DOYLE, P. J.
(after stating the facts as above). Counsel for petitioner contends that upon the record showing that no preliminary complaint against him was ever filed in the county court of Grady county, and that no investigation was ever had before said court or the judge thereof sitting as a juvenile court concerning the charge of murder before the filing of the information in the district court of said county charging the petitioner with said crime, said district court was without power or jurisdiction to arraign him upon said information or require him to plead thereto, and was without jurisdiction to render the judgment and sentence in execution of which, under the commitment issued thereon, the petitioner has since been and is now held in custody by the warden of the state reformatory. The act of March 24, 1909, creating juvenile courts, in part provides as follows:
“The words ‘delinquent child’ shall include any child under the age of sixteen years who violates any law of the United States, or of this-state, or any city .or town ordinance.” (Section 4412, Rev. Laws 1910.)-
“The county courts of the several counties of this state shall have jurisdiction in all cases coming within the terms and provisions of this article.” (Section 4418, Rev. Laws 1910.)
“In all counties a special record book shall be kept by the court for all cases coming within the provisions of .this article, to be known as the ‘juvenile record’ and the docket or calendar of the court upon which shall appear the case or cases under the provisions of this article, shall be known as the ‘juvenile docket’ and for convenience, the court in the' trial and disposition of such cases, shall be called the ‘juvenile court.’ ” (Section 4414, Rev. Laws 1910.)
“Every child who shall have been adjudged delinquent, whether allowed to remain at home, or placed in a home, or committed to an institution, shall continue to be a ward of the court until such child shall have been discharged as such ward by order of court, or shall have reached the age of twenty-one years, and such court may, during the period of wardship, cause such child to be returned to the court for further or other proceedings, including parole, or release from an institution: Provided, however, that notice of all applications to the court for such parole or release shall be given to the superintendent of such institution at least ten days before the time set for the hearing thereof, or the consent, in writing, of such superintendent to such parole or release shall be filed. The court may, however, in its discretion cause such child to be proceeded against in accordance with the laws that may be in force governing the commission of crime.”. (Section 4424, Rev. Laws 1910.)
In the case of
In re Powell,
6 Okla. Cr. 495, 120 Pac. 1022, this act is construed. Upon the question here presented it was said by this court, speaking through Armstrong, J.:
“The Legislature in its wisdom by this law says that a child under sixteen years of age cannot be guilty of the commission of a crime, except in cases where it is shown that such child knew the wrongfulness of his. acts at the time they were committed. The acts committed by such' child, which in an adult would be a crime, under this statute, constitute juvenile delinquency only, except in cases of a serious character, when the juvenile court is authorized by the act,
supra,
in its discretion, to causé such child to be proceeded against -in' accordance with the law that may be in force governing the commission of crime. Prior to the enactment of the law in question, the statutes provided: ‘All persons are capable of committing crimes, except those belonging to the following classes: First, Children under the age of seven years. Second. Children over the age of seven years, but under
the age of fourteen years, in the absence of proof that at the time of committing the act or neglect charged against them, they knew its wrongfulness.’ (Section 2034, Snyder’s Stat.) The juvenile court law under consideration, in effect, provides that children under the age of sixteen are incapable of committing crime. But, in order that no great wrong should be done to society, the Legislature took the precaution to provide that a child brought before the juvenile court on a charge of delinquency, such court might, in its discretion, cause such child to be proceeded against in accordance with the law governing the commission of crime. (See last clause in section 4414,
supra.)
This provision contemplates an investigation by the juvenile court of the acts complained of with the view of determining whether or not the child committed them, and, if so, whether or not he knew the wrongfulness thereof in a criminal sense. And should the court -find affirmatively, it is then within its discretion, under the law, to hold such child to be proceeded with in the manner provided by law in a court having competent jurisdiction of the offense committed, certifying to such court both its finding as to probable cause, and that the child knew the wrongfulness thereof. The finding of the juvenile court, or the county judge sitting as such, that the child knew the wrongfulness of his act, and was capable of committing the offense, and did commit it, does not relieve the state of the burden of proving that the child knew the wrongfulness of his act at the time of the commission thereof, upon the trial before a jury in a court of competent jurisdiction, as provided in subdivision 2 of section 2034, Snyder’s Statutes. The effect the juvenile court law under consideration has on said subdivision is simply to change the word ‘fourteen’ to ‘sixteen,’ subsequent to the foregoing proceedings.”
This is not a new provision. By the ancient Saxon law the age of 12 years was established for the age of possible discretion, when first the understanding might
open; and from thence until the offender was 14, it was
a etas pubertati próxima,
in which the child might or might not be guilty of a crime, according to his natural capacity or incapacity. By the common law as it has stood at least ever since the time of Edward III, the capacity for committing a crime within certain limits of age is not so much measured by years and days, as by the strength of the delinquent’s understanding and judgment. Bl. Comm. 23. In all such cases the evidence of that malice which is to supply age ought to be strong and clear beyond all doubt and contradiction. 4 Bl. Comm. 24. Under the provisions of this act, a child under 16 years of age cannot be guilty of the commission of a crime, except in cases where it is shown and determined by the juvenile court of the county wherein the crime is alleged to have' been committed that such child knew the wrongfulness of its acts at the time they were committed, and such a determination is a necessary prerequisite to the jurisdiction of a district court to try a child under the age of 16 years upon an information charging a felony, and in addition thereto the child so charged must have been by the judge of said court, sitting as an examining and committing magistrate, held to answer before the district court.
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DOYLE, P. J.
(after stating the facts as above). Counsel for petitioner contends that upon the record showing that no preliminary complaint against him was ever filed in the county court of Grady county, and that no investigation was ever had before said court or the judge thereof sitting as a juvenile court concerning the charge of murder before the filing of the information in the district court of said county charging the petitioner with said crime, said district court was without power or jurisdiction to arraign him upon said information or require him to plead thereto, and was without jurisdiction to render the judgment and sentence in execution of which, under the commitment issued thereon, the petitioner has since been and is now held in custody by the warden of the state reformatory. The act of March 24, 1909, creating juvenile courts, in part provides as follows:
“The words ‘delinquent child’ shall include any child under the age of sixteen years who violates any law of the United States, or of this-state, or any city .or town ordinance.” (Section 4412, Rev. Laws 1910.)-
“The county courts of the several counties of this state shall have jurisdiction in all cases coming within the terms and provisions of this article.” (Section 4418, Rev. Laws 1910.)
“In all counties a special record book shall be kept by the court for all cases coming within the provisions of .this article, to be known as the ‘juvenile record’ and the docket or calendar of the court upon which shall appear the case or cases under the provisions of this article, shall be known as the ‘juvenile docket’ and for convenience, the court in the' trial and disposition of such cases, shall be called the ‘juvenile court.’ ” (Section 4414, Rev. Laws 1910.)
“Every child who shall have been adjudged delinquent, whether allowed to remain at home, or placed in a home, or committed to an institution, shall continue to be a ward of the court until such child shall have been discharged as such ward by order of court, or shall have reached the age of twenty-one years, and such court may, during the period of wardship, cause such child to be returned to the court for further or other proceedings, including parole, or release from an institution: Provided, however, that notice of all applications to the court for such parole or release shall be given to the superintendent of such institution at least ten days before the time set for the hearing thereof, or the consent, in writing, of such superintendent to such parole or release shall be filed. The court may, however, in its discretion cause such child to be proceeded against in accordance with the laws that may be in force governing the commission of crime.”. (Section 4424, Rev. Laws 1910.)
In the case of
In re Powell,
6 Okla. Cr. 495, 120 Pac. 1022, this act is construed. Upon the question here presented it was said by this court, speaking through Armstrong, J.:
“The Legislature in its wisdom by this law says that a child under sixteen years of age cannot be guilty of the commission of a crime, except in cases where it is shown that such child knew the wrongfulness of his. acts at the time they were committed. The acts committed by such' child, which in an adult would be a crime, under this statute, constitute juvenile delinquency only, except in cases of a serious character, when the juvenile court is authorized by the act,
supra,
in its discretion, to causé such child to be proceeded against -in' accordance with the law that may be in force governing the commission of crime. Prior to the enactment of the law in question, the statutes provided: ‘All persons are capable of committing crimes, except those belonging to the following classes: First, Children under the age of seven years. Second. Children over the age of seven years, but under
the age of fourteen years, in the absence of proof that at the time of committing the act or neglect charged against them, they knew its wrongfulness.’ (Section 2034, Snyder’s Stat.) The juvenile court law under consideration, in effect, provides that children under the age of sixteen are incapable of committing crime. But, in order that no great wrong should be done to society, the Legislature took the precaution to provide that a child brought before the juvenile court on a charge of delinquency, such court might, in its discretion, cause such child to be proceeded against in accordance with the law governing the commission of crime. (See last clause in section 4414,
supra.)
This provision contemplates an investigation by the juvenile court of the acts complained of with the view of determining whether or not the child committed them, and, if so, whether or not he knew the wrongfulness thereof in a criminal sense. And should the court -find affirmatively, it is then within its discretion, under the law, to hold such child to be proceeded with in the manner provided by law in a court having competent jurisdiction of the offense committed, certifying to such court both its finding as to probable cause, and that the child knew the wrongfulness thereof. The finding of the juvenile court, or the county judge sitting as such, that the child knew the wrongfulness of his act, and was capable of committing the offense, and did commit it, does not relieve the state of the burden of proving that the child knew the wrongfulness of his act at the time of the commission thereof, upon the trial before a jury in a court of competent jurisdiction, as provided in subdivision 2 of section 2034, Snyder’s Statutes. The effect the juvenile court law under consideration has on said subdivision is simply to change the word ‘fourteen’ to ‘sixteen,’ subsequent to the foregoing proceedings.”
This is not a new provision. By the ancient Saxon law the age of 12 years was established for the age of possible discretion, when first the understanding might
open; and from thence until the offender was 14, it was
a etas pubertati próxima,
in which the child might or might not be guilty of a crime, according to his natural capacity or incapacity. By the common law as it has stood at least ever since the time of Edward III, the capacity for committing a crime within certain limits of age is not so much measured by years and days, as by the strength of the delinquent’s understanding and judgment. Bl. Comm. 23. In all such cases the evidence of that malice which is to supply age ought to be strong and clear beyond all doubt and contradiction. 4 Bl. Comm. 24. Under the provisions of this act, a child under 16 years of age cannot be guilty of the commission of a crime, except in cases where it is shown and determined by the juvenile court of the county wherein the crime is alleged to have' been committed that such child knew the wrongfulness of its acts at the time they were committed, and such a determination is a necessary prerequisite to the jurisdiction of a district court to try a child under the age of 16 years upon an information charging a felony, and in addition thereto the child so charged must have been by the judge of said court, sitting as an examining and committing magistrate, held to answer before the district court. The return in this case shows that no such proceedings were had before the juvenile court of Grady county, and that no evidence was taken before said court or the judge thereof as to the petitioner’s'capacity to commit the crime charged in the information which was filed in the district court of Grady county charging the petitioner with the crime of murder. It follows that the district court of Grady county was without jurisdiction of said information, and was without jurisdiction to render the judgment and sentence under which the petitioner
is now held in custody. It further appears from the record that the petitioner was convicted of the crime of manslaughter under said information upon his plea of guilty; that he did not have the benefit of counsel, and ho evidence was taken as to the petitioner’s capacity to commit the crime charged in the information, or the degree of said crime to which he entered his plea of guilty.' The child’s plea of guilty might be evidence that the petitioner committed the act charged, but was no proof of the capacity of the petitioner to understand the wrongfulness of the act charged at the time it .was committed. The presumption of incapacity can only be rebutted by affirmative proof that the child had capacity to understand the wrongfulness of the act charged against him.
By numerous decisions of this court it is held that the jurisdiction of a court or judge to render a particular judgment or sentence by which a person is imprisoned is a proper subject of inquiry on
habeas corpus,
and where it is shown by the return that the petitioner is detained by virtue of a committment issued upon a' judgment of a court of competent jurisdiction, such showing is
prima facie
only of the fact, and may be impeached by the record of the case, for the purpose of showing that the court or judge was without jurisdiction or power to render the judgment or issue the commitment, and where the record shows want of jurisdiction to render the judgment or issue the commitment, the petitioner under - such showing is entitled to his discharge.
For the reasons stated, we are of the opinion that the judgment and sentence of the district court of Grady county in this case is illegal and void, and that the execution of said judgment deprives the petitioner of his
liberty without due process of law. It is therefore ordered that the petitioner be discharged from imprisonment under said judgment and commitment, and that he be remanded to the custody of the sheriff of Grady county to abide the further action of the juvenile court of said county.
ARMSTRONG and BRETT, JJ., concur.