People v. Ross , 235 Mich. 433 ( 1926 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] I am not in accord with the opinion prepared by the Chief Justice. It may be well to state the case we have before us: Defendant believed that August LaPlant, a neighbor, had money, so, July 10, 1925, he took a rifle and shells from the family home, and, accompanied by his 11-year old brother, lay in wait alongside the railroad track over which he knew Mr. LaPlant would walk on his return from the city of Negaunee. When Mr. LaPlant had passed the hiding place, defendant stepped upon the railroad track and shot him in the back, killing him instantly. Then defendant robbed the body of a pocket-book containing upward of $50, rolled the body from the track, covered it with old railroad ties, went to a nearby lake and threw the rifle therein, marked the place, however, with a stick, remained in the woods until evening, and then returned home. Upon these unquestioned facts defendant was convicted of murder in the second degree. At the date of the commission of the offense, defendant lacked 35 days of being 15 years of age, and was then a ward of the juvenile court on account of a delinquency some few months previous. Proceedings against defendant were instituted in the juvenile division of the probate court July 15, 1925, and defendant sent to a place of detention pending consideration and determination of his case. While so under detention, the juvenile court, by order made August 26, 1925, waived jurisdiction that defendant might be charged with and tried for the felony in the circuit court.

In considering the provisions of the juvenile court act, we should keep in mind certain principles firmly established for the protection of life and the safeguarding of society. Our statutes define degrees of murder and prescribe punishments, but leave prosecutions to follow the course of the common law. Construction of the juvenile court act is aided by consideration of all of its provisions, and, when this is done, it clearly appears that it is the age of the child when charged in a criminal proceeding with a felony rather than his age at the time of the commission of a felony that is contemplated. At the time defendant committed the crime of murder, and when the proceeding was instituted in the juvenile court and when that court waived jurisdiction that a criminal prosecution might be instituted in the circuit court, there stood upon the statute book the following provision with reference to juvenile courts:

"Proceedings under this act shall not be deemed to be criminal proceedings and this act shall not prevent the trial by criminal procedure in the proper courts of children over fourteen years of age, charged with the commission of a felony." 1 Comp. Laws 1915, § 2012.

That provision clearly related to criminal proceedings in the circuit court against children over 14 years of age at the time of trial, if charged with the commission of a felony. The provision mentioned remained a part of the statute until amended by Act No. 117, Pub. Acts 1925, unless repealed by implication by amendment to other sections by Act No. 105, Pub. Acts 1923. The act of 1925 was not effective until the day after the order in the juvenile court waiving jurisdiction to the circuit court. Section 6, Act No. 105, Pub. Acts 1923, the proviso of which is cited by my Brother, does not, by implication, repeal the earlier provision of another section. That section, as amended, related only to children under the age of 17 years arrested upon criminal charges, for it provides that an officer making such an arrest shall file a petition in the juvenile court, and also makes it the duty of courts of criminal jurisdiction to transfer any pending case, in which it appears a child, being prosecuted therein, is under the age of 17 years, to the juvenile division of the probate court. Then comes the proviso my Brother thinks has reference to the age of defendant at the time he committed the felony, and which I think has reference to the age of defendant when he was charged, under criminal procedure, with the commission of the felony. The proviso bears relation solely to the section of which it is a qualifying part. Now, having in mind that section 6 relates solely to children arrested, and against whom a charge of crime is pending in the criminal courts, let us read the proviso:

"Provided, however, That in any case where a child over the age of fifteen years is charged with a felony, the judge of probate may, after investigation and examination, and upon motion of the prosecuting attorney, waive jurisdiction; whereupon it shall be lawful to try such child in the court having general criminal jurisdiction of such offense."

This clearly relates to a charge of crime pending in a court of criminal jurisdiction. Where a child under the age of 17 years and above the age of 15 years is charged in a criminal proceeding with a felony, and his age is ascertained during the pendency of a criminal case against him, the officer making the arrest, or the court ascertaining the age, must submit the matter to the juvenile court, and that court may, where a child over the age of 15 years is so charged with a felony, waive jurisdiction and permit the child to be tried in the court having general criminal jurisdiction of the offense. Section 02012, 1 Comp. Laws 1915, before mentioned, recognized the accountability of children over 14 years of age charged with the commission of a felony. Section 6, Act No. 105, Pub. Acts 1923, did not, by implication, repeal that section.

The learned circuit judge accepted the act of 1923 as it reads, and held the language that, in any case where a child over the age of 15 years is charged with a felony, the judge of probate may waive jurisdiction, contemplates the age at the time of the charge in a court of criminal jurisdiction, and not the age at the time of committing the felony. The circuit judge was right. Such construction avoids an astounding possibility attending my Brother's construction.

Suppose a youth, one day under 15 years of age, lies in wait, deliberately shoots and kills a neighbor, robs and hides the body, conceals the weapon, and is not discovered as the murderer until he is one day past the age of 17 years, then, if my Brother is right, the offender is beyond the reach of the law, for his age at the date of the crime fixes exclusive jurisdiction in the juvenile court, and that court has no jurisdiction over one arrested after reaching the age of 17 years, and he cannot be charged with a felony in the circuit court, for, at the date of the murder, he was not 15 years of age. There is no limitation of time within which one committing a murder must be charged therewith, and a construction of this statute which would bar prosecution of a murderer, if a youth a few days under 15 years of age when he committed the crime, and avoids discovery until he is above the age of 17 years, cannot have my sanction. My Brother's opinion would render this law a statute of limitations under the supposed case I have stated. Clearly the legislature never intended that, under any circumstances, a prosecution for murder should be barred.

The statute in question leaves with the judge of the juvenile court determination whether jurisdiction will be retained or be waived, thereby providing for the sifting of those who should respond for their crimes from those who can be weaned from vicious habits and turned to respectable citizenship. The juvenile law does not proceed on the theory that there is a period of irresponsibility in regard to crime or legal incapacity to commit crime by children, but leaves the well-known common-law rule in full force, except as to procedure against offenders under the age of 15 years at the time they are charged with a felony. Defendant was not, and could not be charged with or held for the crime of murder in the juvenile court; that court has no jurisdiction over criminal offenses, for the proceedings there are in no sense criminal. One is not in law charged with a felony, within the meaning of this statute, until the charge is made in a court having criminal jurisdiction. The juvenile law is commendable in purpose, and recognizes there may be felonies committed by vicious juveniles for whom the benign provisions of that law would prove wholly unsuited and against whom the criminal law should take its course.

We must assume the legislature employed the term "charged with a felony" in its sense applicable to a prosecution in a court of criminal jurisdiction. The term, in such sense, has been defined by the courts to mean an accusation of crime in a proceeding in a court having cognizance of criminal prosecutions.

A charge is the first step in the prosecution of a crime; it is an accusation in legal form, made in the course of procedure for the apprehension of an offender and his trial before a court of competent jurisdiction.

"A criminal charge, strictly speaking, exists only when a formal written complaint has been made against the accused and a prosecution initiated. It is true the popular understanding of the term is 'accusation,' and it is freely used with reference to all accusations, whether oral, in the newspapers, or otherwise; but in legal phraseology it is properly limited to such accusations as have taken shape in a prosecution. In the eyes of the law a person is charged with crime only when he is called upon in a legal proceeding to answer to such a charge. Mere investigation by prosecuting officers, or even the inquiry and consideration by examining magistrates of the propriety of initiating a prosecution, do not of themselves create a criminal charge." United States v. Patterson,150 U.S. 65 (14 Sup. Ct. 20).

The cases cited by my Brother, with two exceptions, relate to prosecutions in the criminal courts without preliminary proceedings in the juvenile courts. In Mattingly v.Commonwealth, 171 Ky. 222 (188 S.W. 370), the court held, under a statute somewhat different from ours, that the date of the crime governs the question of jurisdiction. We have stated our reasons for not following this decision.

In State v. Coble, 181 N.C. 554 (107 S.E. 132), the court followed the rule stated in Mattingly v. Commonwealth, supra. The statute of Tennessee involved in Sams v. State, 133 Tenn. 188 (180 S.W. 173), is not at all like ours. In State v.Thomas, 250 Mo. 189 (157 S.W. 330), the question of the jurisdiction of the juvenile court turned on the age of defendant at the time of the trial. In People v. Oxnam, 170 Cal. 211 (149 P. 165), it appears the statute of California made it the duty of judges, upon the suggestion that,

" 'the person charged is under 18 years of age,' * * * to suspend all proceedings and examine into the question of age, and if, 'from such examination, it shall appear to the satisfaction of said judge * * * that said person is under the age above specified,' he shall certify the matter to the juvenile court, and 'immediately thereupon all proceedings against the said person on said charge shall be suspended until said juvenile court shall issue its mandate * * * directing the court * * * to proceed.' "

That statute appears to relate to age at the time of trial. The same may be said of In re Tom, 17 Cal.App. 678 (121 P. 294), and Ex parte Parnell (Okla.Cr.), 200 P. 456.

While the waiver of jurisdiction was made at a time defendant had not yet been charged, under criminal procedure, with a felony, I think the waiver was valid.

The conviction is affirmed, and judgment advised.

SHARPE, STEERE, FELLOWS, and CLARK, JJ., concurred with WIEST, J.