By section 13 of the act of March 23, 1893, relating to the Whittier State School (Stats. 1893, p. 332), section 17 of the original act was amended so as to read as follows: “If any accusation of the commission of any crime shall be made against any minor, under the age of eighteen years, before any grand jury, and the charge appears to be supported by evidence sufficient to put the accused upon trial, the grand jury may, in their discretion, instead of finding an indictment against the accused, return to the superior court that it appears to them that the accused is a suitable person to be committed to the care and *497guardianship of said institution. The court may thereupon order such commitment, if satisfied from the evidence that such commitment ought to be made, which examination may be waived by the parent or guardian of such minor.”
Acting under this provision of the statute the grand jury of Merced county made a presentment to the superior court as follows:
“To the judge of the superior court of the county of Merced, state of California: An accusation against Jonie Becknell, a minor under the age of eighteen years, to-wit, of the age of thirteen years, charging the said Jonie Becknell with the crime of burglary, committed in Merced county, state of California, on or about the first day of August, 1897, and the charge appearing to the grand jury to be supported by evidence sufficient to put the said Jonie Becknell upon his trial therefor, and it appearing to said grand jury that the accused is a suitable person to be committed to the care and guardianship of the reform school for juvenile offenders at Whittier, the grand jury therefore recommend that said Jonie Becknell be committed to the care and guardianship of said institution.”
Thereupon the court directed the said Jonie Becknell to be brought into court, and, against his special protest and objection, on the ground that the court had no jurisdiction to act in the matter, proceeded to take testimony for the purpose of determining whether said Jonie Becknell was a suitable person to be committed to the Whittier State School.
Upon the testimony so taken, and without any other proceeding or any trial by jury, the court did adjudge the said Jonie Becknell to be a suitable person to be committed to the Whittier State School until he should reach his majority, and made an order accordingly, under which he is now held in the custody of the superintendent of the school. The boy is under fourteen years of age, his father and mother are residents of Merced county and are able and willing to provide for his support and •education.
Upon this state of facts appearing on the return to the writ of habeas corpus, issued upon petition of the boy’s father, we are asked to discharge him from custody.
The petition must be granted. As a judgment of impriSon*498ment the order of the superior court is void. The boy cannot be imprisoned as a criminal without a trial by jury. As an award of guardianship it is equally void, for his parents—his natural guardians—cannot be deprived of their right to his care, custody, society, and services except by a proceeding to which they are made parties, and in which it is shown that they are unfit or unwilling or unable to perform their parental duties.
All the cases cited by counsel are consistent with, and several of them sustain, these views.
The minor is discharged from the custody of the superintendent and restored to the custody of the petitioner.
Van Fleet, J., Temple, J., McFarland, J., and Henshaw, J., concurred.