Opinion
Opinion filed March 27, 1926. Rehearing denied June 19, 1926.
Application for writs of habeas corpus.
Writ denied.
George A. Bangs and Henry O'Keefe, Jr., for petitioners.
J.B. Wineman, State's Attorney for the state.
On the 26th day of March, 1925, complaint in writing was filed in the office of the police magistrate of the city of Grand Forks, Grand Forks county, North Dakota, charging John H. Neville with the commission of the crime of grand larceny. On the 28th day of March, 1925, defendant was arrested and given a preliminary examination after which he was bound over to appear in the district court of said county, and on the 2d day of June, 1925, an information was filed by the state's attorney of said county, charging defendants with the crime of grand larceny. He was duly arraigned and pleaded guilty, and, thereafter, on the 2d day of July, 1925, he was committed by the judge of said district court to the state training school at Mandan, North Dakota. About the same time, Warren V. Smith, Arthur Darcy, Harry Johnson and Carl Shol, were complained against and the procedure was the same before the committing magistrate and in the district court, all of the defendants being committed to the training school, except Carl Shol, who was sentenced to the penitentiary for one year and six months. The parents of the defendants were present at the preliminary hearing before the magistrate and the defendants were all represented by an attorney. The parents were also present in the district court, when the defendants pleaded guilty to the informations charging them with grand larceny, and when sentences were imposed, and at all times the defendants were represented by an attorney. At the time of arraignment and before the defendants pleaded guilty in the district court the trial judge was informed that the defendants would plead guilty and that the attorney for the defense and the state's attorney would and did recommend a suspension of sentence in each case. The defendants pleaded guilty, the judge took the matter under advisement, and pronounced judgment, but refused to suspend any of the sentences. After sentence the defendants, and each of them, through their parents, petitioned a judge of the district court of Grand Forks county for a writ of habeas corpus, upon the ground that the proceedings under which the defendants were arrested, tried and sentenced, were void, for the reason that all the defendants were under the age of 18 years; after hearing, the application for the writ was denied. Thereafter, the parents duly filed in this court, petitions alleging that the defendants were all under eighteen years of age, and that the committing magistrate and the chief of police knew, at the time of the preliminary examination, that the defendants were under eighteen years of age; that the state's attorney who prosecuted before the committing magistrate, and, thereafter, in the district court, and the judge of the district court, knew that the defendants were under eighteen years of age. It is the contention of the defendants that all of the proceedings in the police court, and in the district court were without jurisdiction and void.
The return of the defendant sheriff admits that complaint was made; that the defendants were bound over to the district court on charges of grand larceny; that they pleaded guilty thereto; and that they were duly sentenced and committed to the training school, and the defendant, Shol, to the penitentiary for one year and six months. The return then alleges that the ages of the defendants were not put in issue before the committing magistrate, or in the district court, and that the defendants did not, or any one in their behalf, ask to have the case sent to the juvenile court.
There were separate petitions and returns for each of the defendants, but they were all argued together in the briefs. The facts in relation to each of the defendants are practically the same.
The learned counsel for the petitioners has gone into the subject at great length and in an exhaustive brief has compared our juvenile statute with the juvenile statutes of other states. The juvenile court acts are very similar except for one important particular to be hereinafter noted. Delinquent children are made wards of the state. In this state the district courts are given original jurisdiction. On the part of the state, the proceedings are in the interest of the child with due regard to the rights and duties of the parents.
The act should be liberally construed to the end that its purpose may be carried out, to wit: that the care, custody and discipline of the child shall approximate as nearly as may be that which should be given by its parents. The petitioners claim that the juvenile court has exclusive jurisdiction under § 11,416, Comp. Laws 1913, which reads as follows:
"If any child under the age of eighteen years is arrested with or without warrant, such child shall, instead of being taken before a justice of the peace or police magistrate, be given into the care of a juvenile officer of said county, and the officer having the child in charge shall take the child before such juvenile court, and in any case the county court may proceed to hear and dispose of the case in the same manner as if the child had been brought before the court upon petition as herein provided. In any case, the court shall require notice to be given, and investigation to be made as in other cases under this act, and may adjourn the hearing from time to time for that purpose."
Petitioners rely on the case of Re Powell, 6 Okla. Cr. 495, 120 P. 1022, and while our statute is in some respects like the statute of Oklahoma, there is one very important distinction. In the case of Re Powell, supra, on page 1028, the court says:
"There is one other proposition raised by this petition that we deem it well to dispose of. That is the question of the jurisdiction of the district, or other courts than the juvenile courts, to commit juvenile offenders to the training school for boys?"
The court then quotes §§ 8539 and 8543 of Snyder's Statutes of Oklahoma, and then follow with comment as follows:
"Those provisions apparently confer this jurisdiction; but those sections were enacted prior to the enactment of the law in question (meaning the juvenile court law), and are directly in conflict with the fundamental purpose of many of its provisions. . . .
"Section 11 of the act before us provides that: `All acts and parts of acts in conflict herewith are hereby repealed.' The general provisions of Snyder's Statutes, supra, were sufficient to confer this right upon the district and other courts, but the provision last quoted clearly repeals them. Should the general provisions of §§ 8539 and 8543 stand, the very purpose of the law under consideration would be destroyed. It was evidently the intention of the Legislature to give this right to commit children to the State Training School, for the purpose of reform, education, and development, into the exclusive control of the juvenile courts, and we are impelled to the conclusion that this is the effect of the law as it stands."
The Oklahoma act gives the juvenile court exclusive original jurisdiction over persons under the statutory age. The Oklahoma statute does not have a repealing clause like the repealing section of the North Dakota act, nor has our attention been called to any juvenile act with a similar repealing clause. It was not a part of the bill as it was introduced in the legislature, but was offered and adopted as an amendment as shown by the Senate Journal for the legislative year 1911, page 236. It reads as follows:
"Section 11,428. This act shall be construed to repeal existing laws in conflict with this act under and by which dependent, neglected and delinquent children as defined by this act might be arrested, complained against, committed, confined or taken into or placed in custody, in justice courts or police courts, but as to all other laws it shall be construed as cumulative and not as exclusive." (Italics are ours.)
It is clear that the juvenile act, outside of proceedings in justice or police courts, is additional legislation. This leaves intact § 11,281 which reads as follows:
"Whenever any person under the age of twenty years shall in any district court or county court having increased jurisdiction of this state be found guilty of a crime or public offense, other than murder, such court may, if in its judgment the accused is a proper subject therefor, instead of entering judgment against such person, direct by an order to be entered in the minutes of the court that such person be committed to the state reform school until such person attains the age of twenty-one (21) years."
The district court has jurisdiction over all criminal offenses and exclusive original jurisdiction over all felonies, and of all persons brought therein, charged with the commission of crime. The juvenile court act does not deprive the district court of jurisdiction in criminal causes; it specifically states in the repealing clause that it is cumulative and not exclusive as to all law, excepting only the law as administered in justice and police courts. The jurisdiction of the district court under the juvenile court act has been enlarged to cover the matters embraced in such legislation. It is not a separate and distinct court but the same court with enlarged powers. 7 R.C.L. 981; People v. Budd, 24 Cal.App. 176, 140 P. 714; Re Sharp, 15 Idaho, 120, 18 L.R.A.(N.S.) 886, 96 P. 563; State v. Drury, 25 Idaho, 787, 139 P. 1129; Lindsay v. Lindsay, 257 Ill. 328, 45 L.R.A.(N.S.) 908, 100 N.E. 892, Ann. Cas. 1914A, 1222; DeKay v. Oliver, 161 Iowa, 550, 143 N.W. 508; Marlowe v. Com. 142 Ky. 106, 133 S.W. 1137; State v. Riney, 125 La. 121, 51 So. 89; Van Leuven v. Ingham Circuit Judge, 166 Mich. 115, 131 N.W. 531; Re Broughton, 192 Mich. 418, 158 N.W. 884; State ex rel. Stearns County v. Klasen, 123 Minn. 382, 49 L.R.A.(N.S.) 597, 143 N.W. 984; State ex rel. Miller v. Bryant, 94 Neb. 754, 144 N.W. 804; Travis v. State, 31 Ohio C.C. 492; Re Powell, 6 Okla. Cr. 495, 120 P. 1022; Com. v. Fisher, 213 Pa. 48, 62 A. 198, 5 Ann. Cas. 92; State ex rel. Kronschnabel v. Isenhuth, 34 S.D. 218, 148 N.W. 9; Ragsdale v. State, 61 Tex.Crim. Rep., 134 S.W. 234.
The jurisdiction of juvenile offenses in the state of Iowa was originally conferred on the district court, and in the case of De Kay v. Oliver, 161 Iowa, 550, 143 N.W. 508, a case practically the same as the case at bar, the court said:
"An examination of the several statutes relating to proceedings under the juvenile court act shows that no new tribunal was created by the legislature. Originally the full and exclusive jurisdiction was given to the district court, which later by amendment was extended to the superior court. Nowhere does the statute provide for a juvenile court as an independent tribunal; the only provision being that record of proceedings in the district court or the superior court, under what is termed the juvenile court act, shall be kept in a book or books to be known as the Juvenile Court Record. Even though the information in the present case and the warrant of commitment both are headed, `In the juvenile court of Iowa, in and for Woodbury county,' and the return of the defendant to the writ of certiorari refers to the proceedings as having been in the juvenile court presided over by himself, as judge of the district court, such words can only be construed as terms of description and not of jurisdiction. The records of the proceedings, in whatever book they may be preserved, are records of the district court."
The district court having had jurisdiction of the defendants and of the offenses charged in the information, had jurisdiction to accept the pleas of guilty, and it is presumed that the judge in imposing sentence took into consideration the ages of the defendants and inflicted punishment in accordance with his best judgment.
This disposes of the question of jurisdiction, which is the only question that can be inquired into on habeas corpus. It is well settled that the writ of habeas corpus can be invoked only when petitioner is confined without jurisdiction, and, since the court had jurisdiction of the offenses charged and of the defendants, the writs must be denied. State ex rel. Smith v. Lee, 53 N.D. 86, 205 N.W. 314; State v. Floyd, 22 N.D. 183, 132 N.W. 662; Re Solberg, 52 N.D. 518, 203 N.W. 898; State v. Barnes, 29 N.D. 165, 150 N.W. 557, Ann. Cas. 1917C, 762; State ex rel. Styles v. Beaverstad, 12 N.D. 527, 97 N.W. 548; Re Eckart, 166 U.S. 481, 41 L. ed. 1085, 17 Sup. Ct. Rep. 638; Hogan v. State, 30 Wis. 428, 11 Am. Rep. 575; Scott R. Habeas Corpus, p. 85; Re McNaught, 1 Okla. Cr. 528, 99 P. 241; Re Hayward, 62 Cal.App. 177, 216 P. 414; Re Wilkins, 7 Okla. Cr. 422,
115 P. 1118; Ex parte Burroughs, 10 Okla. Cr. 87, 133 P. 1142.
Section 11,416, which required the officer making the arrest to give into the care of a juvenile officer all children arrested under eighteen years of age, is to prevent children of tender years from being thrown into jail with hardened criminals and is in harmony with the object and purpose of the juvenile act.
The juvenile court is not a criminal court and it is the purpose of the law to treat juvenile offenders under eighteen years of age not as criminals, but as far as practicable to give them the paternal care of the home, to save them from the stigma attaching to crime, to guard and protect them against themselves, and all evil-minded persons.
We are not concerned with the question of the jurisdiction of police magistrate and justices of the peace over juvenile offenders against the law. The persons in whose behalf the writ of habeas corpus is prosecuted, are not held by virtue of a commitment issued by the police magistrate or justice of the peace; they are held by virtue of a judgment of conviction of a felony in the district court which has exclusive jurisdiction over such offenses.
There is no contention that the proceedings were under the juvenile court act, the proceedings were all under the general criminal procedure for the prosecution of criminals, in the court, having exclusive jurisdiction over the offenses charged in the information, and jurisdiction over the person of the defendants, and the acceptance of the pleas of the defendants and the commitments were wholly within the jurisdiction of the court, and the writs must be denied.
However, the juvenile court act makes it the duty of an officer who arrests a child under the age of eighteen years to give the child "into the care of a juvenile officer of said county" instead of taking the child "before a justice of the peace or police magistrate." § 11,416, supra. The statute is silent as to the procedure to be adopted where an officer brings a juvenile offender before a police magistrate or justice of the peace. But aside from all questions as to jurisdiction, we are agreed that, in such case, where it is apparent from the personal appearance of the defendant that he or she is under the age of 18 years, it is the duty of the police magistrate or justice of the peace to stop further proceedings, and transfer the cause to the juvenile court, and cause the person of the defendant to be delivered to a juvenile officer of the county. In all cases where the question of age is raised and the personal appearance of the defendant leaves any room for doubt as to whether he or she is under the age of eighteen it becomes the duty of the police magistrate or justice of the peace to first hear evidence on that question; and if it appear that the defendant is under the age of eighteen, it is the duty of the officer to proceed no further, but to transfer the whole matter to the juvenile court. Writs are denied.
CHRISTIANSON, Ch. J., and JOHNSON, NUESSLE, and BIRDZELL, JJ., concur.
On petition for rehearing.
Counsel for the petitioner has filed a petition for a rehearing in which it is strongly urged that the court, in the opinion filed, misconstrued the juvenile court law and misapplied elementary legal principles.
In the opinion assailed this court held, in substance, that the juvenile court act did not operate to divest the district court of jurisdiction to try the petitioners upon the criminal charges laid against them in the informations filed by the state's attorney; and that, inasmuch as the judgment, notwithstanding it may have been erroneous, was within the jurisdiction of the court to render, the case at bar is not one in which a writ of habeas corpus should issue.
At the outset attention should again be directed to the rule, many times applied in this court, that in a habeas corpus proceeding, jurisdictional questions only may be considered. The writ will not issue for the purpose of correcting errors in the acts of courts or officers when acting within their jurisdiction. The writ cannot be used as a substitute for appeal. This court has repeatedly said that the writ is not available for the purpose of releasing a prisoner from confinement or restraint unless it be made to appear that the court, officer, or person who restrains the petitioner of his liberty is acting or has acted without jurisdiction. The judicial inquiry extends to the power of the court, magistrate, or officer to make the commitment or to restrain the prisoner of his liberty, and jurisdiction to make the judgment or the order which constitutes the basis of the claim that the restraint is lawful, is as essential as is jurisdiction of the person and the subject matter. See State ex rel. Styles v. Beaverstad, 12 N.D. 527, 97 N.W. 548; State v. Floyd, 22 N.D. 183, 132 N.W. 662; Re Solberg, 52 N.D. 518, 203 N.W. 898; State ex rel. Smith v. Lee, 53 N.D. 86, 205 N.W. 314. It will thus be observed that the range of the inquiry is distinctly limited. In the case before us, the only question which the court may consider is that of jurisdiction in the district court of Grand Forks county to enter judgment and to pronounce sentences upon the pleas of guilty entered by the petitioners in this proceeding. Mere irregularity or error, not going to the jurisdiction of the court, is not sufficient to entitle the petitioners to the writ. If the court had jurisdiction to pronounce judgment and sentence, error in making a decision is not reviewable in this proceeding.
Broadly stated, the primary question before us is whether the juvenile court statute divested the district court of jurisdiction to receive pleas of guilty and to pronounce judgment and sentence thereon, from prisoners under the age of eighteen years, informed against in the district court upon criminal charges, but without any preliminary or prior order from the juvenile court, authorizing or permitting such prosecutions.
The juvenile court law was passed as chapter 177, Sess. Laws 1911. As originally introduced, the bill creating the court, conferred jurisdiction of delinquent juveniles upon the county court. In the course of passage, the bill was amended so as to continue this jurisdiction in the district court, sitting and acting as a juvenile court. A fundamental change was also made in § 27, of the Act. Comp. Laws 1913, § 11,428. In the bill, as introduced, § 27 was simply a general repeal of existing acts "inconsistent with or in conflict with the purview of this act." The amendment, adopted during passage, throws a flood of light upon the intended scope of juvenile jurisdiction. There would have been more force to counsel's contention had the act contained merely the general repealing clause which in most instances adds little to the effect of the new act as a repeal of prior inconsistent legislative enactments. We must assume that the legislature had a definite purpose in view when, during the course of passage, § 27 was stricken, and the present § 11,428, Comp. Laws 1913, substituted in its place. Section 27 (§ 11,428), as passed, reads as follows:
"This act shall be construed to repeal existing laws in conflict with this act under and by which dependent, neglected and delinquent children as defined by this act might be arrested, complained against, committed, confined or taken into or placed in custody, in justice courts or police courts, but as to all other laws it shall be construed as cumulative and not as exclusive." This repealing clause is unusual in language and in form. It was evidently framed with care and a deliberate purpose to accomplish a result which the legislature did not believe would follow from the stereotyped repealing clause which customarily is appended to legislative acts. Consideration of the meaning and effect of this section will be in order later.
Section 11,281, Comp. Laws 1913, as amended by chapter 193, Sess. Laws 1915 appears first as chapter 164 of the Sess. Laws of 1890. Under this statute the district court has had jurisdiction to commit offenders, under 18 years of age, — in 1913 the age was changed to twenty years — in its discretion to the reform school, now known as the training school. Section 11,282, provides that for the purpose of effectuating the intent of the preceding section, all persons, regardless of sex, shall be deemed minors until the age of twenty-one. Section 11,283, Comp. Laws 1913, which appears as § 11, of chapter 164, Sess. Laws 1890, prescribes the procedure in the case of an offender under the age of eighteen when such person has been convicted of a public offense before a justice of the peace, or in any court other than a district court of the state. This section is probably superseded by the provisions of the juvenile court law, which deprive justices of the peace and police magistrates of jurisdiction to try and sentence offenders under eighteen years of age. This concession, however, cannot be properly made with respect to § 11,281, supra. The district court, under that section, has jurisdiction of offenders under twenty years of age, who are tried on criminal charges in the district court and has had such jurisdiction over offenses by persons under eighteen years without interruption for thirty-five years. It was not until 1913, two years after the passage of the juvenile court law, that the age limit was raised from eighteen to twenty years. We think it must be assumed that the re-enactment of this section in 1913 and again in 1915, evidences a legislative recognition of the fact that the district court still had jurisdiction to try offending minors notwithstanding the enactment of the juvenile court law.
Section 11,422 Comp. Laws 1913, states the purpose the legislature had in mind. It is there said that in case of delinquency, it is the purpose of the law "that as far as practicable, any delinquent child shall be treated, not as a criminal, but as misdirected and misguided, and needing aid." (Emphasis is ours.) In other words, the legislature did not intend by the juvenile act to deprive the district court of jurisdiction to try juvenile offenders in the first instance and in all cases, but only to provide that "as far as practicable," all juvenile offenders should first be brought into the district court, sitting as a juvenile court; and in all cases inferior courts, like the police court and justice court, are divested of jurisdiction to try juvenile offenders or pronounce sentence upon them.
The legislative intent, with respect to the arrest of juvenile offenders, is so clearly expressed in § 11,416, Comp. Laws 1913, that no comment seems necessary. To bring a juvenile, under the age of eighteen years, before a justice of the peace or a police magistrate for the purpose of a preliminary examination is in manifest defiance of the statute. The act specifically provides that a child under eighteen years, if arrested, shall not be taken before such an officer, but shall be "given into the care of a juvenile officer of said county." In the cases before us, as said by the counsel for the petitioner, the proceedings before the magistrate were wholly irregular and contrary to the statute; and it was the plain duty of the officers, including the state's attorney, who had any connection with their arrest, to give the boys "into the care of the juvenile officer of" Grand Forks county. The fact remains however, that errors in these respects do not amount to such jurisdictional defects as justify the issuance of the writ of habeas corpus.
Primarily, jurisdiction over juvenile offenders is in the district court, sitting as a juvenile court. Of this, all police officers and state's attorneys should take notice. The juvenile court has the discretionary power to order a criminal prosecution in the usual course. Comp. Laws 1913, § 11,412. If, however, a juvenile comes into the district court, pleads to and is tried on an information and the court imposes a sentence after conviction, or upon a plea of guilty, we are constrained to hold that the district court, as such, is not without jurisdiction to pronounce judgment, or to send the prisoner to the State Training school. Comp. Laws 1913, §§ 11,428 and 11,281. In the cases at bar, the district court recognized the criminal prosecutions and did not direct further proceedings to be had in the juvenile court. It could, on its own motion or on the suggestion of the prisoners, have terminated the criminal prosecutions and given the youthful offenders to the care of the juvenile officers. In most cases this should be done, especially if it be not impracticable to deal with prisoners under the juvenile court law. Such is clearly the spirit of legislation on this subject. The discretion in this behalf is that of the district court, not that of the state's attorney, as seems to be the view of counsel for the petitioner.
The legislative purpose is clearly evidenced by the repeal clause. There the intent to divest justice courts and police courts of all jurisdiction is made unmistakably clear; on the other hand the purpose not to divest the district court of jurisdiction is equally manifest. All statutes giving the police and the justice courts jurisdiction over juvenile offenders are expressly declared to be repealed; but as to all other laws, like for example, § 11,281, supra, the juvenile act is supplementary and not a repeal — "cumulative and not . . . exclusive." We see no escape from the conclusion that such was the deliberate and clearly expressed legislative intention. Whether this be wise or unwise is not for this court to say. All the dire consequences pictured by counsel for the petitioners, all the confusion he anticipates, may follow from this interpretation of the law. It is not our province to amend or rewrite statutes so as to prevent results which may seem unwise or unfortunate; our duty is performed and our power is exhausted when we have declared the meaning of the statute.
Our conclusion that the legislature deliberately left jurisdiction in the district court disposes of the contention that the juvenile court law must be construed as extending the age of capacity to commit crime, from seven to eighteen years, and as, in that respect amendatory of § 9207, Comp. Laws 1913. That result may necessarily and properly follow under the statutes of Oklahoma and Missouri, according to the decisions cited by counsel. It can not follow under the express statutory reservation to which we have called attention, continuing jurisdiction in the district court over juvenile offenders. Apparently no such provision is found in the statutes of Missouri or Oklahoma.
It is alleged in the application for the writ, that prior to the plea of guilty, the applicants received a solemn promise from the state's attorney of immunity from penalties, or of suspended sentences, in certain contingencies, and particularly so in the case of John Neville; and that the state's attorney notified the trial judge that such promise and assurance had been made; but that, notwithstanding such promises and in complete disregard thereof, the district court accepted the pleas, and proceeded to sentence petitioner Neville, and the other applicants. It is then stated in the application that the petitioners neglected to take any steps to protect their rights in reliance upon the promises and assurances thus given. The return of the sheriff does not controvert these allegations, and, in substance, the state's attorney, upon the oral argument, admitted that they were true. It is not suggested that the state's attorney did not in good faith endeavor to carry out the promises. It goes without saying that the state owes the defendant in a criminal action, whether he be of age or a minor, complete good faith. A plea procured in the circumstances detailed in the application, should not be accepted and made the basis of a judgment. A judgment of conviction and a sentence, either to the penitentiary or of confinement in the training school, made in such circumstances, would seem to be so palpably erroneous that in a proper proceeding and upon a proper application, it would and should be vacated with permission to the defendants to withdraw their pleas and take whatever steps they may deem proper to protect their rights. As we have pointed out, however, this court has no power in a habeas corpus proceeding to correct errors of this sort. It should be unnecessary to dwell at greater length upon the reasons which preclude this court from correcting an erroneous judgment in the respects mentioned; and our conclusion, that, on habeas corpus, following the statutes and time-worn precedents of this court, we have no such power, should not be construed as an expression of approval of what may or may not have taken place in the court below. It would indeed be an illustration of the statement made by counsel in his petition for a reargument, that "hard cases make bad law," were we to undertake to correct mere irregularities on habeas corpus because they are more than ordinarily glaring and more than usually calculated to appeal to the sympathies and to our sense of justice.
The interpretation we have given the statutes, makes it clearly unnecessary to decide when or in what circumstances, if ever, a juvenile may waive any rights or provisions under the juvenile court law.
The petition for rehearing is denied.
CHRISTIANSON, Ch. J., and NUESSLE, BURKE, and BIRDZELL, JJ., concur.