State v. Tincher

• Citation: 258 Mo. 1,166 S.W. 1028
• Decision Date: 04 May 1914
• Docket Number: No. 18005.,18005.
• Parties: STATE ex rel. CAVE, Pros. Atty., v. TINCHER, Probate Judge.
• Court: Missouri Supreme Court

166 S.W. 1028

258 Mo. 1

STATE ex rel. CAVE, Pros. Atty., v. TINCHER, Probate Judge.

No. 18005.

Supreme Court of Missouri.

May 4, 1914.

1. INFANTS (§ 66) — CAPACITY — CRIME.

A child over 7 and under 14 years of age is prima facie incapable of crime.

2. STATUTES (§ 93) — SPECIAL LAWS.

Laws 1913, pp. 148-154, giving the probate court in counties of less than 50,000 inhabitants jurisdiction to provide for the care and control of delinquent children under 17 years of age, is not special legislation.

3. PARENT AND CHILD (§ 2) — PARENTAL CONTROL — RIGHT.

While the parent has a natural right of control, it is not inalienable, and, even in absence of statute, courts of equity may place children under guardianship.

4. INFANTS (§ 12) — DELINQUENT CHILDREN — CONTROL BY STATUTE.

The state as parens patriæ may promote the well-being of persons of defective understanding or delinquents, or those who are burdened with other misfortunes or infirmities so as to be unable to care for themselves, and the constitutional limitations will be so construed, if possible, to permit such supervision by the state.

5. CONSTITUTIONAL LAW (§ 274) — INFANTS (§ 12) — DUE PROCESS OF LAW — CONTROL OF DELINQUENT CHILDREN.

Laws 1913, pp. 148-154, giving the probate court in counties of less than 50,000 population jurisdiction to provide for the care and control of delinquent children under 17 years of age, is not an invasion of personal right or a denial of due process of law in that it interferes with the parental right of control of children.

6. COURTS (§ 1) — JURISDICTION — ENLARGEMENT.

Where the jurisdiction of the court is defined by the Constitution, the Legislature cannot ordinarily diminish, enlarge, or interfere with such jurisdiction.

7. COURTS (§ 199) — JURISDICTION — PROBATE COURTS — ENLARGEMENT.

Notwithstanding that the powers of the probate courts are defined by the Constitution, the Legislature may add to such powers, provided the additional powers conferred apply alike to all probate courts in the state.

8. STATUTES (§ 93) — JURISDICTION — PROBATE COURTS.

Laws 1913, pp. 148-154, conferring on probate courts in counties of less than 50,000 inhabitants jurisdiction to provide for the control of delinquent children under 17 years of age, is objectionable as conferring upon probate courts in such counties powers not given alike to all probate courts by the constitutional provisions defining the jurisdiction of probate courts.

9. INFANTS (§ 12) — CONTROL OF DELINQUENT CHILDREN — VALIDITY OF STATUTES — "DELINQUENT CHILD."

Laws 1913, pp. 148-154, confers on probate courts in counties of less than 50,000 inhabitants jurisdiction to provide for the control of delinquent children under 17 years of age. Section 2 defines a "delinquent child" as one which "violates any law of this state" except those punishable by death or imprisonment in the penitentiary. Section 3 permits any reputable person residing in the county and having information of a child who appears to be neglected or delinquent to file with the clerk of the probate court a verified petition stating the facts, which may be on information and belief. Under sections 4, 5, and 6, upon the filing of such petition a summons is issued, and the subsequent proceedings are similar to those authorizing the appointment of guardians for minors; and there is no provision for the filing of an information or the finding of an indictment against the delinquent according to the process of criminal law. Held, that that statute was invalid as attempting to include within its scope strictly criminal offenses without requiring the constitutional procedure in prosecutions for public offenses, such as the filing of an information or indictment, as required by Const. art. 2, § 12.

10. INFANTS (§ 16) — DELINQUENTS — INDICTMENT.

The indictment or information required by Const. art. 2, § 12, must be such a one as is contemplated by the common law, viz., an indictment found and presented by a grand jury or an information filed by a public officer authorized to prosecute criminals.

11. INFANTS (§ 12) — DELINQUENTS — CONSTITUTIONALITY OF STATUTE — TRIAL — DEFENSE BY COUNSEL.

Laws 1913, pp. 148-154, defining a delinquent child as one "who violates any law of this state" except those punishable by death or imprisonment in the penitentiary, and authorizing the probate court in proceedings to commit a delinquent child to hear the case in a summary manner and examine witnesses without the assistance of counsel, violates Const. art. 2, § 22, entitling an accused to appear and defend in person and by counsel and to meet the witnesses face to face, etc.

In Banc. Appeal from Circuit Court, Callaway County; David H. Harris, Judge.

Mandamus by the State, on the relation of Cave, Prosecuting Attorney, against J. W. Tincher, Probate Judge. From a judgment denying the writ, relator appeals. Affirmed.

John T. Barker, Atty. Gen., and Thomas J. Higgs, Asst. Atty. Gen. (S. P. Howell, of Jefferson City, of counsel), for appellant. J. R. Baker, of Fulton, for respondent.

WALKER, J.

Mandamus to compel the probate court of Callaway county to assume jurisdiction and hear and determine a charge of petit larceny against a boy of the age of 12 years.

The prosecuting attorney of Callaway county filed in the circuit court an information charging a boy of the age of 12 years with the crime of petit larceny. Upon the case being called in the circuit court for trial, the judge of said court, in accordance with the provisions of section 7, p. 152, Laws of Missouri 1913, ordered the same transferred to the probate court for hearing and determination. The judge of said court refused to docket the case or make any disposition of same. By petition the prosecuting attorney submitted these facts to the circuit court, which issued an alternative writ of mandamus directing the probate judge to assume jurisdiction and docket, hear, and dispose of the charge against said minor, or show cause why he should not comply with such order. The probate judge in his return admitted that he had refused to obey the order of the court, and alleged as a reason therefor that the act in which said section 7 appears, entitled "An act conferring jurisdiction on probate courts in counties of less than 50,000 inhabitants and providing for the care and control of children under seventeen years of age, who are delinquent," etc. (Laws Mo. 1913, pp. 148-154), was violative of certain sections of the Constitution set out in the return, and therefore void. The circuit court sustained the contentions of the probate judge, and refused to grant a peremptory writ, from which ruling the prosecuting attorney, complying with the formal procedure in regard thereto, appealed to this court.

The act in question is declaratory of the original and exclusive jurisdiction of probate courts, in counties of less than 50,000 population, over neglected and delinquent children. Jurisdiction once acquired is to continue until the child attains its majority. Within the designated classes are included every offender under 17 years of age, from the actual criminal to those guilty of evil associations, or improper conduct or conversation. Those excepted from the provisions of the act are children who are inmates of state institutions, or those now in institutions incorporated under the laws of the state, and children charged with offenses punishable by death or imprisonment in the penitentiary.

Regardless of the nature of the offense with which the child may be charged, within the limitations above stated, any reputable person who has knowledge of same, and who is a resident of the county, may file a petition verified by affidavit, with the clerk of the probate court, setting forth the facts in regard to such child, which affidavit may be on information and belief. A summons shall thereupon issue, requiring the child or the person having it in custody to appear within the next 24 hours after service or as directed by the court. The parent or guardian is also to be notified to attend, and upon failure to do so he may be proceeded against as for contempt. A summary hearing is thereupon had by the court in the absence of counsel, and provision is made in regard to costs. If the child be adjudged neglected or delinquent, the court proceeds to provide for its future care and custody. When a child is arrested with or without a warrant, it is to be taken before the judge of the probate court, and, while courts and magistrates may issue warrants for children, the subsequent proceedings must be before the probate court. Appeals are authorized to be taken, presumably to the circuit courts, but the act is silent in this regard. County courts are required to provide places of detention for children within the provisions of the act. The probate court is authorized to appoint a probation officer to serve under the direction of the court, and the board of charities and corrections is required to approve of the appointment of probation officers. The powers, duties, etc., of probation officers are defined, and county and municipal officers are required to lend their assistance to further the objects of the act. When a probate court takes a child from its parents, the ability of the latter to support the child may be inquired into, and, if found able, the court may order the parents to support the child or contribute thereto. Laws in regard to the Girls' Industrial Home and the Boys' Training School are declared not repealed by this act. The court is empowered to formulate and publish rules and regulate the proceedings necessary to the enforcement of the act, and the county is to pay the expenses of same. Lastly, it is provided that the act is to be liberally construed.

The foregoing presents the principal provisions of the act by the terms of which jurisdiction is conferred on probate courts over neglected and delinquent children in the counties designated; such sections as are...