Hewlett v. Probate Court

168 P.2d 77, 66 Idaho 690, 1946 Ida. LEXIS 160

• Court: Idaho Supreme Court
• Decided: March 27, 1946
• Docket: No. 7251.
• Status: Published

Opinions

AILSHIE, J.

January 30, 1945, the probation officer of Clearwater county filed complaint in the probate court, sitting as a juvenile court, against Marlin Hewlett, Duane Harvey, Monte Newell, Donald Anderson, Tommy Johnson and Guy Helm, minors, under the provisions of chapter 13, Title 31, I.C.A., and charged them with being juvenile delinquents and as such, breaking and entering store buildings, belonging to others, removing “from cars and other places property not their own, and did habitually wander the streets and highways at night and in the nighttime without being on any lawful business”; and praying that “each of them may be cared for and corrected according to law and as provided by Chapter Thirteen of Title Thirty-one Idaho Code Annotated of 1932.” On the same date, after an investigation made by the court, it was ordered that a formal hearing be had upon the information charging them with being juvenile delinquents, and that the parents be notified and served with notice of hearing.

The action against Duane Harvey was dropped as he was a resident of the state of Washington and was transferred to that state. The other minors, all under the age of eighteen years, were found to be residents of Clearwater county.

February 9, 1945, the probate court of Clearwater county, sitting as a juvenile court, made and entered a decree adjudging Marlin Hewlett, Monty Newell, Donald Anderson, Tommy Johnson and Guy Helm, minors, to be juvenile delinquent persons, under the provisions of Chap ter 13, title 31, I.C.A., and also adjudged and decreed that “each of them be and they each are committed to the Industrial Training School of Idaho at St. Anthony until they reach the age of twenty-one years or are sooner released from said school under the regulation thereof.” All statutory requirements prior to entry of decree were complied with. At the time of entering the decree the minors were all under the age of eighteen years. The findings of fact disclose that, during the latter part of 1944 and the early part of 1945, the minors, collectively, were engaged in the commission of a series of crimes consisting of burglaries, grand larcenies and robberies, committed in Nez Perce and Clearwater counties. All of the minors and their parents are residents of Clearwater county and were in court at the time of entry of the decree.

February 12, 1945, the parents of the minors, jointly and severally, appealed to the district court of Clearwater county from the decree of the juvenile court, committing the minors to the Idaho Industrial Training School, and from the whole thereof, upon questions of both law and fact. Also, on the same date, on application of the minors’ parents, a writ of review issued from the district court, directed to the probate court, with a return date of March 5, 1945, requiring the probate judge to certify and send up the record in the juvenile court, wherein the minors were adjudged delinquent persons and committed to the Idaho Industrial Training School. The respondent probate judge demurred to the sufficiency of the application and moved to quash the writ, which demurrer and motion were by the district court overruled and denied.

March 13, 1945, (filed March 15, 1945) the district court entered judgment affirming the decree of the juvenile court adjudging the minors to be delinquent persons, but holding that that part of the decree committing the minors to the Idaho Industrial Training School was a nullity. .

The appellants have appealed from the judgment, on the grounds that the complaint in the juvenile court did not state sufficient statutory grounds to give the court jurisdiction to adjudge the minors to be delinquent persons. The respondent cross-appealed from the judgment holding that the juvenile court had no authority to commit the minors to the Idaho Industrial Training School.

The appellants submit two assignments of error, to the effect that the district court erred in affirming the judgment of the probate court, that the juveniles are, and each of them, is, delinquent; and in remanding the matter to the probate court, sitting as a juvenile court for further proceedings; and erred in not vacating the order, judgment or commitment of the probate court in its entirety, and in not adjudging the entire proceedings, findings, judgment and orders of the probate court to be a nullity, for. the reasons and upon the same grounds as set forth in assignment numbered one.

Sec. 31-1301 provides: 1

Section 31-1302 vests the jurisdiction of juvenile delinquents in the probate court. 2

Section 31-1303 provides the procedure for charging delinquents and trial of the case. 3

These provisions of the statute were passed upon and. held to be constitutional in In re Sharp, 15 Ida. 120, 96 P. 563, 18 L.R.A., N.S., 886, and the Sharp case has been followed by this court ever since. (In re Small, 19 Ida. 1, 2, 116 P. 118; Jain v. Priest, 30 Ida. 273, 282, 164 P. 364; Allen v. Williams, 31 Ida. 309, 311, 171 P. 493; Martin v. Vincent, 34 Ida. 432, 435, 201 P. 492; In re Farnsworth, 46 Ida. 47, 49, 266 P. 421; Bannock County v. Coffin, 46 Ida. 531, 534, 269 P. 90; In re Allmon, 50 Ida. 223, 225, 294 P. 528; Kelley v. Prouty, 52 Ida. 743, 745, 19 P. (2d) 1061; Porter v. Estate of Porter, 54 Ida. 99, 103, 28 P. (2d) 898.

It seems clear that the “information” required by-sec. 31-1303 has reference to the conduct of the child proceeded against and is intended to “be summarily disposed of by the court” and is civil and paternal in character. (In re Sharp, supra; People v. Ross (Mich.), 209 N.W. 663; Burrows v. State (Ariz.), 297 P. 1029.) The proceeding does not partake of the nature .of a criminal information, as provided by the penal code (sec. 19-1201,1.C.A.).

“The procedure affecting custody or commitment of delinquent or dependent children is purely statutory, and it is not considered criminal or even quasi-criminal, or a proceeding according to the course of the common law or to the rules of chancery. According to some authorities the proceeding is a civil action, ... It is held to be a special proceeding of a civil nature,...”

(43 C.J.S., sec. 99, p. 240; Bryant v. Brown, 151 Miss. 398, 118 So. 184, 60 A.L.R. 1325; In re Santillanes, 47 N.M. 140, 138 P. (2d) 503, 510; Kahm v. People, 83 Colo. 300, 264 P. 718, 719; State ex rel Berry v. Superior Court, 139 Wash. 1, 245 P. 409, 45 A.L.R. 1530; Garner v. Wood, 188 Ga. 463, 4 S.E. (2d) 137; In re Morrison, 176 Okla. 55, 54 P. (2d) 198; Lueptow v. Schraeder, 226 Wis. 437, 277 N.W. 124. See, also, 23 Harvard Law Review, pp. 104-122, “The Juvenile Court,” by Julian W. Mack.)

The contention made by appellants, that jurisdiction was lacking in the probate court because the probation officer had charged the delinquents proceeded against with the commission of felonies, is thought to be unsound and unsupported by the record. The complaint of the probation officer charges the defendants with delinquency rather than with felonies and, as an explanation of what the delinquency consists in, sets up various and sundry offenses committed by them. The complaint in the juvenile court charges

“that Marlin Hewlett, Duane Harvey, Monte Newell, Donald Anderson, Tommy Johnson and Guy Helm and on or about the 20th day of January, 1945 and prior thereto and in the County of Clearwater and in the County of Nez Perce, state of Idaho, then and there being and each child being under the age of eighteen years and not then being an inmate of a State institution, or any institution incorporated under the laws of the State for Idaho for the care and correction of delinquent children, did wilfully, intentionally and maliciously, and in violation of Chapter 13 of Title 31, I.C.A. 1932 and with the intent to violate the laws of the State of Idaho, and each of them being incorrigible, and each of them did associate together and associate with persons not of good moral character, and did associate with thieves and other persons engaged in breaking and entering buildings belonging to others, namely the store of the Oud Pharmacy, the store of J. J. Johnson known as the Comer Store; the store of Wells Grocery store and the store of Holmes Hardware store and take and remove therefrom and did take and remove from cars and other places property not their own, and did habitually wander the streets and highways at night and in the nighttime without being on any lawful business and whereby and force of the statute in such case made and provided, the said child is and each of said children, is deemed a Juvenile Delinquent Person.”

The proofs, that the delinquency of these appellants was chiefly made up of violations of state law against burglaries and theft and other crimes, all go to unmistakably constitute their delinquency. The juvenile court has no criminal jurisdiction in delinquency cases. The proceeding in that court is one of a civil nature and is governed by chapter 13, title 31, I.C.A. Whereas, prosecution for a felony in the district court is governed by the penal code. In each court and case the public prosecutor is the attorney for the complainant. He may, in the first instance, think the case can be best disposed of by the delinquency court but, when the evidence is produced in court, he may conclude that a felony charge should be made in the district court under its criminal jurisdiction and proceed accordingly.

The 'fact that the parents were not made parties to the original proceeding in the delinquency court, does not affect the substantial rights of the parties or the merits of the controversy. The record discloses that the parents were notified of the proceeding and were in court at the time of the hearing, and participated in the proceedings. Moreover, the statute (sec. 81-1303, supra) provides that the procedure should be summary.

The probate court made a series of findings of fact and thereupon entered a decree, to the effect that the boys were juvenile delinquents and concluded:

“That all of the said boys were allowed and permitted to attend public dances and other resorts of questionable character and without and beyond the supervision of the parents, and are being neglected by their parents.

“NOW THEREFORE FROM THE FOREGOING FACTS IT IS ORDERED, ADJUDGED AND DECREED That the said juveniles, and each of them are found to be a juvenile delinquent person under the terms and provisions of the Statute found in Chapter 13, Title 31, I.C.A. of 1932.

“IT IS FURTHER ORDERED AND THE COURT SO FINDS THAT The parents of the said minors and each of them were summoned to appear at the said hearing.

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED That the said minors, Marlin Hewlett, Monty New-ell, Tommy Johnson, Donald Anderson and Guy Helm, and each of them be and they each are committed to the Industrial Training School of Idaho, at St. Anthony, until they reach the age of twenty-one years, or are sooner released from said school under the regulations thereof.

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED That you, Jack K. Conard, the sheriff of Clear-water County, Idaho, do take and safely deliver to said school, the said Marlin Hewlett, Monty Newell, Donald Anderson, Tommy Johnson and Guy Helm, and each of them, and the said juvenile delinquent persons, and each of them, are committed to your care and custody for that purpose.”

On writ of review to the district court, that court after hearing the matter entered a decree as follows:

“It is therefore adjudged that the judgment of the pro bate court that the said juveniles are, and each of them is, delinquent be, and the same here is, affirmed; that portion of the judgment committing said delinquents, and each of them, to the Industrial Training School be, and the same hereby is, adjudged a nullity and to be held for naught, and the matter is to be remanded to the probate court, sitting as a juvenile court, for such further proceedings as that court shall be advised are necessary and proper in the premises.”

It follows, from what has been said herein above, that the judgment of the district court affirming the probate court, “That the said juveniles, and each of them are found to be a juvenile delinquent person”, should be affirmed by this court, and it is so ordered. It also follows that the judgment of the district court, adjudging the order of the probate court, committing defendants to the Industrial Training School, to be a nullity, was erroneous and should be, and is hereby, reversed. The cause is remanded to the district court with direction to affirm the judgment of the probate court and remand the case to the juvenile court.

Budge and Givens, JJ., concur.

1 “31-1301. Delinquent child defined. — This chapter shall apply only to children under the age of eighteen years not inmates of a state institution, or any institution incorporated under the laws of the state, for the care and correction of delinquent children. The record of the census made by the clerk of the school district where any child was last enumerated shall be prima facie evidence of the age of such child for the purposes of this chapter. The words ‘delinquent child’ shall include any child under the age of eighteen years who violates any law of this state, or any city or village ordinance; or who is incorrigible or who knowingly associates with thieves, vicious or immoral persons; or who is growing up in idleness or crime, or who knowingly visits or enters a house of ill-fame; or who knowingly patronizes or visits any policy shop or place where gambling device is, or shall be operated; or who patronizes or visits any pool-room or bucket shop, or who wanders the streets in the nighttime without being on any lawful business or occupation; or who habitually wanders about any railroad yard or tracks, or who jumps or hooks on to any moving train, or enters any car or engine without lawful authority; or who habitually uses vile, obscene, vulgar, profane or indecent language, or is guilty of immoral conduct in public places or about any schoolhouse. Any child committing any of the acts herein mentioned shall be deemed a juvenile delinquent person, and shall be proceeded against as such in the manner hereinafter provided. A disposition of any child under this chapter, or any evidence' given in such cause shall not, in any civil, criminal or other cause or proceeding whatever in any court, he lawful or proper evidence against such child for any purpose whatever, excepting in subsequent cases against the same child under this chapter. The word ‘child’ or ‘children’ may mean one or more children, or the word ‘parent’ or ‘parents’ may mean one or both parents when consistent with the intent of this chapter.”

2 “31-1302. Jurisdiction of probate court. — Records and reports.- — ■ The probate courts of the several counties in this state shall have jurisdiction in all cases coming within the terms and provisions of this chapter. Record books shall be kept by the court for all cases coming within the provisions of this chapter to be known as the juvenile record, and the docket or calendar of the court upon which there shall appear the case or cases under the provisions of this chapter shall be known as the juvenile docket. Between the first and thirtieth days of October of each year the court shall submit to the governor a report in writing, upon blanks to be furnished by the state, showing the number and disposition of delinquent children brought before such court, together with such other useful information regarding such cases, and the parentage of such children, as may be reasonably obtained at the trials thereof: provided, that the name or identity of any such child or parent shall not be disclosed in such report, and that such report shall not be published at state expense.”

3 “31-1303. Information. — All proceedings under this chapter shall be by sworn information to be filed by the prosecuting attorney or a probation officer of the county in which the child proceeded against resides. Such information shall set forth, in a general way, the facts constituting any alleged delinquency, and also that such child is without the care or protection of a parent or guardian, or that any parent or guardian (naming iiim), is neglecting such child, or that such child is a juvenile disorderly person within the meaning of section 31-1311 of the Idaho Code. When the information states sufficient facts to apprise the court that a probable delinquency exists, or that the child proceeded against is a juvenile disorderly person, all- irregularities or defects of form therein must be disregarded and all technical pleas or objections thereto must be summarily disposed of by the court, and the court’s ruling thereon shall be final. It shall be unlawful for any officer to charge or collect any fees, or for any county or state to pay any fees for any service performed by any officer under the provisions of this chapter.”