State ex rel. Wells v. Walker

• Decision Date: 31 December 1930
• Docket Number: No. 30600.,30600.
• Citation: 34 S.W.2d 124
• Parties: THE STATE EX REL. PAUL WELLS v. ALLEN W. WALKER, Judge of Circuit Court.
• Court: Missouri Supreme Court

34 S.W.2d 124

THE STATE EX REL. PAUL WELLS v. ALLEN W. WALKER, Judge of Circuit Court.

No. 30600.

Supreme Court of Missouri, in Banc.

December 31, 1930.

Prohibition.

PROVISIONAL RULE DISCHARGED.

Daniel C. Rogers for relator.

(1) The juvenile division of the circuit court has exclusive jurisdiction over boys under seventeen years of age — at least those who have not been previously adjudicated as delinquent. Laws 1927, pp. 129, 130; Art. 5, Chap. 11, R.S. 1919; Sec. 12426, R.S. 1919; State ex rel. Boyd v. Rutledge, 13 S.W. (2d) 1061; State v. Thomas, 250 Mo. 198. (2) The statutes authorize and direct the application of reformatory measures in the handling of all delinquent children under seventeen years of age. Art. 5, Chap. 11, R.S. 1919; Secs. 12440, 12443, 12444, R.S. 1919; Secs. 12455, 12456, 12457, R.S. 1919; Laws 1921, p. 188, Sec. 1149a; Laws 1921, p. 189, Secs. 1139, 1152a; Laws 1921, p. 192, Sec. 1134a; Laws 1921, pp. 587-589, Secs. 1, 3, 6, 10 and 12. (3) If the juvenile judge deems any child under seventeen years of age who has committed a crime is unfit to be dealt with under the reformatory provisions of the statutes, he may proceed to trial against said child and commit said child under the general law, in the juvenile division, for the commission of the crime. Laws 1927, p. 131; Sec. 12426, R.S. 1919; Laws 1927, pp. 129, 130 (first part); State ex rel. Boyd v. Rutledge, 13 S.W. (2d) 1061. (4) Only in case a child under seventeen years of age has been previously adjudicated a delinquent may a court of general criminal jurisdiction probably proceed to try him for the commission of a crime. Otherwise said court has no jurisdiction. Laws 1927, pp. 129, 130 (second part). But see State ex rel. Boyd v. Rutledge. 13 S.W. (2d) 1061, which suggests that a court of general criminal jurisdiction cannot have jurisdiction even in the case of a child which has been previously adjudicated a delinquent, and which has been charged in said court with the commission of a crime, but must transfer said child to the juvenile division.

Stratton Shartel, Attorney-General, A.B. Lovan, Assistant Attorney-General, and Edward C. Lynch, Prosecuting Attorney, for respondent.

(1) The Rutledge opinion, 13 S.W. (2d) 1061, is not applicable to the case now being presented. First, the delinquent had reached the age of seventeen years before proceedings were started against him. Second, the proceedings were based on a chapter of the statute which does not apply to counties of less than fifty thousand population. The case now before the court arises under a statute applying only to counties having less than fifty thousand population. (2) The Rutledge case had to do with a law which provides for a juvenile court separate and apart form the court having criminal jurisdiction. The present case is under a law which provides that the court trying criminal cases is also the juvenile court. The judge of the criminal court is judge of the juvenile court. (3) The Juvenile Act for counties under fifty thousand nowhere authorizes the imposition of any statutory penalties. The Juvenile Act for St. Louis and counties over fifty thousand does provide such penalties, Sec. 2598, R.S. 1919. (4) The holding in the Rutledge case, namely, that "a court of general criminal jurisdiction is wholly without jurisdiction in cases in which a child under seventeen years of age is charged with the violation of criminal law" was unnecessary to a determination of that case.

WHITE, J.

June 17, 1930, relator presented his petition in this court alleging that he is a minor, fourteen years of age, charged with the crime of burglary in the Circuit Court of Howard County, and that the respondent, A.W. Walker, Judge of the Circuit Court of the Ninth Judicial Circuit, which includes that county, had entered an order to the effect that the relator was not a proper person to be dealt with under the Juvenile Law and granting the State leave to prosecute him under the general law. The petition then alleges that the respondent is without jurisdiction to proceed against the relator, hence the relator prays this court for a writ prohibiting the respondent from proceeding with the trial. In return to the provisional rule issued upon that petition the respondent admits that information was filed in the Circuit Court of Howard County charging the relator with the crime of burglary and that respondent, as judge of the circuit court in that county, made the following order:

"It appearing to the court that he (meaning relator, Paul Wells) is not a proper person to be dealt with under the Juvenile law, State is given leave to prosecute under the general law."

The relator August 23, 1930, filed his motion for judgment upon the pleadings. The case then turns for determination upon the facts stated in the respondent's return.

I. The respondent asserts his right to proceed in the manner contemplated in the order objected to under the statute vesting the circuit courts in counties of less than fifty Controlling thousand inhabitants, with jurisdiction of Juvenile Statutes. Delinquents, Section 1136, Revised Statutes 1919 (Laws 1927, pp. 131-132), as follows:

"Sec. 1136. The Cape Girardeau court of common pleas and all circuit courts in counties less than 50,000 population shall have original jurisdiction of all cases coming within the terms of this article. The proceedings of the court in such cases shall be entered in a book or books kept for that purpose, and known as the juvenile records, and the court shall be known as the Cape Girardeau court of common pleas and the circuit court, and may for convenience be called the juvenile court. The clerk of the Cape Girardeau court of common pleas and the clerk of the circuit court in such counties, shall act as the clerk of the juvenile court. In cases of the absence or inability of the circuit judge to hold said court, he may call in any other circuit judge to perform that duty. In cases arising under this article, the hearing shall be before the court without a jury, and the practice and procedure customary in proceedings in equity shall govern: Provided, that the child shall be given a trial by jury, as now provided in the juvenile court act pertaining to counties of over 50,000 inhabitants, when demanded by the child, its parents or guardian. In the discretion of the judge of the Cape Girardeau court of common pleas and of the circuit court any petition alleging a child to be delinquent may be dismissed and such child prosecuted under the general law when, in the judgment of such judge, such child is not a proper subject to be dealt with under the reformatory provisions of this article."

We put in italics the significant parts. Also an Act of 1927 (Laws 1927, p. 129) as follows:

"Section 1. Child may be prosecuted under general law. — In the discretion of the judge of any court having jurisdiction of delinquent children under the provisions of article 5, chapter 11, Revised Statutes of Missouri, 1919, or under the provisions of article 6, chapter 21, Revised Statutes of Missouri, 1919, any petition alleging a child to be delinquent may be dismissed and such child prosecuted under the general law, and any motion, petition or application, made to any court or judge having general jurisdiction of criminal causes, to transfer the case of or charge against any delinquent child to a court having jurisdiction of delinquent children under the provisions of said articles 5 and 6, may be denied in the discretion of the judge, when in the judgment of the judge such child is not a proper subject to be dealt with under the reformatory provisions of either said article 5 or said article 6."

These two acts passed at the same session, 1927, the first relating to counties of less than 50,000 and the second applying to proceedings in all counties, express the general purpose of the General Assembly. Section 1136, a part of the Act of 1917, vesting the circuit courts in counties of under fifty thousand population with jurisdiction of juvenile cases, was repealed and reenacted by the Act of 1927 (Laws 1927, p. 131), with a provision including the Cape Girardeau Court of Common Pleas and one other significant change; otherwise, it remains substantially the same as it appeared in the Act of 1917.

The provisions of Section 1136, as amended, giving the circuit court jurisdiction and vesting the circuit court with discretion to try one under the age of seventeen under the general law is unequivocal, precise and vests the circuit court involved here with the jurisdiction claimed, unless there are other provisions of the statute which require a contrary conclusion.

II. The relator bases his claim upon the ruling in State ex rel. v. Rutledge, 321 Mo. 1090, 13 S.W. (2d) 1061. That case arose under Article VI, Chapter 21, Revised Statutes 1919, relating to the treatment of delinquent children in counties of Rutledge fifty thousand inhabitants and over. In that article Case. there is no provision similar to those in Section 1136, relating to counties of less than fifty thousand. The holding in the Rutledge case was that if one charged with a crime was "brought into court" when under seventeen years of age, a juvenile court only had jurisdiction of his case and could try it under the provisions of the law relating to juvenile delinquents, or had jurisdiction to try such person as for a crime under the general law. It was held further that Section 1 of the Act of 1927 (pp. 129-130) quoted last above, could apply to cases where one charged with the commission of a crime while under the age of seventeen years "was brought before the court" after he had reached the age of seventeen years, that a court of general criminal jurisdiction would have discretion to entertain a prosecution under the general law. The opinion quotes from Sections 2592, 2591 and 2598 of Article VI, Chapter 21, relating to juvenile courts in counties of fifty thousand or over. [...