRANCIS H. TRIMBLE, EWING C. BLAND and HENRY L. ARNOLD, as Judges of the Kansas City Court of Appeals.

No. 30633.

Supreme Court of Missouri.

Division Two, September 4, 1933.

Certiorari.

OPINION OF THE COURT OF APPEALS QUASHED.

Stratton Shartel, Attorney-General, Don Purteet, Assistant Attorney-General, James R. Page, J. Frank Flynn and Ira B. McLaughlin for relator.

(1) Evidence of sexual commerce between defendant and prosecutrix, subsequent to the seduction and not remotely removed from said initial defilement, was competent, relevant and material evidence on behalf of the State in this cause: The ruling of said Court of Appeals to the contrary contravened the controlling decisions of this court. Sec. 4011, R.S. 1929; State v. Wallace, 316 Mo. 83, 289 S.W. 871; State ex rel. Dew v. Trimble, 306 Mo. 657, 269 S.W. 622; State v. Stoker, 190 S.W. 294; State v. Howard, 264 Mo. 386, 175 S.W. 58; State v. Young, 90 Mo. 284, 12 S.W. 643; State v. Palmberg, 199 Mo. 248, 97 S.W. 566; State v. Cason, 252 S.W. 688; State v. Guye, 299 Mo. 348, 252 S.W. 955; State v. Bullington, 274 S.W. 18; State v. Drummins, 204 S.W. 276, 274 Mo. 632; State v. Mitchell, 229 Mo. 683, 129 S.W. 917; State v. Thornton, 108 Mo. 640, 18 S.W. 841; State v. Brandenburg, 118 Mo. 181, 23 S.W. 1080; State v. Reed, 153 Mo. 451, 55 S.W. 74; State v. Meals, 184 Mo. 244, 83 S.W. 442; State v. Sublett, 191 Mo. 163, 90 S.W. 374; State v. Fogg, 206 Mo. 696, 105 S.W. 618; State v. Stemmons, 275 Mo. 544, 205 S.W. 8; State v. Stokes, 288 Mo. 539, 232 S.W. 106; State v. Bobbitt, 270 S.W. 378; State v. Hinds, 14 S.W. (2d) 559; State v. Reeves, 97 Mo. 668, 10 S.W. 842; State v. Long, 238 Mo. 383, 141 S.W. 1100; State v. Bruton, 253 Mo. 361, 161 S.W. 752; State v. Howard, 264 Mo. 386, 175 S.W. 58; State v. Schamel, 177 S.W. 351; State v. Evans, 267 Mo. 163, 183 S.W. 1061; State v. Campbell, 22 S.W. (2d) 645; State v. Henderson, 243 Mo. 503, 147 S.W. 480; State v. Reed, 237 Mo. 224, 140 S.W. 909; State v. Letz, 294 Mo. 333, 242 S.W. 681; Secs. 3999, 4012, R.S. 1929; State v. Loness, 238 S.W. 114; State v. Summar, 143 Mo. 220, 45 S.W. 257; State v. Sherman, 264 Mo. 374, 175 S.W. 75; State v. Gruber, 285 S.W. 428.

Ralph S. Latshaw, Jr., and James H. Anderson for respondents.

(1) The Kansas City Court of Appeals did not have jurisdiction of this appeal and should have transferred the same to the Supreme Court of Missouri. We refer to our motion to certify and transfer this appeal to this court, duly and timely filed in the Kansas City Court of Appeals, and we also refer to our brief, paragraph 3, where we set out all of our authorities and the reasons for the transfer. In support of our position, we wish to add to those authorities the cases of State ex rel. Wells v. Walker, 34 S.W. (2d) 124, Ex parte Bass, 40 S.W. (2d) 457. In the case of State ex rel. Allen v. Trimble, 297 S.W. 378, 307 S.W. 751, this court held that the jurisdiction of the Court of Appeals must be determined on certiorari. To the same effect is State ex rel. Commonwealth Trust Co. v. Reynolds, 213 S.W. 804, 278 Mo. 695; State ex rel. Wells v. Walker, 34 S.W. (2d) 133. (2) Evidence of rape and other sexual commerce between defendant and prosecutrix subsequent to the seduction was incompetent, irrelevant, prejudicial, erroneous, and immaterial evidence on behalf of the State in this cause: the ruling of said Court of Appeals was not contrary and did not contravene any of the controlling decisions of this court.

WESTHUES, C.

This is a certiorari proceeding whereby relator seeks to quash an opinion of the Kansas City Court of Appeals in the case of State v. Charles Edward Witt, number 16,825, not yet published. The reason assigned is that the opinion of the Court of Appeals contravenes certain controlling decisions of this court.

From the opinion of the Court of Appeals we learn that the defendant. Witt, was proceeded against in the juvenile court at Kansas City, Missouri. The probation officer filed an information against Witt alleging that he was under the age of seventeen years. It further alleged or charged that Witt was a delinquent child within the meaning of the law; that he had committed the crime of seduction and that he was guilty of the crime of rape. The count charging rape was dismissed. No preliminary hearing was granted. A trial before a jury in the juvenile court resulted in a verdict of guilty as charged in the information. Thereupon the juvenile court, or judge, entered a judgment finding that Witt was a delinquent child within the meaning of the law and imposed a sentence of four years' confinement in the Missouri Reformatory at Boonville, Missouri.

From this sentence Witt asked that he be granted an appeal to the Supreme Court. The trial court, however, granted the appeal to the Kansas City Court of Appeals, which court assumed jurisdiction of the case and reversed and remanded it for a new trial. The Court of Appeals, by its opinion, held that the juvenile court erroneously admitted evidence of sexual intercourse between defendant and the prosecuting witness, alleged to have occurred after the date of the act charged in the information. It is this holding that relator contends to be in conflict with controlling decisions of this court. Respondents, judges of the Court of Appeals, are represented in this court by counsel who represented Witt in the Court of Appeals. He has briefed the case for respondents and while he is satisfied with that part of the opinion reversing and remanding the case for a new trial, he contends here, as he did in the Court of Appeals, that his client, Witt, had been convicted of a felony and, therefore, the Supreme Court and not the Court of Appeals had appellate jurisdiction of the case. As authority for this contention counsel cites State ex rel. v. Tincher, 166 S.W. 1028, 258 Mo. 1; State ex rel. v. Porterfield, 264 S.W. 386; State ex rel. v. Walker, 326 Mo. 1233, 34 S.W. (2d) 124; Ex parte Bass, 328 Mo. 195, 40 S.W. (2d) 457, and other cases. These cases are not in point. The case of State ex rel. v. Tincher was a mandamus proceeding. The Porterfield and Walker cases were proceedings in prohibition, and Ex parte Bass was a habeas corpus proceeding. This court's jurisdiction of these cases did not depend upon the Juvenile Law but upon the law giving this court original jurisdiction to grant the extraordinary writ.

[1] The only theory upon which this court would have appellate jurisdiction of this case is that the act charged by the information of the probation officer against Witt, which is alleged to have rendered him a delinquent child, was a felony. If it can be said that defendant was convicted of a felony by the proceedings against him in the juvenile court then the whole proceeding was null and void. [State ex rel. v. Walker and Ex parte Bass, supra.] Prosecutions for felony can only be instituted by information of the prosecuting attorney after a preliminary hearing has been had, or by an indictment of a grand jury.

[2] The Juvenile Act, Article 8, Chapter 125, Revised Statutes 1929, is a complete law within itself, dealing with minors under the age of seventeen years. The purpose of the Juvenile Law is not to convict minors of criminal acts, but to safeguard and reform children that may have erred and have been declared delinquent and to provide for children that may be declared neglected. For a full discussion of the purposes of Juvenile Laws see Ex parte Januszewski, 196 Fed. 123; 31 Corpus Juris, 1101, section 226. The Juvenile Act authorizes the juvenile judge, if he deems that a child is not a fit subject to be dealt with in the juvenile court, to dismiss the proceedings and order the child to be prosecuted under the general law. [Sec. 14163, R.S. 1929.] A minor under the age of seventeen years cannot be convicted of a crime in a proceeding in a juvenile court, as the term conviction is understood in law. [State ex rel. v. Walker and Ex parte Bass. supra; State v. Naylor, 328 Mo. 335, 40 S.W. (2d) l.c. 1082 (6).] The juvenile court can only adjudge a child a neglected child or a delinquent child. The two terms have a distinct and separate meaning under the Juvenile Act. A child may be of good character and yet, through no fault of its own, be declared a neglected child. [3] A delinquent child means one who has been guilty of violations of the law or is incorrigible, vicious or immoral. [Sec. 14136, R.S. 1929; Ex parte Naccarat, 328 Mo. 722, 41 S.W. (2d) 176.] If a child is proceeded against as a delinquent the final judgment of the juvenile court, if against the child, can only be a judgment declaring it to be delinquent. It is immaterial whether the misconduct charged against the child, by the information, consists of violations of the criminal statutes or of conduct, though not violations of the law, which nevertheless renders the child incorrigible, vicious or immoral. In either case the judgment must be that the child is a delinquent. The juvenile court then has the authority to place the minor on probation or in some institution other than the penitentiary. [Sec. 14151, R.S. 1929; Ex parte Bass. supra; 31 C.J., p. 1111, sec. 245.]

[4] Section 14137 provides that the procedure governing the conduct of criminal cases shall be followed in those cases in the juvenile courts where a child is charged with acts that are violations of the criminal statutes. It also provides that a trial by jury may be had. This, however, is not mandatory except when demanded. In all other cases trial by jury is not authorized. The provisions of the above section do not transform the case into a criminal prosecution, but only prescribe the manner in which the trial should be conducted, as was said by this court in State ex rel. v. Buckner, 254 S.W. 182 (9, 11), 300 Mo. 359:

"The charge is that he is a delinquent child, and the proof of it...