(concurring in part and dissenting in part).
I agree that the authority to deal with delinquent minors is vested in the district court acting in the exercise of the jurisdiction granted hy the 1955 Juvenile Code and that the exercise of such jurisdiction is not proscribed by a constitutional limitation.
I am not persuaded that the procedures by which a determination is to be made as to whether a minor is a “delinquent” as the result of certain alleged misconduct by him, in consequences of which he may be committed to a state institution, requires that determination to be by a jury, even if the minor is charged with misconduct which would be a felony if committed by an adult. Nor am I persuaded that a statute or the Federal or State Constitutions require a preliminary jury determination of the guilt or innocence of the juvenile as a condition to jurisdiction of the court attaching to a juvenile charged with being a delinquent by reason of his violation of a state law.
The Supreme Court of the United States, in considering the question of the right of indigents to appointed counsel, reasoned in Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, that a provision of the Bill of Rights which is “fundamental and essential to a fair trial” should be made obligatory upon the states by the Due Process Clause of the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L.Ed.2d 799.
Some of the differences in concept between dealing with juveniles and adults, however, were pointed out in Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84, where it was said:
“1. The theory of the District’s Juvenile Court Act, like that of other jurisdictions, is rooted in social welfare philosophy rather than in the corpus juris. Its proceedings are designated as civil rather than criminal. The Juvenile Court is theoretically engaged in determining the needs of the child and of society rather than adjudicating criminal conduct. The objectives are to provide measures of guidance and rehabilitation for the child and protection for society, not to fix criminal responsibility, guilt and punishment. * * * ”
That court said that the original and exclusive jurisdiction over minors vested in the Juvenile Code confers on the minor certain special rights and immunities. The court said:
“He is, as specified by the statute, shielded from publicity. He may be confined, but with rare exceptions he may not be jailed along with adults. He may be detained, but only until he is 21 years of age. * * * q^e child is protected against consequences of adult conviction such as the loss of civil rights, the use of adjudication against him in subsequent proceedings, and disqualification for public employment.”
If the adjudication of “delinquency” must be by a jury with all of the procedures of a criminal trial, then certainly many of the immunities granted to minors will have been abolished. Among these, one considered most essential to the welfare of the child and in the interest of society is that of secrecy. There could be no secrecy with a jury trial. It is obvious to me that if there must be a fact-finding determination of delinquency by a jury, the first step has been taken in abolishing the difference in concept of treatment between juveniles and adults. Unless there is drastic revision of our laws applicable to juveniles, they may increasingly be charged and tried in the same manner as adults.
I suggest that the decision by the majority that a determination of delinquency must conform to all of the requirements of a criminal trial makes it imperative that the legislature re-examine our juvenile code with a view to determining whether juveniles charged with violation of state laws should he treated as adults or whether at least the post-adjudicative or disposi-tional process of the juvenile concept should be retained. I find no compelling reason why due process or a fair trial requires a jury trial. The whole theory of dealing with juveniles differently than adult offenders places the duty to determine the facts regarding “delinquency” upon the court — not a jury. Certainly the essentials of a fair hearing can be had before the judge without a jury. In re State in Interest of Carlo, 48 N.J. 224, 225 A.2d 110, relied upon by the majority does not require a different result. That court only reiterated the holding of Kent requiring that the fact-finding process measure up to the essentials of due process and fair treatment. The juvenile in Carlo was charged with homicide. No suggestion was there made that failure to provide a jury fact-finding determination offended due process.
The majority expressly say they do not rest the requirement that a juvenile is entitled to a jury determination of delinquency upon due process but rather upon the premise that a juvenile charged with violation of a felony statute prior to adoption of the State Constitution could only , have been charged and tried in the criminal courts as an adult and was entitled to a > jury trial. Applying that reasoning, they overturn the entire concept of the differ- . ence in procedures between juveniles and ■adults. See Mack, The Juvenile Court, 23 'Harvard L.Rev. 104, and In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527.
Certainly the privilege granted to a defendant in a criminal prosecution by the Sixth Amendment to the Constitution of the United States, and its application to the states by the Due Process Clause of the Fourteenth Amendment is at least as mandatory as that contained in article II, section 12, of the New Mexico Constitution; however, no court has held that due process requires the determination of delinquency to be by a jury.
In my view, neither the constitution nor any statute requires an adjudication of delinquency with all of the requirements of a criminal trial. Kent said, respecting the requirements of due process in connection with a hearing to determine whether a child charged with violation of a criminal statute should be retained in the juvenile court or certified for treatment in the criminal courts as an adult:
“We do not mean by this to indicate that the hearing to be held must conform with all of the requirements of a criminal trial or even of the usual administrative hearings; but we do hold that the hearing must measure up to the essentials of due process and fair treatment.”
In re Gault, supra, reiterated and affirmed the above rule of Kent and applied it as the correct rule in connection with a juvenile court adjudication of “delinquency.” I am convinced that if due process does not require the fact-finding determination by a jury, this provision of our State Constitution likewise makes no such requirement.
A holding that there must be a preliminary fact-finding determination of violation of a criminal statute to give the juvenile court jurisdiction over a minor is completely inconsistent with the premise that the legislature did not create a separate juvenile court. There is but one court — the district court. The only tenable interpretation of the juvenile code is that it created a special procedure to be applied by district courts in the handling of minors charged with delinquency. To make the statute constitutional, we must interpret § 13-8-27, N.M.S.A.1953, as requiring the charging of any minor with the commission of a criminal offense only in accordance with the delinquency procedures applicable to juveniles, unless the court shall determine after full hearing that such minor should be charged and dealt with under the criminal laws and procedures as an adult. In other words, the original charge can only be in accordance with the juvenile procedures. That section of the statute clearly gives the court jurisdiction over the minor.
Since there is no separate juvenile court, the question of requirements to vest jurisdiction in such a court becomes moot. The district court is the only court having jurisdiction of juveniles charged with being delinquent. That court certainly has inherent jurisdiction to determine whether the child is a delinquent so as to apply the post-adjudicative or dispositional process.
It is axiomatic that the court cannot certify a child to be tried as an adult unless the court has jurisdiction of both the subject-matter and person of the child. It is clearly inconsistent for the majority to say that jurisdiction does not attach until there has been a determination of delinquency by a jury in one case and in the same breath to hold that determination of the facts which give rise to jurisdiction need not be found if that court is to certify the child to be charged, tried and dealt with as an adult. In my view, if the majority be correct in holding a jury trial on the issue of delinquency is necessary to give jurisdiction in the one case, then if there is certification to be dealt with as an adult there must of necessity be two jury trials — one to determine whether the court had jurisdiction to certify the child for trial as an adult and again when he is tried as an adult.
I am convinced that the majority are clearly without any basis for holding that there is such a statutory mandate. Not only does the statute not require, but in fact it actually prohibits, a determination by a jury in express and unambiguous language. Section 13-8-49, N.M.S.A.1953, in part reads:
“All cases of juveniles coming under the jurisdiction of the juvenile court shall be dealt with by the court at separate hearings and without a jury.” (Emphasis supplied.)
All the statute does is to require a hearing. Any requirement for a jury determination could only arise by a statutory requirement for a hearing read in the light of the due process requirement of the Fourteenth Amendment. Since the right to a jury trial is denied a juvenile by statute, we are called upon to say whether, tested by our constitution or the Due Process Clause of the Fourteenth Amendment, the denial of the right to a jury trial offends constitutional guarantees. I am persuaded that they do not, and that there is clearly no basis for resting the requirement upon any language of the Juvenile Code.
I am compelled to disagree with the construction placed upon the statute by the majority requiring a preliminary fact finding of delinquency to be made by a jury to establish jurisdiction over that minor. The rule is well established that all provisions of a statute must be read together to ascertain the true intent of the legislature. Allen v. McClellan, 75 N.M. 400, 405 P.2d 405; Reese v. Dempsey, 48 N.M. 417, 152 P.2d 157; Cox v. City of Albuquerque, 53 N.M. 334, 207 P.2d 1017; State v. Thompson, 57 N.M. 459, 260 P.2d 370; Beatty v. City of Santa Fe, 57 N.M. 759, 263 P.2d 697. While § 13-8-26, N.M.S.A.1953, used the term “jurisdiction” in connection with children who by specified misconduct have become “delinquents,” I am convinced that when read with the next section, § 13-8-27, the legislature intended that the court should only exercise its juvenile jurisdiction. In my view, the legislative intention was not to require a strict determination of whether the court has juvenile jurisdiction, but rather to deny jurisdiction over minors to other courts or for other treatment, except where certified to be dealt with as an adult.
Finding no compelling reason to impose the requirement of a jury determination of the question of delinquency, and that due process does not require a jury trial of that issue, I must, accordingly, dissent from that portion of the opinion which deals with the question of a jury trial.