Moquin v. State

140 A.2d 914, 216 Md. 524, 1958 Md. LEXIS 448

• Court: Court of Appeals of Maryland
• Decided: May 2, 1958
• Docket: [No. 210, September Term, 1957.]
• Status: Published

Opinions

Gray, J.,

by special assignment, delivered the opinion of the Court.

The appeal in this case involves a right of the state to-prosecute for crime a defendant who had theretofore been adjudged a delinquent minor by a juvenile court on a petition alleging the facts which constitute the basis for the criminal charge. The appellant contends (a) that such a prosecution constitutes “double jeopardy” for the defendant and (b) that the juvenile court statute does not permit that court to waive jurisdiction in favor of a criminal court after an adjudication of delinquency.

The appellant was brought before the Juvenile Court for Montgomery County, established under the provisions of Chapter 151 of the Acts of 1955, now codified as Sections-72 et seq. of Article 26 of the 1957 Code, on a petition which alleged that he was a delinquent child in that he set fires-to houses and that he committed an assault on William Moriarty. He was sixteen years old at the time of these alleged acts. This petition was filed on April 25, 1957, and the juvenile judge passed an order committing the appellant temporarily to the National Institute of Health. One month later this order was rescinded and the appellant was detained in the juvenile detention quarters "in Rockville until a hearing in that juvenile court on June 6, 1957. As a result of that hearing the appellant was found to be a delinquent child. He was placed under the jurisdiction of the court and he was committed to the University Hospital, Psychiatric Institute, Baltimore, Maryland, and the case was continued pending further order of the court. After some two months at the institute, the appellant eloped and thereupon his commitment to the institute was rescinded and the juvenile court on August 8, 1957, passed an order waiving jurisdiction and providing that the appellant be held for trial under the regular procedure of the Circuit Court for Montgomery County. Thereupon the appellant was charged in criminal informations with arson, burglary and assault with intent to murder. The appellant filed in each of these cases a motion to dismiss on the ground that the pending prosecutions would place him twice in jeopardy for the same offenses, and relied upon the proceedings in the juvenile court to preclude prosecution in the criminal court. This motion was denied and thereupon the appellant was tried, convicted, and sentenced in No. 2559, involving a charge of arson, and in No. 2562, involving a charge of assault with intent to murder. He was also convicted in the burglary case but sentence therein was suspended.

DOUBLE JEOPARDY

The appellant’s contention is that after a petition had been filed in a juvenile court charging him with being a delinquent minor by reason of having committed arson and an assault upon Moriarty, he was placed in jeopardy when at a hearing before the juvenile court he was adjudicated to be a delinquent minor and that he could not thereafter be prosecuted in a criminal court for the same offenses described in the juvenile petition. The determination of this question involves a decision as to whether a juvenile court proceeding places the minor in jeopardy in the common law sense of that phrase. The doctrine of double jeopardy is one of ancient origin and is designed to prevent the prosecution of a person a second time when he has already been subjected to the risk of “life and limb” in a prior trial. The concept clearly contemplates that • the action which bars a second prosecution must be one instituted in a court which has the power to convict and punish the person prosecuted for his criminal conduct. See 4 Blackstone’s Commentaries 335. Lewis Edition at pp. 1725-26.

The Maryland constitution contains no guaranty against double jeopardy and amendment 5 of the United States Constitution is not applicable to the state. Palko v. Conn., 302 U. S. 319, 82 L. Ed. 288. The subject of double jeopardy has been before this court on many occasions. In the case of State v. Shields, 49 Md. 301, at page 303 of the opinion, this Court said: “It has always been a settled rule of the common law that after an acquittal of a party upon a regular trial on an indictment for either a felony or a misdemeanor, the verdict of acquittal can never afterward, * * * be set aside and a new trial granted * * The matter was again before this court in Robb v. State, 190 Md. 641 and in that case the court reviewed the subject at some length in holding that a trial on appeal did not constitute double jeopardy. The matter was again before the court in Johnson v. State, 191 Md. 447. It seems clear from these authorities that the rule of double jeopardy is applicable only when the first prosecution involves a trial before a criminal court or at least a court empowered to impose punishment by way of fine, imprisonment or otherwise as a deterrent to the commission of crime. The question to be decided is whether the hearing before the Juvenile Court of Montgomery County subjected the defendant to the risk of these penalties. We answer this question in the negative. The juvenile act does not contemplate the punishment of children where they are found to be delinquent. The act contemplates an attempt to correct and rehabilitate. Emphasis is placed in the act upon the desirability of providing the necessary care and guidance in the child’s own home, and while the act recognizes that there will be cases where hospital care or commitment to a juvenile training school or other institution may be necessary, this is all directed to the rehabilitation of the child concerned rather than punishment for any delinquent conduct.

The Act in Section 83 (e), Art. 26, Code (1957), expressly provides that:

“No adjudication upon the status of any child in the jurisdiction of the court shall operate to impose any of the civil disabilities ordinarily imposed by conviction, nor shall any child be deemed a criminal by reason of such adjudication, nor shall such adjudication be deemed a conviction of a crime * *

This Court recently had occasion to consider the defective delinquent statute, Article 3IB of the Code, in the case of Eggleston v. State, 209 Md. 504. It was contended that the appellant’s confinement in the Patuxent Institution was in effect double jeopardy having been superimposed upon a prior conviction and sentence. In commenting upon this argument this Court at page 513 said:

“Moreover, the appellant’s argument assumes that the new law is a penal statute imposing a new penalty for an established crime or crimes. We do not so regard it.”

This Court considered at length the purpose and effect of the defective delinquent law, recognized that it contemplated confinement in the nature of treatment for the persons committed to the Patuxent Institution, and on page 515 commented as follows:

“The detention is not by way of punishment for a crime, but is preventive and therapeutic.”

Similar views were expressed in the later case of McElroy v. Director, 211 Md. 385. There the court held that because confinement in the Patuxent Institution was not the result of a criminal prosecution, an inmate there had no right to appeal to this court or to seek leave to appeal under the provisions of Article 42, Section 7 (1951 Code).¹ It is manifest that if the proceeding under the defective delinquent law does not create double jeopardy nor expose an inmate there to criminal punishment, as was held in these two cases, then the proceeding in the juvenile court certainly did not do so. See also the case of Bailey v. Superintendent, 190 Md. 735, in which it was held that a patient in Spring Grove Hospital on commitment from a criminal court was not “detained for or confined as the result of a prosecution for a criminal offense”. To the same effect is Miller v. Superintendent, 190 Md. 741. We conclude that an adjudication of delinquency in the Juvenile Court for Montgomery County did not bar the appellant’s prosecution in the circuit court. The view here expressed finds support in the case of People v. Silverstein (Cal. App., 1953), 262 P. 2d 656. A somewhat similar view was expressed in the case of State v. Smith (N. D., 1946), 25 N. W. 2d 270.

CONSTRUCTION OP THE STATUTE

The appellant also contends that the juvenile court, having held a hearing and determined that the appellant- was a delinquent minor, was not authorized by the statute to thereafter waive jurisdiction in favor of the criminal court. The juvenile court’s authority to waive jurisdiction is found in Section 83 (e) of the Act. This sub-section, after providing that the proceeding in the juvenile court should not be deemed criminal action, provides in part as follows:

“Nor shall any child be charged with or convicted of a crime in any court, except that in the case when a child 16 years of age or over is charged with an offense which would amount to a felony in the case of an adult, the judge, after full investigation, may waive jurisdiction and order such child held for trial under the regular procedure of the court which would have jurisdiction of such offense if committed by an adult * *

It will be noted that except for requiring that a waiver be had only “after full investigation” the Act is entirely silent as to when the waiver may be had. We do not agree with the appellant’s contention that the statute means that at or before the hearing the juvenile judge must elect either to waive jurisdiction or to decide the case by determining whether or not the minor involved is delinquent. Had the legislature intended to impose this restriction, it could easily have said so. We think the more reasonable construction of the statute is that it permits a waiver at any time before the court loses jurisdiction either by lapse of time or discharge of the minor from the court’s control. This construction seems more compatible with the general purpose of the Act. It is more consistent with its theory that the juvenile judge be permitted to thoroughly study the case, try any and all devices or techniques that may be available to him looking to rehabilitation of the child before being required to determine whether or not jurisdiction should be waived in favor of the criminal court. The case at bar is a good illustration of the need for careful weighing of this decision. Here was a lad charged with a whole series of serious depredations. They were indicative of some serious emotional problem. The court sent him to the National Institute of Health for a preliminary study and after hearing committed him to the Psychiatric Institute. It developed that he either could not or would not profit from treatment and then and only then did the court feel justified in waiving jurisdiction. Had the lad accepted treatment at the Institute and cooperated in efforts to effect his rehabilitation, it may have been entirely unnecessary to send him to the criminal court. Certainly the statute should not be so construed as to prevent the attempt to thus rehabilitate the minor.

The court concludes that the proceedings in the juvenile court did not place the appellant in jeopardy nor was the juvenile court too late in its determination to waive jurisdiction in favor of the criminal court. The judgment of the court below will be affirmed.

Judgment affirmed, with costs.

1 . This statute was amended by Ch. 760 of the Acts of 1957 to authorize application for leave to appeal by such inmates, but the right of appeal in all habeas corpus cases was abrogated by the repeal of Sec. 6, Art. 43, of the Code by Ch. 45 of the Acts of 1958.