State v. Dunn

• Citation: 75 Kan. 799,90 P. 231
• Decision Date: 11 May 1907
• Docket Number: 15,355
• Parties: THE STATE OF KANSAS v. PET DUNN
• Court: United States State Supreme Court of Kansas

90 P. 231

75 Kan. 799

THE STATE OF KANSAS v. PET DUNN

No. 15,355

Supreme Court of Kansas

May 11, 1907

Decided January, 1907.

Appeal from Sedgwick district court; THOMAS C. WILSON, judge.

The cause is reversed and remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. CRIMINAL LAW--Defendant under Sixteen Years of Age--Jurisdiction. The provisions of the act creating the juvenile court deprive the district court of all jurisdiction over a child under the age of sixteen years who is charged with a criminal offense, except to transfer the case to the juvenile court.

2. CRIMINAL LAW--Plea in Abatement--Age of Defendant--Question for the Jury. A plea in abatement in a criminal action in the district court which alleges that the defendant is under the age of sixteen years raises an issue of fact upon which defendant is entitled to have a jury trial.

Fred S Jackson, attorney-general, and John S. Dawson, assistant attorney-general, for The State.

Dale & Amidon, for appellant.

OPINION

PORTER, J.:

The question involved is whether appellant was entitled to a trial by a jury of his plea in abatement, which alleged that he was a minor under the age of sixteen years and therefore only liable to be tried for a criminal offense by the juvenile court.

The original complaint was filed in the city court of Wichita, and charged appellant and two others with the crime of assault and robbery upon the person of one William Sutton. The preliminary examination was waived and defendants held to the district court. After the information was filed, and before any proceedings were had, Pet Dunn filed a plea in abatement, alleging that at the time of the preliminary examination he was only fifteen years of age and that by reason of being a minor under the age of sixteen years the district court had no jurisdiction to try him. A demurrer to the plea having been overruled, the state filed an answer denying the facts. When the plea came on for hearing appellant demanded a jury trial, stating that he had several witnesses present whom he desired examined. The demand for a jury trial was refused, and over appellant's objection the court tried the issue raised by the plea in abatement without a jury, upon affidavits, and found against appellant. After arraignment and plea of not guilty the trial proceeded, and appellant was convicted and sentenced to the state penitentiary for a period of not less than ten years nor more than twenty years. He seeks by this appeal to reverse the judgment of conviction.

The juvenile court was established by chapter 190 of the Laws of 1905. The act makes the probate judge in each county the judge of the juvenile court for such county, and that court is given exclusive jurisdiction of all cases where children under sixteen years of age are charged with criminal offenses. The purpose of the act creating the court is to provide for the care, custody and discipline of neglected and dependent children, and to prevent any child under the age of sixteen years from being sent to the state reformatory or to the state penitentiary. In the case of a delinquent child under the age of sixteen years charged with the violation of any criminal law or city ordinance it is provided that the punishment shall rest in the discretion of the judge of the juvenile court, who is given the power to suspend or remit any sentence imposed. It is expressly provided in section 15 of the act that in no case shall any proceedings, order or judgment of the juvenile court in cases coming within the purview of the act be deemed or held to import a criminal act upon the part of the child. This provision emphasizes the fact that the great underlying motive for establishing the court was to provide for the discipline of wayward children in such a manner that those subjected thereto should thereafter be relieved so far as possible from all taint of crime; and to prevent children who have become neglected and dependent for lack of parental care, and who have violated the criminal laws, from being thrown into association with hardened criminals and thus becoming members of the criminal class. Section 2 provides that "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." Section 11 provides as follows:

"When a child under the age of sixteen years is arrested, with or without a warrant, such child shall, instead of being taken before a justice of the peace or police magistrate or...