State v. Drury

• Decision Date: 22 April 1914
• Citation: 139 P. 1129,25 Idaho 787
• Parties: STATE, Respondent, v. JOHN DRURY, Appellant
• Court: Idaho Supreme Court

139 P. 1129

25 Idaho 787

STATE, Respondent, v. JOHN DRURY, Appellant

Supreme Court of Idaho

April 22, 1914

JUVENILE DELINQUENCY-ENCOURAGING OR CONTRIBUTING TO-STATUTORY CONSTRUCTION - MISDEMEANOR - CONVICTION FOR-APPEAL-TRIAL DE NOVO-COMPLAINT-SUFFICIENCY OF.

1. By the provisions of sec. 159, chap. 159, Laws 1911, p. 545, any person who by any act encourages, causes or contributes to the delinquency of a child under eighteen years of age is guilty of a misdemeanor, and upon conviction may be fined not to exceed $300 or imprisoned in the county jail for a period not exceeding six months, or may be punished by both such fine and imprisonment.

2. Under the provisions of sec. 21, art. 5, of the state constitution, probate courts are given concurrent jurisdiction with justices of the peace in criminal cases and sec. 3854, Rev. Codes, defines over what misdemeanors justices' courts are given jurisdiction.

3. By the provisions of sec. 4320, Rev. Codes, a defendant may appeal to the district court of the county from any judgment of conviction rendered in a criminal action by a probate or justice's court.

4. Sec 8325, Rev. Codes, provides that on such appeals the case must be tried anew in the district court.

5. The provisions of sec. 165 of said juvenile act relate only to orders or final judgments made by a probate court sitting as a juvenile court, and are not applicable to cases where adults are prosecuted for the misdemeanor defined in sec. 159 of said act.

6. Held, that the probate court has not exclusive jurisdiction to try persons charged with the misdemeanor defined in said sec. 159, and that on an appeal from a judgment of conviction the defendant is entitled to a trial de novo in the district court.

7. The complaint held sufficient.

APPEAL from the District Court of the Second Judicial District, in and for Latah County. Hon. Edgar C. Steele, Judge.

The defendant was convicted of the crime of contributing to the delinquency of a juvenile person and on appeal to the district court he was denied a trial de novo and the judgment of the probate court was affirmed. Reversed.

Reversed and remanded with directions.

Forney & Moore, for Appellant.

If sec 165 and sec. 173 of act of March 7, 1911, entitled "An act providing a code of laws on education for the public school system of Idaho," relate to sec. 159 of said act, they are unconstitutional. (Secs. 21 and 26, art. 5, Idaho Const.; People v. Maxon, 1 Idaho 330; Dewey v. Schreiber Implement Co., 12 Idaho 280, 85 P. 921.)

Sec. 165 of said act relates only to orders or final judgments made by any probate court, sitting as a juvenile court, and which affect any delinquent child, any juvenile delinquent person, or a juvenile disorderly person, and does not apply to adults affected by any such order made in any such proceedings. (Ex parte Sharp, 15 Idaho 120, 96 P. 563, 18 L. R. A., N. S., 886; Mill v. Brown, 31 Utah 473, 120 Am. St. 935, 88 P. 609.)

The complaint filed in the probate court, attempting to charge the defendant with the crime of contributing to and encouraging the delinquency of one Delia Feeney, is insufficient. (Sec. 7679, Rev. Codes; People v. Pierro, 17 Cal.App. 741, 121 P. 689; Edington v. Court, 18 Cal.App. 739, 124 P. 450, 128 P. 338; Ex parte Goldsworthy, 22 Cal.App. 354, 134 P. 352.)

John Nisbet and J. H. Peterson, Attorney General, for Respondent.

The legislature has the authority to limit the right of appeal in criminal cases from probate courts. (In re Sharp, 15 Idaho 120, 96 P. 563, 18 L. R. A., N. S., 886.)

The law is designed to guard against children becoming delinquents, rather than to punish those who contribute to their delinquency after that fact has been determined. (State v. Dunn, 53 Ore. 304, 99 P. 278, 100 P. 258.)

SULLIVAN, J. Ailshie, C. J., concurs.

OPINION

SULLIVAN, J.

This is an appeal from the district court of the second judicial district in and for Latah county, affirming the judgment of the probate court of that county, wherein and whereby the defendant was found guilty of the crime of contributing to the delinquency of a juvenile person, to wit, one Delia Feeney, and upon such conviction was sentenced to a term of sixty days' imprisonment in the county jail of said county. An appeal was taken from the judgment of said probate court to said district court by the defendant. When the matter came on for hearing in the district court, the county attorney filed a motion or request that the defendant be allowed to present all questions of law pertaining to said case on said appeal and that he be not given a trial de novo, which request or motion was granted by the court, and the defendant was denied a trial de novo in the district court.

The case was then presented upon questions of law to the district court and thereafter a judgment was entered affirming the judgment and sentence of the probate court. This appeal is from that judgment.

The errors assigned go to the sufficiency of the complaint and the action of the court in denying the defendant a trial de novo.

The action against the appellant was instituted under the provisions of sec. 159 of chap. 159 (Laws 1911, p. 545), by a complaint filed by the county attorney. Said section is as follows:

"In all cases where any child shall be a delinquent child, a juvenile delinquent person, or a juvenile disorderly person, as defined by this act, the parent or parents, legal guardian, or person having the custody of such child, or any other person responsible for, or by any act encouraging, causing or contributing to the delinquency of such child, shall be guilty of a misdemeanor, and upon trial and conviction thereof shall be fined in a sum not to exceed three hundred dollars ($ 300), or imprisonment in the county jail for a period of not exceeding six months, or shall suffer both fine and imprisonment. The court may impose conditions upon any person found guilty under this act, and so long as such person shall comply therewith to the satisfaction of the court, the sentence imposed may be suspended."

The charging part of the information is as follows:

"That the said John Drury, on or about the 15th or 16th day of February, A. D. 1913, in the county of Latah, state of Idaho, then and there being, did then and there wilfully and unlawfully contribute to and encourage the delinquency of one Delia Feeney, by then and there permitting and encouraging the said Delia Feeney to use and occupy, for the purpose of having other persons to have sexual intercourse with her, a certain building in the village of Deary, Latah county, state of Idaho, known as 'Grannis & Drury's Pool Hall,' and which said building was then and there in his charge and was then and there a public place, and the said Delia Feeney being then and there a juvenile delinquent person and delinquent child."

It is contended by counsel for appellant that defendant was prosecuted and found guilty of the crime of a misdemeanor and that such crime is clearly within the criminal jurisdiction of the courts of justices of the peace and the probate courts. It is declared in said sec. 159 that one guilty of the acts charged therein "shall be guilty of a misdemeanor and upon trial and conviction thereof shall be fined in a sum not to exceed three hundred dollars ($ 300), or imprisonment in the county jail for a period of not exceeding six months, or shall suffer both fine and imprisonment."

Under the provisions of sec. 21, art. 5, of the state constitution, probate courts are given concurrent jurisdiction with justices of the peace in criminal cases, and by the provisions of sec. 3854, Rev. Codes, justices' courts are given jurisdiction of all misdemeanors punishable by fine not exceeding $ 300 or imprisonment in the county jail not exceeding six months or by both such fine and imprisonment.

It will be observed that by the provisions of said sec. 159, the same penalty is provided for the misdemeanor therein mentioned as for misdemeanors of which the justices' courts have jurisdiction and of which the probate court is given concurrent jurisdiction by the provisions of sec. 3841, Rev. Codes. Sec. 4320, Rev. Codes, provides that a defendant may appeal to the district court of the county from any judgment of conviction rendered in a criminal action by a probate or justice's court, and sec. 8325, Rev. Codes, provides that the clerk of the district court must file the papers in such appealed cases and enter the action on the calendar in its order with other criminal cases, "and the same must be tried anew in the district court at the next term thereof unless for good cause the same be continued."

It is clear that if the misdemeanor of which the defendant was convicted is included within the misdemeanors over which justices' courts have jurisdiction, then on an appeal from a judgment of conviction the defendant has a right to a new trial, or a trial de novo, unless the legislature had the power and authority to prohibit in such cases a trial de novo on such appeals.

It is contended on behalf of the state that the legislature had such power and exercised that power by the adoption of sec. 165 of said act, which provides that "All orders or final judgments made by any probate court or judge thereof under this chapter may be reviewed upon questions of law only." It was evidently under the provisions of that section that the district court denied the appellant a trial de novo and confined his appeal to questions of law.

Sec 173 of said act provides, among other things, as follows: "All offenses under this act shall be prosecuted in the probate court," and it is contended by counsel for appellant that if said section 165 prohibits the trial of a misdemeanor anew on appeal, said provisions...