(concurring in part and dissenting in part).
I agree with the majority that a youngster of fifteen years of age should not be *240incarcerated with criminals, subject to certain restricted exception such as having been declared incorrigible. Not only do I agree with the majority, but more importantly so does our Supreme Court, but that Court goes further and says, in effect, that he cannot be so punished.
In Greene v. State, 210 Tenn. 276, 358 S.W.2d 306, the minor defendant was, as the young defendant in this case, charged with a capital offense but was convicted of a lesser included offense, again parallel to the history of this case. Pointing out that the acquittal of the offense that forced by statute the treatment of the child as an adult eliminated the basis for such treatment, the Supreme Court logically held:
“[W]hen it is shown that some crime other than those excepted in the statute has been committed the trial judge should then remand the child to the Juvenile Court where proceedings may be had under Juvenile Court law, that is, whether the child is incorrigible or not under such circumstances and under the statute.”
It cannot be supposed that the modifications in our juvenile statutes since the Supreme Court spoke to this issue, modifications designed to insure more humane treatment of children accused of crime than formerly, would in effect accomplish the opposite and permit a much more harsh disposition of a juvenile found guilty of an offense not set out by statute as removing the cloak of insulation than would have been permissible before the updating of our juvenile statutes.
The only reason the defendant was tried as an adult was that the juvenile court found that there was probable cause to believe he had committed murder in the first degree. It has now been established that he did not, and under the rule laid down in Greene, jurisdiction reverts to the juvenile court for such disposition as that court deems proper under the Juvenile Court Act. If the judge there finds that the youngster is incorrigible, he can order him confined in the penitentiary as in the case of other children who commit non-capital crimes who are incapable of being rehabilitated. If the defendant is found to be corrigible, then confinement in a juvenile institution or such probation as appears proper to the juvenile judge should follow.
Inasmuch as I feel bound by the Supreme Court to apply their recent holding under the exact circumstances of this case, I must respectfully dissent from the result reached by the majority to the limited extent dealt with in this opinion.