State v. Dubray

• Decision Date: 06 November 1926
• Docket Number: 27,150
• Citation: 121 Kan. 886,250 P. 316
• Parties: THE STATE OF KANSAS, Appellee, v. LAWRENCE DUBRAY, Appellant
• Court: Kansas Supreme Court

250 P. 316

121 Kan. 886

THE STATE OF KANSAS, Appellee, v. LAWRENCE DUBRAY, Appellant

No. 27,150

Supreme Court of Kansas

November 6, 1926

Decided July, 1926.

Appeal from Crawford district court, division No. 1; DANIEL H WOOLLEY, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

JUVENILE DELINQUENTS--Trial and Commitment--Jurisdiction of Courts. On September 28 a boy who became sixteen years old on June 3 was arrested for statutory rape committed on May 27, all in the same year, and was brought before a justice of the peace. At a preliminary examination the boy's age was disclosed, and the justice of the peace transferred the case to the juvenile court. The juvenile court referred the case to the district court for trial, a jury impaneled by the district court found the boy guilty, and the district court sentenced him on the verdict to the reformatory. Held, the district court had no jurisdiction to pronounce sentence on the verdict.

Arthur Fuller, of Pittsburg, for the appellant.

Charles B. Griffith, attorney-general, Roland Boynton, assistant attorney-general, and Ray H. Preyer, county attorney, for the appellee.

OPINION

BURCH, J.:

This appeal was taken to determine validity of sentence of a boy over sixteen years of age to the reformatory, by the district court, on a verdict of guilty of an act of delinquency committed before the boy was sixteen years old, which if committed by an adult would be a felony.

Lawrence Dubray was born on June 3, 1909. The verdict was that he was guilty of statutory rape committed on May 27, 1925. On September 28, 1925, complaint was made before a justice of the peace, and a warrant of arrest was issued. On the same day the boy was arrested, and was taken before the justice of the peace for preliminary examination, in accordance with the procedure in felony cases. At the preliminary examination, held on October 8, 1925, his age was disclosed. The justice of the peace held he had no jurisdiction to proceed further, and transferred the case to the juvenile court. On January 2, 1926, the judge of the juvenile court sent the case to the district court for disposition according to law. The subsequent proceedings in the district court, including trial, verdict and sentence, conformed to the mode in felony cases. Authority of the district court to impose sentence on the verdict was duly challenged. Validity of the sentence depends on the meaning of the act of March 18, 1905, entitled "An act to establish a juvenile court and provide for the care of dependent, neglected and delinquent children." (Laws 1905, ch. 190; R. S. 38-401 to 38-415.)

As early as 1881 the legislature differentiated the disciplinary treatment which boys under the age of sixteen, convicted of crime punishable by imprisonment, should receive, from the punishment accorded criminals generally, by establishing the state industrial school for boys, and authorizing the courts, at their discretion, to sentence to that institution. (Laws 1881, ch. 129; R. S. ch. 76, art. 21.) In 1889 a similar institution was provided for girls. In 1901 the state industrial reformatory was established, and males between the ages of sixteen and twenty-five, convicted of offenses punishable by imprisonment in the penitentiary, might be sentenced to the reformatory. (Laws 1901, ch. 355, R. S. ch. 76, art. 23.) The industrial-school acts were based on the principle, then gaining recognition, that the child offender should not be classified as a criminal. The reformatory act established a penal institution in which young offenders might be segregated, and discipline appropriate to their personalities might be administered.

In 1899 the parent juvenile-court law was enacted by the state of Illinois, under the title, "An act to regulate the treatment and control of dependent, neglected and delinquent children." (Laws 1899, p. 131.) This statute, amended in 1901, furnished a model for legislation of other states enacted in deference to the juvenile-court principle. Subsequent to 1899 and previous to 1905, juvenile-court statutes were enacted in Wisconsin (Laws 1901, ch. 90; Laws 1903, ch. 97); Ohio (Laws 1902, p. 785; Laws 1904, p. 561); Colorado (Laws 1903, ch. 85 and ch. 86); Indiana (Laws 1903, ch. 237); New Jersey (Laws 1903, ch. 219); Pennsylvania (Laws 1903, No. 205); Iowa (Laws 1904, ch. 11). These statutes differed from the Illinois prototype and from each other. When the Kansas legislature was framing its juvenile-court law it had before it these enactments. It drew freely upon them, but in its final form the statute differed from each of its predecessors in important particulars. Points of resemblance and difference serve to bring out the meaning of those provisions of the Kansas law material to the present controversy.

The juvenile-court act established in each county of the state a court to be known as the juvenile court, whose jurisdiction pertains to the care of dependent, neglected and delinquent children. The probate judge is the judge of the juvenile court of his county, and the court has jurisdiction of all cases concerning dependent, neglected and delinquent children in the county. (R. S. 38-401.) The act contains the following definition: "The words 'delinquent child' shall include any child under the age of sixteen years who violates any law of this state or any city, town or village ordinance; or . . ." (R. S. 38-402.) The act provides for appointment of probation officers (R. S. 38-403), and for initiation of delinquency proceedings by petition and summons (R. S. 38-404 and 38-405). When a child under the age of sixteen years is arrested for an offense punishable under the criminal law, he shall not be taken before a justice of the peace, police magistrate, or judge of any other court having jurisdiction of the offense, but shall be taken before the juvenile court; and if the child has been taken before a justice of the peace, police magistrate, or judge of other court, the case must be transferred to the juvenile court, which shall then proceed as if the case had been commenced in the usual manner. (R. S. 38-411.) The court is open at all times for the transaction of business, and it proceeds in a summary manner. The hearing of any case may be continued from time to time, and the court may make provision for custody of the child pending hearing and final disposition. This custody may be parental in character. R. S. 38-406 provides as follows:

"Pending a hearing, no child shall be committed to a jail or police station, except, in case of felony, the judge, if he deems it advisable, may commit said child to jail until the trial and final disposition of the case; but when other provision shall not have been made for its care and custody, the court shall direct it to be kept in some suitable place provided by the county outside of a jail or police station."

On final disposition of the case, the court may commit a delinquent child to the care and control of a probation officer, or may allow it to remain in its own home subject to visitation, or may authorize it to be placed in a suitable family home, or may authorize it to be boarded out in some suitable family home, or may commit it to a suitable institution for the care of delinquent children, or to some duly accredited institution, or to some discreet person. The statute, however, contains the following:

"Provided, That no child under the age of sixteen years shall be committed to the state reformatory, and in no case shall a child be committed beyond his or her minority." (R. S. 38-409.)

An appeal lies to the district court from a final order of commitment made by the juvenile court, and on a final hearing in the district court the case is disposed of in the spirit of the act and by exercise of the power and discretion lodged in the juvenile court. (R. S. 38-412.)

The act contains the following provisions:

"In all cases of felony, the judge of the juvenile court may remand the person apprehended to the district or county court for trial." (R. S. 38-412.)

"All punishments and penalties imposed by law upon persons for the commission of offenses against the laws of the state, or imposed by city ordinances for the violation of such ordinances in the case of delinquent children under the age of sixteen years, shall rest in the discretion of the judge of the juvenile court, and execution of any sentence may be suspended or remitted by said court." (R. S. 38-414.)

"This act shall be liberally construed, to the end that its purposes may be carried out, to wit, that the care, custody and discipline of a child shall approximate, as nearly as may be, proper parental care; and in all cases where the same can be properly done, that a child may be placed in an approved family home, by legal adoption or otherwise. And in no case shall any proceedings, order or judgment of the juvenile court, in cases coming within the purview of this act, be deemed or held to import a criminal act on the part of any child; but all proceedings, orders and judgments shall be deemed to have been taken and done in the exercise of the parental power of the state." (R. S. 38-415.)

In the states of Colorado, Illinois, Iowa and Ohio delinquency was defined to include violation of any state law; but in Iowa the juvenile court act did not apply to children under the age of sixteen years charged with commission of offenses punishable under the criminal law with death or life imprisonment.

In Illinois the circuit and county courts were given jurisdiction of all delinquencies, without distinction between a violation which, if committed by an adult, would constitute felony, and a violation which would constitute misdemeanor. Section 9 of the act of 1899 provided...