White v. Commonwealth

• Decision Date: 11 March 1932
• Citation: White v. Commonwealth, 242 Ky. 736, 47 S.W.2d 548 (Ky. Ct. App. 1932)
• Parties: WHITE et al. v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

47 S.W.2d 548

242 Ky. 736

WHITE et al. v. COMMONWEALTH.

Court of Appeals of Kentucky

March 11, 1932

Appeal from Circuit Court, Perry County.

Allison White and another were convicted of storehouse breaking, and they appeal.

Affirmed as to defendant White, and reversed as to defendant Cecil Deaton.

Vernon Faulkner, C. A. Noble, and D. G. Boleyn, all of Hazard, for appellant.

J. W Cammack, Atty. Gen., for the Commonwealth.

PERRY J.

The appellants, Allison White and Cecil Deaton, were jointly indicted with Bev Noble by the grand jury of Perry county Ky. at its September term, 1930, and charged with the crime of storehouse breaking. Noble demanded and was granted a separate trial. Appellants, Allison White and Cecil Deaton were tried jointly, each found guilty, and each sentenced to one year in the state penitentiary. The trial court, in pronouncing judgment, upon finding that Cecil Deaton was "under the age of 21 years of age at the time of committing this offense and that this was his first offense," ordered that Deaton be confined in the house of reform at Greendale, Ky. for the period of one year.

Appellants' motion and grounds for a new trial being overruled, they prosecute, in one brief, this appeal, seeking a reversal of the judgments entered upon these verdicts found against them.

The motion and grounds for a new trial assigned seven grounds complaining of errors committed upon their trial, but, in their brief, counsel sets out and argues only two grounds upon which the appellants contend the judgments rendered in this case upon the verdicts against them should be reversed and a new trial awarded.

We will confine our discussion to these two grounds thus presented and contended for by them. Any others not advanced in their brief will be now considered by us as having been waived.

Appellants complain, first, that as to each of them "the verdict of the jury is palpably against the evidence and that it was not the result of deliberation, but of passion and prejudice," and, second, as to the appellant Cecil Deaton, counsel urges the further objection in his behalf that Deaton was tried in the Perry circuit court without having been first brought before the county court and by that court his case ordered transferred for trial to the circuit court, as provided in section 331e-5, Kentucky Statutes.

We will now attempt to consider and dispose of these objections in reverse order to that in which presented.

We will, therefore, first consider the complaint urged in brief as objection 2; that the circuit court proceeded with the trial against the appellant Cecil Deaton, without having jurisdiction of him, for the reason and because, it is alleged, that Deaton was under the age of 17 at the time of his alleged commission of the offense for which here tried, and that his trial was had in the circuit court and verdict therein returned by the jury against him without any hearing or trial of the charge first had thereof in the Perry county court, when acting as judge of the juvenile court, and its jurisdiction, thereby acquired, having been surrendered and by proper order transferred by the Perry county court to the circuit court for trial upon the charge, as provided by sections 331e-1 to 311e-5 of the Statutes.

It appears by the record that the matter of the defendant Deaton's being under 17 years of age at the time he is charged with having committed this offense was not brought to the attention of the court, nor objection made to its jurisdiction to try the defendant; that the defendant had never been before the Perry county court, acting as a juvenile court, wherein his charged commission of this offense was considered, and the defendant found to have been under 17 years of age at such time, and the county court's jurisdiction of the defendant thus acquired was never by any proper order of said court surrendered or transferred to the circuit court for trial of the offense, as by section 331e-5 of the Statutes required, but trial of the defendant in the circuit court was suffered to proceed until after verdict had been returned against him, without objection made to the jurisdiction of the court, or proof heard upon such objection for the ascertainment of the defendant Deaton's age at the time of the commission of the offense until after verdict was returned, when defendant set out such claim in his motion and grounds for a new trial. The only evidence had or proof heard in support of defendant's contention, so presented to the court, was the affidavit of defendant's father, James Deaton, filed with and in support of his motion, wherein the affiant averred that "the defendant, Cecil Deaton, was born on the 31st day of August, 1913 and that he was 17 years of age on the 31st day of August, 1930 and that on the 5th day of August, 1930, and at the time the storehouse of Sam Moore was alleged to have been broken into, he was not 17 years of age and that on the day the said store was broken into, he was arrested and arraigned before Shiloh Sallie, justice of the peace of Perry county, Kentucky, and was never and has never been arraigned by the county judge of Perry county on the said charge, or before any other judge of like or similar jurisdiction in Perry county, Kentucky."

It appears from the record herein that the trial court, upon the evidence of this affidavit of James Deaton, which was the only evidence heard by it in support of defendant's motion for a new trial, overruled the motion and pronounced judgment upon the jury's verdict, which fixed the defendant Deaton's punishment at confinement in the state penitentiary for a period of one year, by adjudging that "it appearing to the satisfaction of the court that the defendant is under 21 years of age and that he was born on the 31st day of August, 1913, and that it was his first offense, that the defendant, Cecil Deaton, be confined in the House of Reform at Greendale, Kentucky, until he is 21 years of age," or, as elsewhere appears in the record, did adjudge that the defendant be therein confined for the period of one year.

Two questions are thus presented in this objection, the first being whether the date of the commission of the offense, or the date of the trial of defendant, shall control and determine whether the defendant is within the terms of section 331e-5 of the present Statutes, as being then 17 years of age, or under, it appearing that the defendant Deaton had not passed his seventeenth birthday when he is charged with having committed the offense on August 5, 1930 but became 17 on August 31, 1930, and had thus passed his seventeenth birthday at the time of his trial on December 3, 1930. Each of these questions has frequently been decided by this court, it having, in the late case of Goodfriend v. Commonwealth, 216 Ky. 573, 288 S.W. 330, said: "Under Ky. St. §§ 331e-1-331e-23, in fixing jurisdiction of juvenile court of criminal offenses, offender's age at time of offense controls," and also that, "exclusive original jurisdiction of all male offenders 17 years of age and under is vested in the juvenile court, and unless and until that court orders a transfer of the case, such offenders cannot be prosecuted for a criminal offense." Commonwealth v. Franks, 164 Ky. 239, 175 S.W. 349; Talbott v. Commonwealth, 166 Ky. 659, 179 S.W. 621; Waters v. Commonwealth, 171 Ky. 457, 188 S.W. 490; Wilson v. Commonwealth, 208 Ky. 707, 271 S.W. 1055. And further declared in its opinion that this question of jurisdiction may be raised for the first time in the appellate court, as was in the earlier case of Talbott v. Commonwealth, 166 Ky. 659, 179 S.W. 621, 622, forcibly and clearly stated by Judge Carroll as follows: "We therefore conclude that the circuit court had no jurisdiction to hear or determine this case, and, having no jurisdiction, it was not necessary that the defendant should have made the ordinary objections to the jurisdiction of the court to save his right to raise the question here. The statute deprived the court of jurisdiction, and this want of statutory jurisdiction may be relied on in cases like this as a ground for reversal, although not raised in the circuit court. The circuit court has jurisdiction only to indict and try juvenile offenders when they have been transferred to that court by the county court in the manner authorized by the statute. This does not, of course, mean that, when the circuit court takes jurisdiction to hear and determine a case against a juvenile offender, and it develops for the first time during the trial that the defendant is within the statutory age, he cannot, upon his dismissal in the circuit court, be immediately apprehended and taken before the county court; nor does it mean that on the return of this case the defendant should not be, upon his discharge by the circuit court, at once arrested, and taken before the...