In Re Cooper

16 N.E.2d 954, 58 Ohio App. 519, 26 Ohio Law. Abs. 651, 11 Ohio Op. 442, 1938 Ohio App. LEXIS 456

• Court: Ohio Court of Appeals
• Decided: February 14, 1938
• Status: Published

Opinions

OPINION

By HAMILTON, J.

This is an original action in habeas corpus, whereby the petitioner seeks release from custody under a judgment of conviction in the Municipal Court of Cincinnati. The conviction was for a violation of §12970 GC, in failing to provide his child with food, etc.

The claim is that §12970 GC, is repealed by §1639-62 GC, of the new Juvenile Code, Which provides:

“That existing §§1639 to 1683-1 GC, inclusive, and all other sections or parts of sections of the General Code inconsistent herewith, be, and the same are hereby repealed.”

The writer is of opinion that the clause “all other sections or parts of sections” has reference only to prior existing sections of the Juvenile Code, and did not have reference to the Criminal Code of Ohio, of which §12970 GC is a part. The new Juvenile Code is a codification of the former juvenile laws, and, as stated in §1639-59 GC of the act: “The purpose of this chapter is to secure for each child under its jurisdiction such care, etc.”

Sec 12970 GC, is a criminal statute. As was said by this court in the case of State ex rel v Hoffman, 23 Oh Ap 348: “The Juvenile Court does not deal with crimes. Its jurisdiction is limited to delinquent, neglected, or dependent minors, under the age of 18 years.”

In considering the question before us, the declared purpose of the Juvenile Chapter of the Code must be borne in mind. The child is the whole consideration.

Sec 12970 GC, is a section dealing with adult misdemeanors, and provides punishment for criminal offense.

It will be noted that the jurisdiction of tlie Juvenile Court is expressly limited to juvenile work “under this chapter”. It has not general jurisdiction under the act. Sec: §§1639-7, -8, -9, -10, -11, -12, -18.

The act does give jurisdiction to the juvenile court to punish persons having the custody of a child or who owe the duty of support. This is for the purpose of enforcing performance of that duty. While the juvenile court is-given original jurisdiction in such cases on complaint, that jurisdiction is not exclusive. See subsection B of §1639-16 GC. That the legislature did not intend the jurisdiction to be exclusive is borne out by the fact that in the preceding sub-section it is expressly provided that the jurisdiction shall be exclusive in the subject-matter contained in said sub-section “A”.

It is therefore clear that the petitioner is not entitled to his release on the ground that jurisdiction lies solely in the Juvenile Court. If §12970 is repealed, then there could be no offense charged thereunder, and the conviction would be void.

If §12970 GC, is repealed it must be as inconsistent with §1639-46 GC of the Juvenile Act, or that said section is repealed by implication.

The writer, as above stated, is of opinion that the repealing clause has reference only to juvenile matter and does not repeal all inconsistent provisions of the Ohio Criminal Code.

However that may be, no such inconsistency exists. True some of the matters constituting an offense in §12970 GC, appear in §1639-46 GC, but these were so provided in order to enforce protection for the child, which, as heretofore stated is the purpose of the act to which the Juvenile Court is limited. This certainly is not inconsistent with the Criminal Code, the jurisdiction of which lies in another court of different jurisdiction. It is suggested that the penalty provision is different, and, therefore, the older section is repealed. True, the maximum fine is higher in §1639-46 of the later Juvenile Code. But tne. declared purpose of the law must be borne in. mind. The Juvenile Act gives wider discretion to the Juvenile Court, as the purpose is not only to punish for past failure to duty, but to enforce the discharge of such duty to the child. While §12970 is simply punishment for criminal offense. 'The laws are different. The offenses are different. The laws are administered under different jurisdictions. If the offense is charged under §12970, the judgment upon conviction would be as therein provided. If the charge is under §1639-46 in the Juvenile Court, the judgment upon conviction would be as therein provided.

The rule is that repeal by implication is not favored. There is no reason to consider repeal by implication in the instant case.

Both sections can be given effect, each in the jurisdiction provided therefor, and no repeal of §12970 GC, results.

ROSS, PJ, Concurs. MATTHEWS, J, dissents in separate memorandum.