# Wade v. Warden of State Prison > Supreme Judicial Court of Maine · April 10, 1950 · 145 Me. 120 URL: https://www.frixlaw.com/law-library/cases/9758710 ## Case - **Full name:** Franklin Delano Wade Petitioner for Writ of Habeas Corpus vs. Warden of the State Prison - **Court:** Supreme Judicial Court of Maine - **Decided:** April 10, 1950 - **Citations:** 145 Me. 120; 73 A.2d 128 - **Precedential status:** Published - **Opinion:** Dissent by Murchie - **Judges:** Murchie, Thaxter, Merrill, Nulty, William, Son, Williamson - **Cited by:** 20 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9758710 ## Opinion text Murchie, C. J., further dissenting. The concurring opinion of Mr. Justice Merrill having been written to set forth the fundamental reasons underlying the opinion from which my dissent is recorded, it seems proper for me to note that, despite my entire accord that the issue is most important and my complete recognition of the principle that trial in a court having no juris *167 diction is meaningless, I cannot see that he has supplied the deficiencies of the principal opinion as I see them. That principle was declared by this court in State v. Bonney, 34 Me. 223 . It is in accord with that controlling all the decisions cited from states having juvenile courts which have set aside convictions of children not taken before such courts, on appeal or by habeas corpus. Our own case, State v. Bonney, supra, presents a statute which vested an exclusive original jurisdiction that was final, except for appellate proceedings, R. S., 1840, Chap. 166, Sec. 2. Our court emphasized the fact that the Legislature had provided no machinery for the transfer of any case within it to another court. R. S., 1944, Chap. 133, Sec. 6 does provide such machinery. The court of exclusive original jurisdiction purported to use it. That cannot be said of any of the cases cited by Mr. Justice Merrill. My views may be controlled, as the quotation from Wharton’s Criminal Law intimates, by over-conservatism, but it is a conservatism which stems from recognition of the limitations intended to be placed on judicial power by our Constitution rather than from “the dying torch of the Dark Ages.” Only legislative power, in my view, can establish a system of separate juvenile courts. That the court is exercising a legislative function, as distinguished from a judicial one, seems to be conceded in the statement made by Mr. Justice Merrill near the close of the third paragraph from the end of his opinion, that: “The legal effect of such action is exactly the same as though there were a separate juvenile court * * :¡í 99 The emphasis is mine. Our Legislature has refused to give us such courts. This court both declares and supplies the deficiency. Mr. Justice Merrill refers to what he calls the refusal of the Portland Municipal Court to exercise jurisdiction over the offense of the petitioner. Undoubtedly it, refused to exercise its jurisdiction to adjudicate that the *168 petitioner in the killing with which he was charged was guilty of juvenile delinquency. Rightly so, in my view. Our Legislature has vested a considerable exclusive original jurisdiction over juvenile delinquency in our municipal courts, or the judges thereof, but has made it entirely clear, at all times, that children might be held for a grand jury by such courts. Granting the desirability of rehabilitating children whose feet have strayed to wayward paths, it has provided that children may be punished as criminals, when circumstances require such action, and has left to our municipal courts the determination whether a particular offense of a particular child should, or should not, be treated as an act of juvenile delinquency. I can understand why the State has an interest sufficient to deprive a child of the right to waive such a jurisdictional requirement as age, but not why a court would refuse one sixteen years of age, on the advice of able counsel, the right to recognize that the inevitable result of a municipal court hearing on a charge which might involve either juvenile delinquency or crime would be that the child would be held for the grand jury. What distinguishes our law seeking to salvage children from paths of crime from that of any other state is the express provision of the chapter which carries it that a hearing may be waived “in all prosecutions before municipal courts.” R. S., 1944, Chap. 133, Sec. 24. Certainly when a child is indicted, after being held for a grand jury, it must be recognized that his prosecution started in the municipal court which had exclusive original jurisdiction of his alleged offense. It can hardly be a tenable view that “the broad principles of public policy which underly the juvenile court acts” (quoting Mr. Justice Merrill) of other states, assuming that all except Maine have recognized them, have imposed a constitutional limitation on legislative power in Maine which prohibits legislation providing that a child may waive a hearing of the issue whether a felonious and wilful killing charged against him constitutes nothing, more than an act of juvenile delinquency. *169 It does not seem to me that Mr. Justice Merrill has made the future clear with reference to either the petitioner herein or children charged, hereafter, in our municipal courts, with crimes for which they should be prosecuted as criminals. There is intimation that the petitioner has no assurance against a new prosecution and that a municipal court, adjudicating that a child is guilty of juvenile delinquency, supplies all jurisdictional requirements for holding him for a grand jury by necessary implication. On the first point the statements do not seem conclusive because unlike one tried in a court having no jurisdiction of his offense, the petitioner has been arraigned in one which had. The issue as to whether he can be arraigned again can arise. On the second a single thought seems controlling. It seems entirely inconsistent to require a court to find a respondent guilty of an offense constituting juvenile delinquency as a preliminary to holding him for a grand jury that, if indicted, a traverse jury may determine his guilt or innocence. If a case arises hereafter, in which a child adjudicated guilty of juvenile delinquency and held for the grand jury is acquitted of the crime to which the adjudication related, the adjudication of guilt of juvenile delinquency will not be eliminated. In this connection I note the closing statement of Mr. Justice Baker of the Rhode Island Court in Ex Parte Albiniano, 62 A. (2nd) 554 at 558: “appropriate proceedings should be had * * * to clear the record * * *." This court has no machinery by which in such a case the record can be cleared. It may be that a system of juvenile courts established by the Legislature would make provision for such a contingency. When courts legislate they have no power to provide therefor. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9758710. Public record. Not legal advice.