State v. Kirby

• Decision Date: 02 July 1914
• Docket Number: No. 18085.,18085.
• Citation: 260 Mo. 120,168 S.W. 746
• Parties: STATE ex rel. KELLEY v. KIRBY, Judge of Juvenile Court.
• Court: Missouri Supreme Court

168 S.W. 746

260 Mo. 120

STATE ex rel. KELLEY v. KIRBY, Judge of Juvenile Court.

No. 18085.

Supreme Court of Missouri.

July 2, 1914.

1. CONSTITUTIONAL LAW (§ 46) — CONSTITUTIONAL QUESTIONS — NECESSITY OF DETERMINATION.

Where, in a prohibition proceeding to restrain a juvenile court from trying the relator for murder, on the ground that it had no jurisdiction, and that the statute creating such court was unconstitutional, the judge of such court filed a return alleging his designation as judge of such court, that, if not permanently prohibited, it was his intention to proceed with the trial of relator in all respects as though it were held in the division of the circuit court having jurisdiction over criminal cases which would be presided over by the same judge, and that he made no contention as to the constitutionality of the act, but submitted such question to the court for decision, and relator did not join issue on the return by demurrer, motion for judgment on the pleadings, or otherwise, the proceeding was not in such a condition as to require the court to pass upon the constitutional questions sought to be raised, and the alternative writ would be quashed, especially as it appeared from the return that the relator would be deprived of no right or privilege granted by the Constitution and statutes of the state by being tried in the juvenile court.

2. CONSTITUTIONAL LAW (§ 48) — STATUTES — DETERMINATION OF VALIDITY — PRESUMPTION OF VALIDITY.

An attack upon the constitutionality of a statute will not be sustained, if there is any reasonable theory upon which the act may be constitutionally upheld.

3. INDICTMENT AND INFORMATION (§ 108) — STATUTORY OFFENSES — REFERENCE TO STATUTES.

The only statute on the subject of the reformation of neglected and delinquent children by judicial procedure now in force is the act of April 11, 1911 (Laws 1911, p. 177), the earlier acts having been expressly repealed, and the act of 1913 (Laws 1913, p. 148) having been declared unconstitutional; and hence an information in the juvenile court should have referred to the act of 1911, instead of the act of 1909 (Laws 1909, p. 431, § 25).

In Banc. Prohibition by the State, on relation of Morris Kelley, against Guy D. Kirby, Judge of the Juvenile Court of Greene County, Mo. Alternative writ quashed, and application dismissed.

Statement.

On the 11th day of February, 1914, the relator filed an application in this court for a writ of prohibition against Guy D. Kirby, judge of the juvenile court of Greene county, Mo., alleging in substance that he was born in 1897, and under the age of 17 years, and that on the ____ day of ____, 1913, he was arrested upon a charge of murder in the first degree commited upon the body of one Roy Johnson upon the 18th day of November, 1913.

Relator states that a preliminary hearing of said charge was had before a justice of the peace of the city of Springfield, Mo., and relator was held to answer said charge and such indictment or information as might be presented or filed against him in the criminal court of Greene county, Mo., and entered into recognizance for his appearance in said criminal court; that said respondent, who is judge of the circuit court of Greene county, Mo., was, under articles 6 and 7 of chapter 35, Revised Statutes of 1909, judge also of the juvenile court of Greene county, Mo. Relator further states that on the 21st of January, 1914, there was served upon him a summons, of which the following copy was appended to his application to this court for writ of prohibition:

Writ of Summons.

State of Missouri, County of Greene — ss.:

In the Juvenile Court of Greene County, Mo. The State of Missouri to Morris Kelly and Parents:

You are hereby commanded that, setting aside all manner of excuse and delay, you be and appear in proper person before the judge of the juvenile court in the city of Springfield on Monday, at 9:00, the 2d day of February, 1914, then and there to answer an information preferred by the state of Missouri, at the relation of Sam M. Wear, against the said Morris Kelly, and wherein it is prayed that the said Morris Kelly be dealt with according to law as a delinquent child, a certified copy of which said information is hereto attached.

And the person or officer serving this writ is hereby commanded to have the same at the time and place aforesaid certifying thereon his return.

Witness, S. A. Reed, clerk of the circuit court and ex officio clerk of the juvenile court within and for Greene county, Missouri, with the seal of said court hereto affixed, at the office in the city of Springfield, this 21st day of January, 1914.

                                               S. A. Reed
                Clerk of Circuit Court and Ex Officio Clerk of
                      Juvenile Court
                 [Seal.]                ___________, Deputy
                 Attest:  A true copy of the original writ
                                                      [L. S.]
                

And there was attached to the summons a paper, of which the following is a copy, signed by Sam M. Wear, prosecuting attorney of Greene county, Mo., and filed in said juvenile court and attested by the clerk of said court:

                                   Information
                State of Missouri, County of Greene — ss
                In the Juvenile Court of Greene County,
                                     Missouri.
                The State of Missouri, at the Relation of Warren
                   L. White and Sam M. Wear, Prosecuting
                   Attorney of Greene County, Missouri,
                   Plaintiff, versus Morris Kelly, Defendant.
                

Sam M. Wear, prosecuting attorney within and for the county of Greene, in the state of Missouri, at the relation of Warren L. White, informs the court that Morris Kelly, on the 18th day of November, 1913, at the said county of Greene, and state of Missouri, being then and there a child under the age of seventeen years, and then and there was unlawfully delinquent within the meaning of the act of the General Assembly of the state of Missouri, entitled "An act to regulate treatment and control of delinquent children in counties of fifty thousand population," approved June 12, 1909.

That on the said 18th day of November, 1913, the said Morris Kelly was then and there unlawfully delinquent under the laws of the state of Missouri, and did unlawfully, willfully, feloniously, premeditatedly, deliberately, and of his malice aforethought, in and upon the body of one Roy Johnson, made an assault with a certain dangerous and deadly weapon, to wit, a pocket knife having a blade of the length of three inches, and with the said knife which he, the said Morris Kelly, then and there had and held in his hand, him, the said Roy Johnson, feloniously, willfully, deliberately, premeditatedly, and of his malice aforethought, did strike, cut, stab, and thrust in and upon the left side of the body...