This cause comes into this court on petition in error from the common pleas court of Cuyahoga county, the purpose being to reverse a *Page 222 judgment of conviction for the crime of rape, forcibly and against the will of one Margaret Misar, by the plaintiff in error, Frank Scopillitti, defendant below.
The record shows that the defendant Scopillitti, then just under the age of eighteen years, was guilty, with one or two others, of taking Margaret Misar, a young girl, under a promise of driving her home, out to a lonely spot, where five or six other young men came out of the bushes, and there, forcibly and against her will, committed successive rapes upon her. Scopillitti and another were arrested on a charge of rape, under a warrant issuing from the municipal court of the city of Cleveland, and were bound over to the grand jury in Cuyahoga county.
On October 6, 1931, an indictment for the crime of rape forcibly and against the will of one Margaret Misar was returned against Scopillitti, the plaintiff in error, who was one of the persons charged in the indictment. On the 9th of October he was arraigned for said crime and entered a plea of guilty. On the 13th of October he was permitted to withdraw his plea of guilty and enter a plea of not guilty. Subsequently, on the 10th of November, during the same term of court, a motion was filed to have the case transferred to the juvenile court of Cuyahoga county, there being such a court in said county. Two days later this motion was granted.
The record is silent as to just what occurred between the date of the granting of this motion and November 25th, on which date the previous entry was vacated and Scopillitti was returned to the jurisdiction of the common pleas court. We are informed, however, by way of the state's brief and argument, *Page 223 that on November 16, 1931, affidavits were filed and citation issued in the juvenile court, which citation was later returned marked personal service, and that on November 25, 1931, a journal entry was made in the juvenile court showing a dismissal on the ground that defendant was over eighteen years of age, and the court therefore had no jurisdiction, for which reason the case went back into the common pleas court.
We learn from the record in this case, the arguments of counsel, the bill of exceptions, and the stipulations and agreed statement of facts therein contained, that this plaintiff in error was born on the 29th day of August, 1913, and that the crime of rape with which he was charged was committed on the 21st day of August, 1931, or eight days before he became eighteen years of age, at which age the juvenile judge apparently loses control over such delinquents. We learn likewise that plaintiff in error was arrested in the police court under a warrant charging him with rape on the 23rd day of August, 1931, and, as already stated, was bound over to the grand jury.
We learn likewise that this young man became eighteen years of age on the 29th of August, 1931, and that when he was indicted by the grand jury on October 6th he was not subject to the jurisdiction of the juvenile court; that he was eighteen years of age and no effort was made to have him sent over to the juvenile court until the 10th of November, as already stated; that when this case came on for trial in the common pleas court, under the indictment, after the common pleas court had vacated the entry in which it sent the defendant over to the juvenile court, he *Page 224 was brought before the common pleas judge sitting in the criminal branch of the Cuyahoga county common pleas court, where he waived a trial by jury and submitted to be tried by the judge; that he then made a verbal motion renewing the written motion that he had theretofore filed for an order removing him to the juvenile court, under Section 1659, General Code (114 Ohio Laws, 121), which went into effect on the 27th day of July, 1931, only a little less than a month before the crime charged in this indictment was alleged to have been committed.
It might here be pointed out that the defendant probably had waived his right to object to the proceedings by not filing a plea in abatement. The fact of defendant's minority was a defect extrinsic to the record, and Section 13439-7, General Code (113 Ohio Laws, 174), being old Section 13622, General Code (Section 7250, Revised Statutes), reads: "Plea in abatement may be made when there is a defect in the record shown by facts extrinsic thereto."
In the case of State v. Klingenberger, 113 Ohio St. 418,149 N.E. 395, it was held in syllabus one as follows: "A minor charged with felony waives his right to object to the jurisdiction of the court of common pleas on the ground of his minority, by not filing a plea in abatement to an indictment in the court of common pleas."
At the trial of that case, after the state had rested and the defendant in error had produced two witnesses and certain exhibits bearing upon his minority, he then, for the first time, made his motion to dismiss upon the ground that the court had no jurisdiction of the person of the defendant, and that the court was without jurisdiction to proceed therein. *Page 225
Judge Allen, delivering the opinion in that case, said, at page 421 of 113 Ohio State, 149 N.E. 395, 396: "Under Section 13622, General Code, the proper method to raise this objection was by a plea in abatement. Instead of filing a plea in abatement the defendant pleaded not guilty. Section 13625 [now Section 13439-11], General Code, provides that the accused by demurring to an indictment, or pleading in bar, or the general issue, shall be taken to have waived all defects which may be excepted to by a motion to quash or plea in abatement."
After proceeding to discuss the applicability of the rule to a minor charged with crime, the following conclusion is reached, at page 423 of 113 Ohio State, 149 N.E. 395, 396: "Since the statute upon waiver, above cited (General Code, Section 13625), makes no exception in the case of infants, and no case has been cited in support of the proposition, we hold that the state is correct in its contention that the defendant waived his right to question the jurisdiction of the court on the ground of his minority when he failed to file a plea in abatement."
In the instant case the defendant, after being permitted to withdraw his plea of guilty, pleaded the general issue, and it would seem that he thereby waived the defect of his minority even if he were at that time a minor.
Now, Section 1659, General Code (114 Ohio Laws, 121), in effect makes it obligatory when a minor under the age of eighteen is charged with a misdemeanor or felony that the case he referred to the juvenile court, and Section 1681, General Code (114 Ohio Laws, 121), provides that the juvenile judge may remand the case to the common pleas court after *Page 226 an investigation is had by the said juvenile judge.
Section 1659: "When a minor under the age of eighteen years is arrested on and under any charge, complaint, affidavit, orindictment, whether for a felony or a misdemeanor, such child shall be taken directly before the juvenile judge; if the child is taken before a justice of the peace, judge of the police ormunicipal court or court of common pleas other than a juvenilecourt, it shall be the duty of such justice of the peace or such judge of the police or municipal court or court of common pleas to transfer the case to the juvenile judge exercising the jurisdiction herein provided. The officers having such child in charge shall take it before such juvenile judge, who shall proceed to hear and dispose of the case in the same manner as if the child had been brought before the juvenile judge in the first instance. Upon such transfer or taking of child before suchjuvenile judge, all further proceedings upon or under the charge,complaint, information or indictment shall be discontinued in thecourt of said justice of the peace, police or municipal judge orjudge of the court of common pleas other than a juvenile court,and the case against or relating to such child shall thenceforthbe within the exclusive jurisdiction of such juvenile judge andshall be deemed to be upon a complaint filed in such juvenilecourt as fully as if the appearance of such child had been upona complaint filed in and a citation or warrant of arrestoriginally issued out of and by such juvenile court."
Section 1681: "When any information or complaint shall be filed against a delinquent child under these provisions, charging him with a felony, the *Page 227 judge may order such child to enter into a recognizance, with good and sufficient surety, in such amount as he deems reasonable, for his appearance before the court of common pleas at the next term thereof; provided, however, that beforedetermining upon or issuing any such order on a child under theage of eighteen years the judge shall cause a mental and physicalexamination of such child to be made by the bureau of juvenileresearch or by some other public or private agency qualified forsuch type of examination. The same proceedings shall be had thereafter upon such complaint as now authorized by law for the indictment, trial, judgment and sentence of any other person charged with a felony."
(The words italicized in the sections just quoted indicate the additions to the old sections made by the amendments effective July 27, 1931). 114 Ohio Laws, 121.
The principal claim of error in this case is that this young man when he was arrested was a juvenile, and that that fact gaveexclusive jurisdiction to the juvenile court; that the common pleas court had thereby lost jurisdiction and could in no wise try him no matter how grave the crime; and that the case must be disposed of by the juvenile judge unless such juvenile judge of his own volition remanded it to the common pleas court after an examination both mental and physical.
Whether this be the law or not is not very important in this case. The writer hereof is of the opinion that the common pleas court could not be deprived of its jurisdiction to try felonies, at least those felonies which under the Constitutions of the state of Ohio and the United States could not be *Page 228 tried without first having an indictment presented against the accused. If the claims that are made in this case are tenable, then the juvenile court, having no power to have an indictment returned, could, if so inclined, prevent a young man from being tried for any felony no matter how grave the offense nor how guilty the defendant. Whether that be the law or not, it is not necessary to now determine.
The juvenile court apparently was established to protectjuveniles. It was not intended to protect offenders, at the option of the juvenile judge, from the punishment which the law metes out for the greater felonies. The common pleas court has always had jurisdiction in felony cases under the Constitution of Ohio, no matter how young the offender, and that court can not be divested of such jurisdiction, assuming the validity of the statute above referred to which seemingly makes it mandatory where a juvenile under eighteen is arrested that he be sent to the juvenile judge for investigation and examination, and, if circumstances warrant it, that the juvenile judge dispose of the matter; but, if the party be sui juris and able both physically and mentally to commit the felony charged, that he be subject to the laws of the country and be tried only upon indictment returned by the grand jury. The juvenile court was given jurisdiction in this matter simply for the protection of minors to see that they were safeguarded in trials for felonies as well as misdemeanors.
The writer of this opinion apprehends that the word "may" in the statute means that, where in a case of a grave offense, as in murder or rape, the juvenile judge insists upon maintaining jurisdiction *Page 229 of the case, then either by prohibition or mandatory injunction he may be ordered not to try the case, or to send it to the common pleas court. This, however, is not more than the judgment of the writer of this opinion, and is not important in the instant case for the reason that the record in this case shows that at the time this young man was brought before the court, at least by indictment, and when the first motion was made to remove the defendant to the juvenile judge, he was more than eighteen years of age, was no longer a juvenile, and his case could not be adjudicated by the juvenile judge; and it would have been the duty of the juvenile judge to have refused to take jurisdiction of this case because he was asked to deal with one no longer a juvenile.
Simply because a juvenile judge once had jurisdiction of a juvenile does not give him continuing jurisdiction after the accused has become an adult. To illustrate: If a young man seventeen years of age commits a murder, and is not apprehended either on a warrant or an indictment until let us say he is twenty-five years of age, it would be silly to say that his case must be referred to the juvenile judge because the offense was committed when he was a juvenile. The writer of this opinion thinks that when the accused has ceased to be a juvenile, if the matter has not been disposed of in the juvenile court before he becomes eighteen years of age, the juvenile judge ipso facto loses control over him, and of necessity is compelled to send the defendant to the common pleas court; or the common pleas court might ignore whatever action the juvenile court took, and could indict and prosecute him just as it could any other defendant, the purpose of the statute protecting *Page 230 juveniles no longer being important because the person accused was no longer a juvenile. In other words, the juvenile statute only applies to juveniles, and does not apply to persons who have reached the age where they are no longer juveniles and subject to that court. To hold otherwise, a juvenile would not be subject to any adequate punishment for a cold-blooded murder, or what is just as bad, for the horrible crime of rape on the part of a young man, as the record shows the crime in this case to be, and he would be saved from punishment for his crime in any adequate sense and would be treated only as a juvenile delinquent.
Such was not the intention of the juvenile statute, nor was it the intention to confer jurisdiction of that kind or character upon a juvenile judge. In other words, the writer of this opinion and the majority of the court think that when a heinous crime has been committed by a person, who when tried is eighteen years of age or more, even though the crime was committed when he was a juvenile, if he was of such age and ability that he knew the full consequences, the law was never intended to protect that sort of offender.
Now in the present case this law which caused the reference of the matter to the juvenile court went into effect on the 27th of July, 1931. The defendant, who became eighteen years of age on the 29th of August, 1931, committed this horrible crime upon this girl, with others. On the 23d of August he was arrested and bound over by the police court to the grand jury. On the 29th of August he became the full age of eighteen. On the 6th of October, more than a month after he became of full age, he was *Page 231 indicted for the crime. On the 10th of November he first made a motion for an order to have his case removed to the juvenile court. It was referred and got back to the common pleas court, and the common pleas court tried the case, and, so far as it appears to this court, there was ample evidence to convict the young man of the crime with which he was charged — a crime to which he had already pleaded guilty. But through the mercy of the court he was permitted to withdraw his plea and submit to trial, and the court, after hearing all the evidence, found him guilty; and the only error that is complained of in this record, so far as we are able to determine, is that the common pleas court had no right or authority to try him because he was under eighteen when this crime was committed and he was first arrested. The majority of this court do not understand that to be the law.
Having gone over and reviewed all the errors complained of in the record, the majority of the court can do no other than affirm the judgment of the common pleas court.
Judgment affirmed.
WEYGANDT, J., concurs in judgment.
LEVINE, P.J., dissents. *Page 232