State v. Buckner,

• Decision Date: 08 August 1923
• Docket Number: No. 24142.,24142.
• Citation: 300 Mo. 359,254 S.W. 179
• Parties: STATE ex rel. MATACIA v. BUCKNER circuit Judge, et al.
• Court: Missouri Supreme Court

254 S.W. 179

300 Mo. 359

STATE ex rel. MATACIA v. BUCKNER circuit Judge, et al.

No. 24142.

Supreme Court of Missouri, in Banc.

August 8, 1923.

Prohibition by the State, on the relation of Frank Matacia against Thomas 13. Buckner, Judge of the Circuit Court, and another. Preliminary rule dismissed.

Frank Benanto, Harry L. Jacobs, and. Julius C. Shapiro, all of Kansas City, for relator

Griffin & Orr, Seehorn, Barnes & Schwartz, and W. B. Brown, all of Kansas City, for respondents.

JAMES T. BLAIR, J. Prohibition.

Relator is a minor under the age of 17 years, and seeks a writ prohibiting respondent from proceeding under the act of 1911 (Laws 1911, p. 177 et seq.; section 2501, R.S. 1919) pertaining to neglected and delinquent children in counties having a population of 50,0()0 or more.

The proceeding against relator is pending in the division of the circuit of Jackson county which as 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 wan 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 relearn, 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 fling 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 1011. 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 foe' 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 foe 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 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 has not attained a particular age. State ex rel. v. Tincher, 258 Mo. loc. cit. 19 et seq., 166 S. W. 1028, Ann. Cas. 1915D, 696. 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 cases 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, 96 Pac. 563, 18 la H, A. (N. S.) 886, and note, Re Hook, 95 Vt. 497, 115 Atl, 730, 19 A, D. R. 610. The power exerted by the state, parens patriæ, 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. loc. cit. 205, 6 N. E. 830, 55 Am. Rep. 452; Ex parte Ah Feen, 51 Cal. 280; In re Turner, 94 Kan. 115, 145 Pac. 871, Ann. Cas. 1916E, 1022, 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 patriæ, 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, 32 Atl. 198, 5 Ann. Cas. 92; State v. Brown, 50 Minn. 353, 52 N. W. 935, 13 L. R. A. 691, 33 Am. St. Rep. 351; Pugh v. Bowden, 54 Fla. 302, 45 South. 499, 14 Ann. Cas. 816; EX parte Bowers, 78 Ore., loc. cit. 395;¹ In Powell, 3 Okl. Cr. loc. cit. 507 et seq., 120 Pac. 1022; Ex parte Januszewski (C. C.) 103 Fed. 123; U. S. ex rel. v. Behrendsohn (D. C.) 197 Fed. 958; Ex parte Bartee, 73 Tex. Cr. R. loc. cit. 287 et seq., 174 S. W. 1051. In this case the alleged criminal act of relator is not set up as a charge of crime and a predicate of punishment under the criminal law but merely as the thing which brings relator within the definition of "delinquent children" in the act, and shows he is within the class over which the state is authorized to exert its power of quasi parental control. Childress v. State, 133 Tenn. loc. cit. 123, 179 S. W. 343. The informations are so drawn. The proceeding is not transformed into a Prosecution for crime by the mere adoption of practice in criminal cases as far as applicable under the act. The purpose and substance of the act remain as before. Convenient machinery at hand is borrowed by the act to avoid the necessity of setting up independent machinery of its own.

The cases chiefly relied upon by relator are unlike this case, and have been distinguished in cases cited and in Re Ferrier, 103 Ill. 367, 43 Am. Rep. 10; Farnham v. Pierce, 141 Mass. loc. cit. 204, 3 N. B. 830, 55 Am. Rep. 452; Mill v. .Brown, 31 Utah, 473, 88 Pac. 309, 120 Am. St. Rep. 935.

III. The act does not establish a new court. It...