This case has been argued orally on rehearing with great ability. The kernel of the argument is that by reason of various acts of our legislature a person under the age of eighteen years cannot be a criminal and therefore there can be no "criminal case" against him and that consequently a proceeding against him in the district court is not within the category "any criminal case of the people against or concerning any person under the age of twenty-one years," and so the juvenile court has not co-ordinate jurisdiction with the district court over such case and therefore the district court has no jurisdiction over it.
One flaw in this reasoning is shown by the proposition that there may be a criminal case against one not a criminal, even against one incapable of crime, e. g., at common law, infants under ten and insane persons; the fact therefore that the relator cannot be a criminal does not reach the question of jurisdiction, however erroneous it might be to convict him of a crime. We cannot therefore prohibit the district court.
Then, too, the statute C. L. § 667, says that "as far as practicable any delinquent child shall be treated, not as a criminal." How far is it practicable to treat the relator not as a criminal? We do not know. Under the terms of the statute providing for co-ordinate jurisdiction the legislature apparently thought that the district court might be able to determine that question, and it is not for us to say it could not. See People v. Juvenile Court, cited in our *Page 31 former opinion. We still think the rule should be discharged.
Rule discharged.
MR. CHIEF JUSTICE ALLEN dissents.