ON MOTION FOR REHEARING. The State in its motion for rehearing complains of several alleged errors committed by this court in remanding the petitioner to the Sheriff of Greene County.
I. It was alleged in the petition and appeared in the argument of the case, without dispute, that Alvin Bass was committed to the *Page 206 penitentiary on charge of a felony when no information had been filed by the prosecuting attorney charging theInformation. crime, contrary to Section 12, Article 11 of the Constitution, and Section 3504, Revised Statutes 1929, requiring that all informations shall be signed by the prosecuting attorney.
The movent calls attention to Section 14142, Revised Statutes 1929, requiring all proceedings under the article relating to juvenile courts to be by information filed by the city, prosecuting or circuit attorney, with a proviso that the probation officer may file an information or complaint. That proviso can apply only to proceedings in the juvenile court where one is proceeded against as a delinquent child and not as a criminal under the general law.
The motion also mentions Section 14136, Revised Statutes 1929, which vests general jurisdiction of delinquent children in a juvenile court in counties of more than fifty thousand inhabitants, and Section 13147, by which probably Section 14147 was meant. It has no relevancy to the question under consideration here. The Juvenile Court of Greene County was without jurisdiction to commit the petitioner to the penitentiary for the commission of a crime because no information had been filed by an officer having authority to file an information charging a crime.
II. The Juvenile Court had no jurisdiction to sentence the petitioner to the penitentiary or order his commitment even if a proper information had been filed. The petitioner cites Section 8350, Revised Statutes 1929, as authorizing the juvenile court to render such sentence and make a commitment. ThereSentence to is nothing in that section which supports hisPenitentiary. position except the closing sentence which was definitely held to be unconstitutional in State ex rel. Wells v. Walker, 326 Mo. 1233, 34 S.W.2d l.c. 129 et seq.
The entire purpose and policy of the Juvenile Court Law was to provide a tribunal for the determination of delinquencies in children, to provide not punishments but reformatory measures. Such a court was not vested with power to entertain a criminal prosecution. "The proceeding is not transformed into a prosecution for crime by the mere adoption of practice in criminal cases as far as applicable under the act." [Matacia v. Buckner, 300 Mo. l.c. 365, 366; Secs. 1938, 3501, and 14137, R.S. 1929.]
III. The motion complains further that the decision in this case went upon the theory that the proceeding in the juvenile court had been dismissed and the case transferred to the Criminal Court of Greene County, when in fact no suchDismissal: dismissal or transfer had been made. The petition forTransfer. the writ of habeas corpus in this case states that the judge of the *Page 207 juvenile court entered his dismissal of the proceeding under the juvenile procedure and ordered and directed that the cause be tried under the procedure of the general criminal laws of this State; that thereafter the said Alvin Bass was arraigned, etc. The return of the warden of the penitentiary to the alternative writ contains a copy of the proceedings in the Juvenile Court of Greene County. The record shows that the defendant appeared in open court by his own person, the parents of the defendant and the prosecuting attorney being present, and the judge of the juvenile court "having duly advised himself as to the previous record of said defendant, and having determined and directed that further steps, and the trial of said defendant herein shall proceed against said defendant, not as a delinquent, but under the general criminal law," the defendant was arraigned, etc.
Whether there was a distinct and separate order transferring said cause from the juvenile court to the court of general jurisdiction the record here does not show. Nor does it show that there was a dismissal of the proceeding in the juvenile court. Even if the State were right in its position here that the jurisdiction was not transferred from the juvenile court to the court of general jurisdiction, still since the juvenile court had no jurisdiction to commit the prisoner, the prisoner would have to be remanded for proceeding according to law. But Section 14163, Revised Statutes 1929, is very definite and clear, giving discretion to the judge of any court having jurisdiction of delinquent children to dismiss such proceeding and order such child to be prosecuted under the general law. The section further contemplates that the proceeding under the general law shall be made in a court or before a judge having general jurisdiction of criminal cases. The order actually made by the judge of the court contemplates that the proceeding against the petitioner as against a delinquent child was already dismissed or would be dismissed.
IV. The mover finds certain difficulties in remanding the petitioner to the Sheriff of Greene County in whose custody he never was. The opinion cites Section 1468, RevisedRemand Statutes 1929, which provides that the prisoner beto Sheriff. not discharged and be not bailed and if the person under whose custody or restraint he was not entitled thereto then he shall be committed to the custody of such officer or person as by law is entitled thereto. The petitioner was not entitled to his discharge, because he stood accused of a crime: plainly under that statute the proper custodian of his person until further order of the court was the Sheriff of Greene County, and the order remanding him to the custody of the sheriff was proper.
The motion is therefore overruled. All concur, except Ragland,C.J., who dissents. *Page 208