State v. Augustine

• Decision Date: 28 June 1966
• Docket Number: No. 44552,44552
• Citation: 416 P.2d 281,197 Kan. 207
• Parties: STATE of Kansas, Appellant, v. Lonnie AUGUSTINE, William Leikam, and Stanley L. Parker, Appellees.
• Court: Kansas Supreme Court

Page 281

416 P.2d 281

197 Kan. 207

STATE of Kansas, Appellant, v. Lonnie AUGUSTINE, William Leikam, and Stanley L. Parker, Appellees.

No. 44552.

Supreme Court of Kansas.

June 28, 1966.

Syllabus by the Court

1. As related to criminal law and procedure, substantive law is that which declares what acts are crimes and prescribes the punishment therefor; whereas, procedural law is that which provides or regulates the steps by which one who violates a criminal statute is punished.

2. A legislative enactment which enlarges the jurisdictonal age limits of the juvenile court to include sixteen-and seventeen-year-old male persons constitutes a change in the substantive law, and will not be construed as having retroactive application to cases pending on the effective date of the act in the absence of language disclosing a contrary legislative intent.

3. Chapter 278 of the Laws of 1965 relating to the jurisdictional age limits of the juvenile court is examined and held to be prospective in operation and not applicable to actions pending at the time it becomes effective.

Jan G. Banker, County Atty., argued the cause, and Robert C. Londerholm, Atty. Gen., and Richard H. Seaton, Asst. Atty. Gen., were with him on the brief for appellant.

Richard M. Driscoll, Russell, argued the cause, and Charles O. Boyle and Harold W. McCombs, Russell, were with him on the brief for appellees.

O'CONNOR, Justice.

The provisions of chapter 278 of the Laws of 1965 (now appearing as K.S.A. 1965 Supp., 38-802, -806, -808, -815, -816, -826, and -836) enlarged the jurisdictional age limits of the juvenile court. The question presented by this appeal is whether or not the provisions apply retroactively to cases pending on January 1, 1966, the effective date of the act.

The constitutionality of chapter 278 has been challenged and, with the exception of certain provisions of section 6 thereof (now K.S.A.1965 Supp., 38-826), has been sustained in State ex rel. Londerholm v. Owens, 197 Kan. 212, 416 P.2d 259.

The facts giving rise to this appeal are undisputed. The three appellees (hereinafter referred to as defendants) were charged in the county court of Russell county with several counts of second degree burglary and grand larceny in connection therewith alleged to have been committed on various dates during the early part of November 1965. On November 15 the defendants, with court-appointed counsel, waived preliminary hearing and were bound over to the district court. Separate informations were filed against the defendants on December 30. On January 3, 1966, after appointment of counsel, each defendant moved to dismiss the information filed against him and requested that his case be referred to the juvenile court. The cases were consolidated for the hearing of said motions, and it was stipulated by all parties that the defendants were 'over the age of sixteen and under the age of eighteen' at the time the offenses were alleged to have been committed. The district court sustained the separate motions, dismissed the informations, and referred the defendants to the juvenile court for further proceedings. From this ruling the state (hereinafter referred to as plaintiff) has appealed.

In sustaining the defendants' separate motions, the district court obviously acted pursuant to section 4 of chapter 278 (now K.S.A.1965 Supp., 38-815), the pertinent portion of which is as follows:

'(d) If during the pendency of any action, charge or complaint against a person involving a public offense * * * before a * * * judge of the district court * * * it shall be ascertained that such person was under the age of eighteen (18) years at the time of committing the alleged offense, it shall be the duty of such * * * judge to forthwith dismiss such action, charge or complaint, and refer same to the juvenile court * * *.'

It should be noted that under the law in existence at the time the offenses were alleged to have been committed, sixteen-and seventeen-year-old males were not within the exclusive jurisdiction of the juvenile court and thus were subject to prosecution as adults only, unless the provisions of chapter 278 were to have a retroactive application to cases pending on January 1, 1966.

Plaintiff contends that the age of the defendants at the time the offenses were allegedly committed is determinative of whether or not the offenses were acts of delinquency or of crime, and cites in support of its argument State v. Dubray, 121 Kan. 886, 250 P. 316. There a boy sixteen years of age was sentenced by the district court as an adult criminal for statutory rape committed prior to his sixteenth birthday. In holding that the district court was without authority to impose sentence and that disposition of the case fell solely within the province of the juvenile court, this court stated:

'* * * A violation of law, which, if committed by an adult, would be rape, is not a crime if committed by a boy under the age of sixteen years. It is an act of delinquency. Whether an act constitute delinquency or crime is determined by the factor of age. So determined, the character of the act is fixed, remains constant, and, if delinquency, does not enlarge to crime by lapse of time. The juvenile court has exclusive jurisdiction over delinquencies (State v. Dunn, 75 Kan. 799, 90 P. 231; Swehla v. Malone, 114 Kan. 712, 220 P. 299); and the juvenile court does not lose jurisdiction by delay in obtaining personal jurisdiction over the delinquent, whether the delay be occasioned by failure to discover the delinquency, neglect or inability promptly to institute delinquency proceedings, or deliberate postponement of delinquency proceedings with a view of invoking the criminal law.' (Emphasis added.) (121 page 895, 250 P. page 320.)

Although the factual situation in Dubray is converse to that in the instant case, the decision lends merit to plaintiff's argument that if the status of a juvenile cannot be enlarged to that of an adult by mere lapse of time, by the same token neither can an adult revert to a juvenile status.

Defendants strenuously argue that chapter 278 merely constitutes a procedural or remedial change in the law, and, therefore, under the decisions of this court in such cases as Jones v. Garrett, 192 Kan. 109, 386 P.2d 194, and Ellis v. Kroger Grocery Co., 159 Kan. 213, 152 P.2d 860, 155 A.L.R. 546, the new law applies to all cases pending on January 1, 1966.

As related to criminal law...