Anderson v. Walker

CORN, Vice Chief Justice

(dissenting).

I concur in the majority opinion in so far as it refers to, and is applicable to case No. 37,953, wherein Patricia Ann Anderson is petitioner. However I respectfully dissent thereto in so far as it refers, and is applicable to case No. 38,173, wherein Jim E. Kirksey is the petitioner.

I respectfully suggest that the commission of crime by children is a growing problem, particularly in our larger centers of population. The handling of the problem so that the wayward child may be fitted into our community as a law respecting, and a law abiding citizen is a matter of public concern. The growth of a child into a criminal as a result of his higher education in crime, while a prisoner with hardened criminals in one of our penal institutions, is what the legislature is seeking, rightfully, to prevent.

10 ©.S.1951 §§ 101 through 114, which Act with amendments has been in effect as the legislative policy for the care and protection of dependent, neglected and delinquent children of our state since prior to statehood, provide that the words "delinquent child" shall include any male child under the age of sixteen years and any female child under the age of eighteen years who violates any law of the United States, or of this State or any city or town ordinance. Such Act then provides that a delinquent child may be proceeded against, fixing jurisdiction in the County Courts in all such cases, with right for jury if demanded, provides for reports to the Commission of Charities and Corrections, the filing of a petition by a reputable person, issuance and service of summons, and a private hearing in the discretion of the County Court. Provision is further made for the care and custody of the child as ward of the court until discharged or shall have reached the age of twenty-one.

Section 114, supra, provides, the Act should be liberally construed to effectuate the purpose of the Act. See In re Greenback, 207 Ok1. 30, 246 P.2d 733, 734 .

The purport of that Act is the rehabilitation of a delinquent child, as defined therein, together with the care and protection of dependent and neglected children as well as delinquent children.

The procedure prescribed is that when it develops in a criminal prosecution that one charged with a crime is a male child under the age of sixteen years, or a female child under the age of eighteen years, a reputable citizen of the county forthwith file a petition before the county court which will cause the child to be brought into that *577 court, and after hearing before jury if dee manded, if it is determined to be a delinquent child, within the purview of the Act, the child becomes a ward of the court as provided therein and the criminal prosecution is suspended. If, however, such delinquent child is determined to possess sufficient mental capacity to appreciate the wrongfulness of its acts, such court may direct that such child be prosecuted for the crime in a court of competent jurisdiction. Ex parte Lewis, 85 Okl.Cr. 322 , 188 P.2d 367 .

The jurisdiction of the Juvenile Court, prescribed by 20 0.S.1951 § 771 et seq. as amended, together with the provisions thereof, indicate that such act has the same basic purposes, the rehabilitation of children, and the care and protection of dependent neglected children. The Act gives such court jurisdiction of all children under the age of eighteen years, who violate any state law or municipal ordinance. Such Act in no way attempts to define the words "delinquent child" or in any manner change the meaning thereof as set forth in 10 O.S. 1951 § 101. It merely requires that if during the pendency of a criminal or quasi criminal charge against any person in any other court of such county, it shall be ascertained that the person was under the age of eighteen years at the time of committing the alleged offense, it shall be the duty of such court forthwith to transfer the case to the juvenile court. After investigation the court may, in its discretion, retain jurisdiction or certify such child as a child capable of knowing, and to be held accountable for his acts, for criminal proceedings to any court which would have trial jurisdiction of such offense if committed by an adult.

With a more comprehensive approach occasioned by the needs of larger communities, the balance of such act, Sec. 771 et seq., is directed to the care, health and protection of a child.

The determination of the Legislature that courts of concurrent jurisdiction are necessary, or that those counties within certain population brackets require the establishment of a court with original jurisdiction as to matters that may be handled by another court in other counties is within its prerogative as outlined and defined by our Constitution. The fact that the juvenile court is given jurisdiction of the children, and in effect relieves the county court of such jurisdiction raises no constitutional inhibition. In effect such act is supplemental to, and not in conflict with Sec. 101 et seq., supra. The consideration of male children is extended to eighteen years. However, the meaning of a delinquent child remains as defined in Sec. 101, supra. The juvenile court in those counties to which the act or a similar act applies, and the county court in those counties where no such act applies still must determine what is best for the child and whether it is capable of knowing and to be held accountable for its acts in proper criminal proceedings.

20 0.S.1951 § 776 provides that the juvenile court shall have original jurisdiction of any child a resident of the county of the location of the court or of any child who is present in such county at the time. Thus it is apparent that if during the pendency of a criminal or quasi criminal charge against any person in any other court of such county it shall be ascertained that the person is a child as defined by the act, it shall be the duty of the court forthwith to transfer the case to the juvenile court. Such court has jurisdiction of any child who is present in the county. Thus we have a general application as to all persons coming within the Act.

However, it is contended that as to a male child the jurisdictional requirement extending to all children up to cighteen years of age is arbitrary and discriminatory since the general act applicable to the other counties requires male child sixteen years of age and above to be subject to the same penalty of the law as an adult.

Again it must be borne in mind the purpose of each Act, the end sought to be reached, however, always keeping in mind the constitutional restrictions and the equal protection of the law. In addition attention is directed to the fact that courts of competent jurisdiction have the duty of, and the power to determine the capability or lack of understanding of the nature of *578 their act of any person that comes before it.

Society requires children, as well as adults, to conform to the laws of the city, state and federal government. Yet experience tells us that in many instances children, by reason of inexperience, age and/or lack of training, fail to understand the consequences of their acts and their responsibility as members of a community. Thus it has been found with proper direction those children, who might become a permanent incorrigible or confirmed criminal, can be fitted into' the community as law abiding, responsible citizens.

Legislation to this end must liberally construe. The proceedings provided is neither criminal nor quasi criminal. Const. Art. II, Sec. 20, therefore has no application. Its purpose is designed to prevent, by reason of age and lack of understanding, any unjust application of the strict enforcement of the criminal laws with attention directed to the education of the child. In the communities within the purview thereof, a court with its responsibility directed thereto is created. In a manner of speaking, placing the responsibility on one specializing in that field.

Even though by virtue of 20 O0.S.1951 § 771 et seq., the juvenile court has jurisdiction of the child up to the age of eighteen, it is within such court's prerogative to determine the understanding of the child of crime committed and certify him for prosecution. Though those males over the age of sixteen do not come before it, the county courts, under See. 101 et seq., have the same right of determination, certification and deferment of prosecution. 20 O.S.1951 § 771 et seq., is directed to the basic needs of a larger community. It is the apparent legislative intent to reach a need developed by large population.

I, therefore, am of the opinion that the writ of mandamus should issue directing the Judge of the Court of Common Pleas to certify the case against Jim E. Kirksey, as well as the case against Patricia Ann Anderson, to the Juvenile Court of Tulsa County. |