State ex rel. Keast v. District Court of the Fourth Judicial District , 136 Mont. 367 ( 1959 )

MR. JUSTICE CASTLES

delivered the Opinion of the Court.

This is an original proceeding for a writ of mandamus or other appropriate writ directed to the judge of the District Court of the Fourth Judicial District in and for the County of Missoula. An alternative writ of mandamus was issued by this court directed to the district judge, since retired, or his successor, in which the district judge was ordered to permit the filing- of certain informations charging the crime of robbery against three named defendants, Gary Skoverski, Ken Pinto and Tom Miller, or show cause why he had not done so.

The county attorney of Missoula County had filed complaints in the justice court on September 30, 1959, charging the three previously named defendants with the crime of robbery, a felony. The defendants had answered to their true names and entered pleas of “guilty” to the charge of robbery. The jusdice court set bonds in the amount of $2,500 each and bound them over to the District Court.

Following this, the county attorney filed a petition for leave to file information direct in the District Court of Missoula •County. The information was filed, again charging a crime of robbery, and the District Court thereupon appointed an attorney to represent the defendants. It was made to appear that the defendants were under the age of eighteen years, Gary Skoverski being seventeen years and the defendants Pinto and Miller being over sixteen years of age when the crime was committed. The District Court was advised that the case was being filed under R.C.M. 1947, section 10-602, and that the crime and the defendants were persons included in the definitions of that section.

Subsequently the defendants, through their court appointed counsel, filed a motion to quash the information. The District Court heard the arguments of the county attorney, the relator herein, and the defense counsel, and granted the motion to quash. The motion to quash was based on the grounds that the court did not have jurisdiction to try the defendants except in the juvenile court.

Immediately thereafter, the relator county attorney moved the court for leave to file an additional information charging the defendants and each of them with the crime of robbery, a felony, as prescribed and outlined by R.C.M. 1947, section 10-602. This motion was denied.

The relator, the county attorney, then filed his petition before this court for a writ of mandamus or other appropriate writ to compel the District Court to permit the filing of the information.

From the information filed, and from the statements of the county attorney appearing from the record made before the District Court, it appears that the crime of robbery against the three youthful defendants came about as a result of the robbery of a lady residing in Missoula County, in which robbery the lady was tied and gagged and an amount of $39 taken from her.

On the day set by this court for return to its alternative writ, the respondent District Court filed an answer and return before this court, in which it is argued (1) that the writ of mandamus or other appropriate original proceeding writ is not proper because an appeal would lie from the order quashing the information and that therefore the original proceeding was not appropriate because an adequate remedy at law existed; and (2), the respondent court, sitting as a District Court, had no jurisdiction over a child between the ages of sixteen and eighteen who commits the crime of robbery unless he has in his possession a deadly weapon, and is carrying such deadly weapon with intent to assault allegedly as required by R.C.M. 1947, section 10-602. The answer and return also made it appear there existed no deadly weapon in the offense charged.

Therefore the questions posed for us are, first the appropriateness of the remedy and, second, a determination of the meaning of section 10-602.

This court did accept original jurisdiction in the matter, it having been made to appear that unless such proceedings were had by this court, the District Court would release the juvenile offenders. Whether or not the release of the juvenile offenders was an absolute release or a release to the proper juvenile authorities was not made to appear. But, from the record, it is apparent that the three defendants are youths from the State of California and not residents of this state, and in the event that an appeal was taken it might be necessary to institute extradition proceedings or in some other manner return the defendants before the courts of Montana. It also appears that a jury term is in the process of being conducted in Missoula County, and that a speedy trial could be had if the matter, as to whether or not the court had criminal jurisdiction over youths between the ages of sixteen and eighteen in the crime of robbery as charged, could be determined expeditiously.

We believe that a sufficient showing has been made that original proceedings before this court are proper in this case, and we will not make an extended discussion of the reasons therefor. We do note however that the respondent court in its answer and return suggests that the discretion of the District Court must be moved before an information is filed. It is apparent from the record herein that the county attorney did satisfy the District Court that the particular offense charged in the information was one of the felony charges enumerated in R.C.M. 1947, section 10-602 (see State ex rel. Dahl v. District Court, 134 Mont. 395, 333 Pac. (2d) 495, and that he had sufficient evidence to substantiate the filing.

It appearing then that the District Court refused to allow the filing of a new information, and granted an order quashing the old information, that it did so on the sole grounds of the interpretation of section 10-602, it being the court’s belief that it did not have jurisdiction to try the youthful offenders in the juvenile court for the crime of robbery committed without the use of a deadly weapon.

R.C.M. 1947, section 10-602, so far as is material to this action, provides as follows:

“(2) The words ‘delinquent child’include: * * *

“(b) A child who has violated any law of the state, provided, however, a child over the age of sixteen (16) years, who commits or attempts to commit murder, manslaughter, assault in the first degree, robbery, first or second degree burglary while having in his possession a deadly weapon, and carrying a deadly weapon or weapons with intent to assault, shall not be proceeded against as a juvenile delinquent but shall be prosecuted in the criminal courts in accordance with the provisions of the criminal laws of this state governing the offenses above listed. ’ ’ Emphasis supplied.

It is the respondent court’s contention that the words, “and carrying a deadly weapon or weapons with intent to assault,” is a phrase limiting and modifying the previously set out crimes of murder, manslaughter, assault in the first degree, robbery, and first or second degree burglary while having in his possession a deadly weapon.

The respondent court sets out the question as follows: ‘ ‘ However, in this subdivision, and following the last enumerated crime of first or second degree burglary while having in his possesison a deadly weapon, we find the following phrase, ‘and carrying a deadly weapon or weapons with intent to assault.’ If that phrase does not pertain to, add to, or modify the previously emomeratecl offenses, then did the Legislature intend by this language to create a new and hitherto unheard of crime?” Emphasis supplied.

The relator, county attorney in this case, seems to concede that the Legislature might be creating a new and “hitherto unheard of crime” as expressed by the respondent or that such phrase is ambiguous. However, such a suggestion and such a contention misses the mark completely. The crime of ‘ ‘ carrying a deadly weapon or weapons with intent to assault” is expressly enumerated in K..C.M. 1947, section 94-909, as a crime as follows:

‘‘Carrying deadly weapon with intent to assault — penalty. Every person having upon him a deadly weapon with intent to assault another is guilty of a felony, and, upon conviction thereof, shall be punished by imprisonment in the state prison for a term of not less than one year nor more than five years. ’ ’

It is immediately seen that the Legislature, in listing the crimes, listed certain statutory felonies and only modified that of first and second degree burglary to require the possession of deadly weapons. Otherwise the crimes are all statutory felonies and the listing of them indicates that the Legislature was thinking in terms of vicious personal crimes and crimes directed against the person as distinguished from crimes against property. It would seem that the Legislature had in mind that juveniles between the ages of sixteen and eighteen would be held for the juvenile court in all crimes not specifically enumerated; that as to those enumerated the sixteen to eighteen year age class would stand trial in the criminal courts.

We have examined the legislative history of section 10-602 which was passed as chapter 276, Laws of 1947, amending chapter 227, Laws of 1943, and find nothing in that history as reported in the House and Senate Journals or as shown in the mimeographed and printed bills with amendments thereto to indicate any other intent than the plain expression of the language used.

It appears from the House and Senate Journals of the Session of 1947, that chapter 276 was first introduced as Senate Bill No. 123. As first introduced, section 2 of the bill containing definitions included all felonies. This was amended to specifically name the statutory offenses, including the offense of carrying a deadly weapon with intent to assault. At this first amendment, the crime of robbery was not included. The bill, from the history, appears to have had a rough passage, having been killed at one stage. It was later recalled, amended again and sent to the House where again the section on definitions was amended and where the crime of robbery was specifically included for the first time. The bill was then sent back to the Senate where the House amendments were concurred in.

In addition to the fact that the specific statutory crime of carrying a deadly weapon with intent to assault was enumerated, the fact that the specific crime of robbery was later added, makes it appear to be unreasonable to follow the contentions of the respondent court herein that the phrase ‘ ‘ and carrying a deadly weapon or weapons with intent to assault” could be held to modify robbery or any of the other specifically listed crimes.

Thus, as to the crime of robbery, no possession of a weapon is necessary to be charged. The foregoing interpretation of the language used in section 10-602 makes each of the crimes and phrases used meaningful, and we believe the proper interpretation.

Because of what has been said heretofore it is apparent that the District Court should hear the matter as a criminal court, and that its order quashing the information filed was in error; its refusal to permit the filing of a new information was error and should be set aside; and the matter returned to the District Court for further proceedings not inconsistent with what has been herein said. The alternative writ heretofore issued is made permanent.

MR. CHIEF JUSTICE HARRISON and MR. JUSTICE ANGSTMAN concur.