State v. Eychaner.

• Decision Date: 15 November 1937
• Docket Number: No. 4278.,4278.
• Citation: 73 P.2d 805,41 N.M. 677
• Parties: STATEv.EYCHANER.
• Court: New Mexico Supreme Court

41 N.M. 677

73 P.2d 805

STATE

v.EYCHANER.

No. 4278.

Supreme Court of New Mexico.

Nov. 15, 1937.

Appeal from Juvenile Court, Otero County; Numa C. Frenger, Judge.

W. H. Eychaner was convicted of committing certain acts tending to cause or encourage delinquency of two minor females, and he appeals.

Appeal dismissed.

Appeals being statutory, Supreme Court is without jurisdiction to review juvenile court judgment of conviction for contributing to juvenile delinquency on direct appeal therefrom in absence of valid statute conferring right of appeal. Comp.St.1929, §§ 35-4110, 35-4114; Const. art. 6, § 2.

George A. Shipley, of Alamogordo, for appellant.

Frank H. Patton, Atty. Gen., and Fred J. Federici, Asst. Atty. Gen., for the State.

SADLER, Justice.

The defendant was convicted before the juvenile court of Otero county, under 1929 Comp. § 35-4110, of committing certain acts tending to cause or encourage juvenile delinquency of two minor females under the ages of eighteen years, to wit, of the ages of eight and six years, respectively. The acts were shown to have been committed on or about March 7, 1936. The defendant prosecutes this appeal for a review of the sentence pronounced upon him.

[1] Although not raised by the parties, a question of our jurisdiction to entertain this appeal has suggested itself. Of course, when a question involving jurisdiction of the subject-matter arises, whether raised by the parties or sensed by the court, the first duty is to pause, consider, and determine the matter before approaching the merits. Davidson v. Enfield, 35 N.M. 580, 3 P.2d 979. Entertaining doubt and being without assistance from counsel on the question, it was presented to them with a request that each file a brief presenting his views and argument thereon. Such briefs were duly filed and the point is now before us for decision.

[2] Briefly put, the question is: The juvenile court being a court inferior to the district court, does an appeal lie directly from that court to the supreme court? The considerations prompting the inquiry will be presently stated. Both counsel seem to agree that if the 1921 amendment (L. 1921, c. 87) to the juvenile court act is constitutional, there is no right of appeal in this case. The defendant, however, challenges constitutionality of the 1921 act on several grounds.

Now, as to the jurisdictional question: Article 6, § 1, of our Constitution provides: “The judicial power of the state shall be vested in the senate, *** a supreme court, district courts, probate courts, justices of the peace, and such courts inferior to the district courts as may be established by law from time to time *** including juvenile courts.”

Section 2 of said article provides: “The appellate jurisdiction of the supreme court shall be coextensive with the state, and shall extend to all final judgments and decisions of the district courts, and said court shall have such appellate jurisdiction of interlocutory orders and decisions of the district courts as may be conferred by law.” (Italics ours.)

If the doctrine found in the old Latin maxim, expressio unius est exclusio alterius, be applicable, and we think it is, the Legislature could not in the face of article 6, § 2, provide for an appeal directly to the Supreme Court from judgments of the probate court and justices of the peace. The correctness of this conclusion is supported by the provisions of article 6, § 13, reading: “The district court shall have *** appellate jurisdiction of all cases originating in inferior courts and tribunals in their respective districts.” (Italics ours.)

Any effort by the Legislature to provide for appeals directly to the Supreme Court from judgments of courts inferior to the district court would seem to circumvent the provisions of article 6, § 13. In enacting the juvenile court act, the Legislature has purported to proceed in accordance with article 6, § 1, by establishing “courts inferior to the district court *** including juvenile courts.” (Italics ours.)

In State v. Florez, 36 N.M. 80, 8 P.2d 786, we held that section 35-4114, here relied on as conferring a right of appeal, applied only to persons convicted of contributing to juvenile delinquency. The constitutionality of the statute as authorizing an appeal directly to this court was not involved or considered.

Our conclusion is that in so far as section 35-4114 applied to the juvenile court act (Laws 1917, c. 4) as amended by L.1921, c. 87, purports to confer a right of appeal directly from the juvenile court to this court, if it does, it violates the provisions of the Constitution hereinabove mentioned and is accordingly invalid.

[3] In this connection it should be said that, when enacted, 1929 Comp. § 35-4114 (L.1917, c. 4, § 14), did not purport to grant an appeal directly to the Supreme Court from an inferior court. Both parties agree in the correct conclusion that L.1917, c. 4, does not create nor intend to create the juvenile court as a separate tribunal inferior to the district court. Instead it expressly gave to the district court in each county exclusive original jurisdiction over juvenile delinquents and over those contributing to juvenile delinquency as well as over all matters arising under said act. L.1917, c. 4, § 2. An appeal was then authorized from all final judgments rendered under the provisions of section 10 of the act (convictions of contributing to juvenile delinquency) “in the same manner as other final judgments from the district court.” (Italics ours.) L.1917, c. 4, § 14; (§ 35-4114.)

Clearly this provided for an appeal from a judgment of the district court. It is only in an attempted application of the appeal section of the 1917 act to the situation appearing after the amendment of 1921 that defendant finds any basis for even claiming that a right of appeal exists or was intended. Perhaps the Legislature, forgetful for the moment that it was creating the juvenile court as a court inferior to the district court, thought the appeal section might still serve its original purpose. If so, the conclusion was erroneous for the reasons above stated. On the other hand, it may deliberately have chosen to provide no appeal, merely failing through inadvertence to repeal the appeal section in clarification of such intention. Whatever the fact, the legal effect is that no appeal exists from the judgment complained of. Hence, we are without right to grant the review here sought unless error in such conclusion is established by consideration of the constitutional questions raised, if we have any right to consider them.

[4] Defendant's counsel challenges the correctness of such conclusion by questioning on various grounds the constitutionality of L.1921, c. 87. We are asked so to declare; find the amendment of 1921 creating the juvenile court invalid; then indulge the assumption that, being without power to sit as a juvenile court, the proceeding must have been conducted under L.1917, c. 4, by the district court, juvenile division. Thus, having been brought by a devious route into the district court, an appeal lies under the express language of section 35-4114 (L. 1917, c. 4, § 14).

In his first approach to the subject, defendant's counsel suggests, if he does not seriously argue, that this prosecution was actually tried by the district court of Otero county rather than by the juvenile court of said county. The suggestion rests on the fact that in some instances in the transcript the term “district court” instead of “juvenile court” is employed, as where the court reporter certified the bill of exceptions as reporter of the district court, the signature of the judge to bill of exceptions as district judge, etc. This inadvertent use of an improper title cannot overcome the obvious fact that the case was tried before the juvenile court. The complaint was so captioned and the judgment was signed by the judge of the juvenile court as such. Under the express terms of the 1921 act, the district court had no jurisdiction to try the case, whereas the juvenile court had exclusive jurisdiction so to do. The record abounds with proof that the case was being tried by the juvenile, and not by the district, court.

The effort to characterize this trial as one occurring before the district court of Otero county rests upon the fortuitous circumstance that the district judges are made judges of the juvenile courts. The weakness of the contention is exposed when we suppose someone other than the district judge to be sitting as judge of the juvenile court. No one would contend in such circumstances that, because of some agreed invalidity denying even the existence of the juvenile court, the case must be deemed to have been tried by the district court whose jurisdiction had never been invoked. If it be kept clearly in mind that officially the district judge and the juvenile judge are as separate and distinct in capacity and identity as if the two offices were filled by different individuals, the fallacy of an attempt to place this trial and judgment in the district court at once appears.

The Attorney General plausibly argues that this is not a proper proceeding in which to raise or pass upon the constitutional questions presented by defendant's counsel. Planting himself on the safe premise that the Legislature has an express grant of authority under the Constitution to create the juvenile court as a court inferior to the district court, he argues that the first part of the 1921 act (Comp.Laws 1929, § 35-4102) providing that “there is hereby established in each county of this state a court to be known as the ‘juvenile court of - county, New Mexico,”’ is not open to successful constitutional challenge; that there is thus created a de jure court, certainly a de...