Opinion
June 11, 1930.
1. SPECIAL APPEAL: Dismissal: Copy of Record. If the application for a special appeal was filed immediately after a decision was rendered by this court in which it was held that appellant was entitled to an appeal, and the court had before it the record in that case identically the same as in this case, the special appeal will not be dismissed on an assignment that the judge who allowed it did not have before him a copy of the record in this case.
2. SPECIAL APPEAL: Dismissal: Discovery of Error in Record. After the allowance of the special appeal it will not be dismissed on the ground that the special judge who allowed it did not discover by an inspection of the record that error had been committed by the trial court materially affecting the merits of the action. The respondent cannot be heard to say that to such judge no error appeared.
3. ____: From Juvenile Court: Jurisdiction: Constitutional Question. Jurisdiction of an appeal from a proceeding in the juvenile court is in this court where the appellant timely raises constitutional questions.
4. ____: ____: ____: Timely Raised. A question involving the validity of the Juvenile Act may be raised for the first time in this court on appeal. The act provides for no pleadings, and the proceedings are informal, and whether a constitutional question was raised in a proceeding to determine the status of a child charged to be a neglected child would not appear in the record, nor necessarily appear in the application for an appeal.
5. JUVENILE ACTS: Difference in Definition of Neglected and Delinquent Children: Equal Protection. The slight differences in the definition of neglected and delinquent children found in the act relating to such children in counties having fifty thousand inhabitants or over, and in the act relating to such children in counties having a population of less than fifty thousand, do not deny to children in such larger counties the equal protection guaranteed by the Fourteenth Amendment.
6. TRIAL BY JURY: Juvenile Delinquent: Not Raised at Trial. Unless the alleged neglected child, or some one for him, demanded a trial by a jury in the proceeding brought in the juvenile court to make him a ward of the court, the question of his constitutional right to a trial by jury is not for consideration in the appellate court.
7. SPECIAL APPEAL: Errors Considered: Bill of Exceptions. On the hearing of a special appeal the appellate court can consider only errors apparent in the record at the time the appeal was taken, and cannot consider errors appearing in a bill of exceptions filed subsequently.
8. JUVENILE COURT: Continued Jurisdiction: Appeal: Subsequent Trial. The juvenile court, having heard the evidence and found that the child was a neglected child and was suffering from the cruelty and depravity of his mother, and adjudged him to be a ward of the court, continues to retain jurisdiction of the case; and where the child took an appeal, from such finding, and pending the appeal the child has been in charge of his mother, the court upon a remand of the case should take evidence for the purpose of determining whether the mother is a fit person to have charge and custody of the child.
Special Appeal from Juvenile Court of Jackson County. — Hon. E.E. Porterfield, Judge.
AFFIRMED AND REMANDED ( with directions).
E.B. Silvers for appellant.
(1) The Constitution of 1875 provides that "the right of trial by jury, as heretofore enjoyed, shall remain inviolate." Mo. Constitution, art. 2, sec. 28. (2) In applying this constitutional provision, the court looks first to the nature of the issue, and second to how such an issue was tried prior to 1875. Berry v. Railroad Co., 223 Mo. 358. (3) Prior to 1875, in any case where the issues involved was the right of the State to infringe the liberty of the citizen, a jury trial was required. (4) This is not a proceeding to determine the right of custody as between rival claimants to a child; but, under the statute, it is a proceeding to take the child from its parents and commit it to a foreign custody, as a ward of the court, and subject to the restraint of the court and the probation officer. Sec. 2595, R.S. 1919, as amended, Laws 1923; Sec. 2607, R.S. 1919. (5) When the Juvenile Act, applicable to counties of 50,000 inhabitants, sets up a different standard from that set up in the act applicable to counties of less than 50,000 inhabitants, it denies equal protection of the law and is unconstitutional. State v. Gregori, 2 S.W.2d 748. (6) The juvenile act applicable to counties of 50,000 inhabitants declares a child neglected when suffering from cruelty of his parents. Sec. 2591, R.S. 1919; Laws 1923, p. 153. But the juvenile act applicable to other counties does not so define a neglected child. Sec. 1135, R.S. 1919. (7) The complaint or petition charging neglect must state facts constituting the neglect. Sec. 2593, R.S. 1919. (8) The judgment must state the facts found by the court to support its finding of neglect. State v. Trimble, 269 S.W. 620. (9) Findings of fact by the court must sustain the judgment. Lesan Advertising Co. v. Castle, 165 Mo. App. 575. (10) Cruelty to a human being means the wanton, malicious and unnecessary infliction of pain. Black's Law Dict. (2 Ed.). It involves the idea of wantonness. Rebstock v. Rebstock, 144 N.Y.S. 289. (11) Depravity means the state of being generally bad, wicked in mind and heart, loving evil rather than good. Knepper v. Knepper, 139 Mo. App. 493.
Stratton Shartel, Attorney-General, for respondent; Butcher Knoop and H.D. Kissenger of counsel.
(1) This appeal was allowed in pursuance to the provisions of Sec. 1474, R.S. 1919. No copy of the record was filed in this court at that time. Nothing but the record proper could have been presented or filed at that time. The bill of exceptions was not allowed and filed by the trial court until long after granting the appeal. An appeal granted in pursuance to the provisions of Section 1474 will be disposed of in this court on the condition of the record at the time the appeal is allowed: Brockman v. United Railways Co., 197 S.W. 337; Buerck v. Products Co., 245 S.W. 49. (2) This court does not have jurisdiction of an appeal from the Juvenile Court, unless a constitutional question is involved. To confer jurisdiction upon this court on the ground of the constitutionality of any statute, the validity of the statute must be directly raised at the first opportunity that good pleading and orderly procedure will permit. State v. Mackey, 259 S.W. 430; Lohmeyer v. Cordage Co., 214 Mo. 685; State ex rel. v. Buder, 287 S.W. 307; McManus v. Pork, 229 S.W. 215. (3) The constitutionality of the statute was not raised by appellant, if properly raised at all, until in his motion for a new trial. The motion for a new trial, being no part of the record until preserved in a bill of exceptions, is not before this court for consideration, for the reason that the bill of exceptions was not filed until long after the granting of the appeal herein. (4) The constitutionality of the statute dealing with neglected and delinquent children has heretofore been passed upon by this court, and where the constitutionality of a statute has once been passed upon subsequent proceedings, though raising the constitutionality of such statute, will not be sufficient to confer appellate jurisdiction upon this court: State ex rel. Matacia v. Buckner, 254 S.W. 179; Webster v. U.S. Railroad Administration, 234 S.W. 790. (5) The complaint charges the appellant with being a neglected child within the meaning of the law and then specifies two acts which it is alleged, constitute him a neglected child. One is that he is living with a vicious person, Mrs. Frances B. Campbell, and the other is that he is suffering from the cruelty and depravity of its parents, in that he had been severely beaten by Mrs. Frances B. Campbell. It would have been sufficient to have charged the appellant that he was a neglected child within the meaning of the statute provided in such cases. State ex rel. v. Trimble, 269 S.W. 617. (6) The judgment finds that the defendant is a neglected child within the meaning of the statute, in such cases, and is suffering from the cruelty and depravity of his mother, Frances B. Campbell, in that he has been severely beaten by her. This is a sufficient finding to authorize an adjudication that the appellant was a neglected child. State ex rel. v. Trimble, supra.
On a petition presented in the Juvenile Court of Jackson County by A.W. Sipe, Juvenile Officer, that court adjudged Young Campbell, an infant four years of age, to be a neglected child, suffering from the cruelty and depravity of his mother, Frances B. Campbell, and ordered that he be made a ward of the court and remanded him to the custody of the Probation Officer until a suitable home could be found for him.
Frances B. Campbell, mother of the child, filed a motion for rehearing in the case, which was overruled, and then filed an affidavit and application for an appeal to this court, which application was denied. She then brought a proceeding in this court, seeking by habeas corpus to recover the custody of the child, which proceeding was determined against her. [In re Campbell, 323 Mo. 757, 19 S.W.2d 752.] We held, however, that she had a right to appeal from the judgment of the Juvenile Court. Then Frances B. Campbell applied to a judge of this court, under Section 1474, for a special appeal and her appeal was granted. A bill of exceptions was filed in the Juvenile Court containing the evidence taken in the original proceeding, and a transcript of the bill is on file in this court.
I. The respondent has filed a motion to dismiss this appeal and that motion was taken with the case November 15, 1929. The first ground of said motion is that when the special appeal allowed by one of the judges of this court, under Section Special Appeal: 1474, there was no copy of the record filed in Dismissal. this court. That application for appeal was filed immediately after the rendition of the opinion In re Campbell, supra. This court had before it the record in that case, identically the same record as in this case, which showed the proceeding in the Juvenile Court of Kansas City, the determination of the matter and the erroneous denial of appeal by that court.
Section 1474 provides that no order granting an appeal by such court or judge shall be made "unless it appears from an inspection of a copy of the record that error was committed by the trial court against the party applying for the order, and materially affecting the merits of the action."
The point made in the motion is that the judge who granted the special appeal did not discover error in the record. We do not understand that the respondent in such a case can inquire into the state of mind of the judge who grants a special appeal, and can be heard to say that to such judge no error appeared in the record. If there is no error in the record that fact may be determined upon this appeal; it is not determinable as a matter which denies the right to entertain an appeal.
The second point in the motion is that this court has not jurisdiction of an appeal of proceedings of the Juvenile Court of Jackson County, but that such jurisdiction is lodged in the Court of Appeals unless a constitutional question is timely raised. The appellant does raise here two constitutional questions. One is that the act under which this proceeding was had, Article VI, Chapter 21, Revised Statutes 1919, is made to apply only to counties having fifty thousand inhabitants or more, and therefore denies equal protection of the laws.
It is further claimed in the motion to dismiss that the constitutionality of the Juvenile Act under which this proceeding was had was not raised at the first opportunity because nothing appears in the record until the motion for new trial was filed. At the same time the respondent asserts that the record of the proceeding is not properly here so that we can determine whether a constitutional question was raised at any stage of the proceeding.
Article VI of Chapter 21 of the statute relating to Juvenile Courts and counties having fifty thousand inhabitants or more provides in Section 2594, Revised Statutes 1919, that summons shall be issued and returned, and "the court shall proceed to hear the case in a summary manner, and if it shall determine that the child is a `neglected child' within the definition thereof contained herein, shall enter its order or judgment accordingly under the provisions of this article."
There is no provision in this section, nor in any other part of the Juvenile Act, for any pleadings in the case. The proceeding is entirely informal and whether a constitutional question was raised would not appear in the record. It would not necessarily appear in the appellant's application for appeal in the circuit court, which was denied, nor would it necessarily appear in an application for appeal in this court. We think, therefore, that this court had jurisdiction of the cause. The motion to dismiss is overruled.
II. The precise point which the appellant makes against the constitutionality of the Juvenile Act relating to neglected and delinquent children in counties having fifty thousand inhabitants or over is that it is a different definition of a Difference in neglected child from that in the act relating to Definitions. children in counties having less population than fifty thousand. The definition of a neglected child, Section 2591 of the former class is, any child under the age of seventeen years who is destitute or homeless or abandoned, or dependent upon the public for support, or who habitually begs or receives alms, or who is suffering from the cruelty or depravity of its parents or other persons in whose care it may be. The definition of a neglected child in Section 1135, in counties less than fifty thousand, is one under the age of seventeen years who is homeless or abandoned, or who habitually begs or receives alms or is found living in a house of ill fame, or with a vicious or disreputable person, or who is suffering from the depravity of its parents or other persons in whose care it may be. On these slight differences the appellant claims that he is denied the equal protection of the laws under the Fourteenth Amendment to the Federal Constitution. This contention is based upon the opinion of this court in State v. Gregori, 318 Mo. 998, 2 S.W.2d 747, where it was held that an amendment to Article VI, Chapter 21, relating to juveniles in counties of more than fifty thousand was unconstitutional, because it raised the age limit from seventeen to eighteen years, thus making a criminal of a person between seventeen and eighteen years of age in one county, who would be merely a delinquent in a county adjoining. This court has held that the two acts, Article VI, Chapter 21, and Article V, Chapter 11, as they now read, are not in violation of the Fourteenth Amendment to the Federal Constitution. [State v. Damico, 4 S.W.2d 424; State ex rel. Boyd v. Rutledge, 13 S.W.2d 1061.] The different conditions which surround a boy or girl in large counties are quite different from those in small counties, and hence the slight difference in the definitions of a neglected child and in the method of dealing with them as reflected in the definitions.
III. Appellant further complains that he was tried in violation of his right to a trial by jury under Article II, Chapter 28, of the Constitution. We do not find in the record that Young Campbell, nor anyone representing him, demanded a jury Jury trial at any part of the proceeding. So there is no Trial. error, even if in this kind of a case, where he was not charged with a crime, but was adjudged a ward of the court for his own protection, he would be entitled to a trial by jury.
IV. At the time the appeal was granted this court had before it only the record proper and the record shown in In re Campbell, 19 S.W.2d 752. After the appeal was taken a bill of exceptions was filed. The respondent asserts that an appeal Errors granted under Section 1474, Revised Statutes 1919, Considered. is a special appeal, and on a hearing of such appeal the court can only consider errors apparent in the record at the time the appeal is taken, and cannot consider errors in a bill of exceptions filed subsequent to the taking of an appeal. This position is supported by Brockman v. United Railways, 271 Mo. 696, l.c. 701, and a ruling later approved by this court in Buerck v. Mid-Nation Iron Products Co., 245 S.W. l.c. 49-50. If that ruling is applied here then the appellant took her appeal prematurely; she should have waited until the bill of exceptions was filed so it could be presented as a part of the record. The ruling in the Brockman case would result in some inconveniences and awkward situations. For instance, an appeal might be granted under Section 1474 from an error perfectly apparent in the record as it existed at that time, while a bill of exceptions filed subsequently, thus becoming a part of the record, might show that no error at all was committed. This is a condition which one applying for such an appeal must take into consideration.
Yet we are unable to find any sufficient reason for departing from the ruling in that case. The record proper recites that the Juvenile Court, after hearing the evidence and being fully advised, finds that Young Campbell is a neglected child within the meaning of the statute and is suffering from the cruelty and depravity of his mother, Frances B. Campbell. To the validity of that record no objection is presented except the constitutional questions which have been disposed of above.
The court, however, under Section 2607, Revised Statutes 1919, retains jurisdiction of the case, and under Section 2611 may compel the parents of such child to support it. The court therefore may fully consider the matter again, and the evidence may be preserved in the manner to be considered on appeal if one should be taken. The mother now being in charge of Young Campbell, and having been so since this appeal was taken by giving a supersedeas bond, her treatment of the child during the time since the appeal was taken would be of vital importance in determining whether the child should be restored to her.
The judgment accordingly is affirmed. All concur.
The appellant's motion to modify the opinion is sustained and the opinion is modified to conclude as follows:
The judgment is affirmed and the cause remanded with directions to the trial court to take evidence and hear evidence of appellant for the purpose of determining whether appellant Frances B. Campbell is now a fit person to have charge and custody of Young Campbell. All concur.