Defendant was charged with murder in the Marquette circuit court and convicted, and the case comes to this court on exceptions before sentence. It appears that at the time the crime was committed, on July 10, 1925, the defendant was *Page 436 a minor, not yet 15 years of age. He was apprehended and taken before the probate court, and, after the county agent investigated, he was charged as a delinquent, on account of the offense which he committed. He was committed to the custody of the county agent, to be confined in the detention room, in the city of Marquette, until the further order of the court. On August 15, 1925, the defendant became 15 years of age. On the 26th of that month the prosecuting attorney filed a petition in probate court requesting the court to waive jurisdiction so that defendant could be taken into the circuit court and charged with murder, under the authority of the following proviso:
"Provided, however, that in any case where a child over the age of fifteen years is charged with a felony, the judge of probate may, after investigation and examination, and upon motion of the prosecuting attorney, waive jurisdiction; whereupon it shall be lawful to try such child in the court having general criminal jurisdiction of such offense." Act No. 105, Pub. Acts 1923, § 6.
This motion was granted. Jurisdiction was waived by the probate court, and defendant was then taken into the circuit court, where he was charged, tried, and convicted of second-degree murder. Defendant's counsel moved to quash the information because the defendant was under 15 years of age when the offense was committed, and, therefore, the probate court could not waive jurisdiction. The trial court denied the motion on the ground that defendant was 15 years of age when charged with the offense in the circuit court.
The sole question raised is whether the probate court can waive jurisdiction where the boy is 15 years of age when charged, but where the offense for which he is charged was committed while he was 14 years of age. In construing this proviso, we should keep in *Page 437 mind the thought that lay back of the constitutional and statutory provisions changing the method of dealing with juvenile offenders. Until recent years we apprehended, tried, and disposed of juvenile offenders the same as we did adults. In many cases the courts did more harm than good. They committed juvenile offenders to our prisons where their older associates made criminals of them before they were released. At last we came to realize that youth has its reckless and irresponsible moods, and that they should be dealt with on a different basis than adults. It was this thought that put into the State Constitution, and afterwards into the statute, the present method of dealing with juvenile offenders. It created juvenile courts, and in counties of this class made the probate court the juvenile court. The law is clear that it intended juvenile courts should have original jurisdiction over offenses committed by children under 17 years of age (Act No. 6, Pub. Acts 1907, as amended by Act No. 105, Pub. Acts 1923), with one exception, when any "child over the age of fifteen years is charged with a felony." It left it to the sound discretion of the probate judge to say whether he would waive jurisdiction and allow the child to be taken into the circuit court for trial. It is evident from the act that it is the child's immature mind which protects him from the common-law court until he has arrived at a certain age. This protection is afforded him on the theory that a child may commit some criminal act before he is 17 that he would not later commit by reason of his maturity. In view of this, we think it is not so material how old he is when charged, but the important fact is, how old was he when he committed the criminal act? Suppose a boy 13 years of age commits a criminal act, can you wait until he is 15 years of age and then charge him with the offense in the circuit court? If you can, by what standard *Page 438 are you going to deal with him, as a child or as an adult? It is acts committed by reason of immaturity of mind that the law is dealing with, and not his age, when he is charged with being delinquent. We think the proviso should be construed the same as though it read:
"Provided, however, That in any case where a child over the age of fifteen years commits a felony the judge of probate," etc.
This is the only interpretation that is in accord and consistent with the constitutional and legislative changes, and the only interpretation that will work out the purpose of the law. This question has been before other courts. An interesting case is that of Mattingly v. Commonwealth, 171 Ky. 222 (188 S.W. 370). It was there said, in part:
"Upon the question of jurisdiction the only point raised here that is not concluded by former decisions of this court is the suggestion that the age at the time of trial, rather than at the time the crime was committed, should prevail. This suggestion, however, is, in our judgment, unsound from the very terms of the statute as well as upon reason. The statute defines a 'delinquent' child to be one who, of the ages specified, commits any of the acts named, including the crime charged here, and then vests in county courts of the State exclusive jurisdiction to try such 'delinquent' children. They become 'delinquent' children by the commission of the act denounced when the acts are committed, and the jurisdiction then vests exclusively in the county court, which court, having thus acquired exclusive jurisdiction, cannot be ousted by its failure to act. The very purpose of this law, as has been declared by this court upon more occasions than one, is to provide for the protection and care of juvenile offenders in a humanitarian effort to prevent them from becoming outcasts and criminals rather than to inflict punishment for their delinquencies. To hold that the officers charged with the execution of the law may defer action until the offending child has passed the age thus protected by the statute, and then prosecute *Page 439 him as a criminal, and not as a juvenile, would defeat the very purpose of the law and cannot be sanctioned."
Other cases in accord are Waters v. Commonwealth, 171 Ky. 457 (188 S.W. 490); Compton v. Commonwealth, 194 Ky. 429 (240 S.W. 36); Ex parte Parnell (Okla.Cr.), 200 P. 456; In re Tom,17 Cal.App. 678 (121 P. 294); People v. Oxnam, 170 Cal. 211 (149 P. 165); State v. Thomas, 250 Mo. 189 (157 S.W. 330);Sams v. State, 133 Tenn. 188 (180 S.W. 173); State v. Coble,181 N.C. 554 (107 S.E. 132); State v. Superior Court, 105 Wn. 684 (179 P. 79).
Due, undoubtedly, to the many changes in this law in recent years, there appears to be no provision for the disposition of delinquent children under 15 years of age who commit felonies beyond the usual penalties for minor delinquencies. This is a subject for legislative consideration.
The judgment of conviction should be set aside and defendant should be committed to the care of the county agent and confined in the detention home until the further order of the probate court.
SNOW and McDONALD, JJ., concurred with BIRD, C.J.