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Land and Brunot, JJ., dissenting. The appellant, a negro girl 15 years of age, was indicted for the murder of one Arthur Dabon, her father. She was convicted of manslaughter, with a recommendation for leniency, and sentenced to imprisonment in the state penitentiary, at hard labor, for a term of not less than 10 nor more than 15 years, and to pay a fine of $100, or, in default of payment thereof, to serve 60 days additional in the parish prison.
During the course of the trial, defendant reserved a bill of exception to the admission, over her objection, of two alleged voluntary confessions, one to her uncle, James Dabon, and the other to Corporal John J. Barrett, of the New Orleans police force. She also reserved bills of exception to the action of the trial judge in overruling her motions for a new trial and in arrest of judgment. In this court, appellant has filed an assignment of errors in which she sets forth five separate and distinct grounds of error appearing on the face of the record committed by the trial judge to her prejudice.
We find it necessary to consider only the jurisdictional questions raised by the appellant.
After the jury was impaneled and sworn for the trial of defendant and before *Page 1078 any evidence whatever was offered, counsel prosecuting on behalf of the state announced in open court that he would not ask for a capital verdict. Appellant contends that by virtue of this announcement the state waived its right to a capital verdict, thereby taking the crime with which she was charged out of the category of capital crimes within the meaning the Constitution and laws of the state, and divesting the district court of jurisdiction to try her for any offense. We do not think the contention is sound.
The Constitution of 1921, art. 7, § 96, creates a "juvenile court for the parish of Orleans," and confers jurisdiction upon said court to try, except for capital crimes, neglected or delinquent children under 17 years of age. The proceedings before, and the administration of, the court is provided for by Act 126 of 1921.
Felonies are either capital or not capital. If, under any circumstances, the penalty of death may be inflicted, the offense is capital whether it is actually inflicted in a particular case or not. If, under no circumstances, the penalty of death can be inflicted, the crime is not capital. In the case at bar the jury could have convicted the defendant of murder without capital punishment. The fact that it was within their power to determine whether the penalty should be death or be imprisonment for life in the penitentiary does not make the crime less capital than before.
The waiver of a capital verdict by the prosecuting officer was not binding upon the jury; it was merely persuasive. When the case was submitted to the jury, they, and not the prosecuting officer, were the judges of the guilt or innocence of the defendant. State v. Bailey, 4 La. Ann. 376.
Although the district court was vested with jurisdiction to try defendant for the capital offense with which she was charged, a more serious legal question is presented as *Page 1079 the result of the verdict of manslaughter found by the jury. Appellant contends that the trial judge erred in refusing to hold that the verdict was in law and in legal effect a presumption juris et de jure that the district court had no jurisdiction to try or sentence her, a juvenile offender, ab initio.
There can be no doubt that the verdict "guilty of manslaughter" was equivalent to a verdict of not guilty of the offense charged in the indictment. It is also clear that under the legislation of the state affecting juveniles in the city of New Orleans, outside of a capital offense, a child under 17 years of age who violates any law of the state or ordinance of the city simply becomes a delinquent child and subject to the jurisdiction of the juvenile court. So that what in an adult would be considered and punished as the crime of manslaughter, when committed by a juvenile is a mere delinquency triable and punishable in the manner provided by special laws. Const. 1921, art. 7, § 96; Act 126 of 1921; State v. Malone, 156 La. 617, 100 So. 788; State v. Duckett, 160 La. 920, 107 So. 696.
The case of State v. Bridges, 149 La. 844, 90 So. 217, is singularly appropriate here. In that case a juvenile indicted for murder was found guilty of manslaughter. This court set the verdict aside because of an erroneous instruction by the district judge. The accused, however, was remanded for trial to the juvenile court, and not to the district court. In support of our order we said:
"* * * The district attorney admitted in his argument to this court that defendant is yet under the age of 17 years, and therefore cannot be tried for manslaughter except in the juvenile court. Having been acquitted of the crime of murder, he cannot be tried again for that crime, as far as this homicide is concerned."
If this court should have seen fit to examine the action of the trial judge in admitting the alleged voluntary confessions of the *Page 1080 defendant, and, from that examination, should have reached the conclusion that the judge erred in his rulings, the case would be identical with the Bridges Case, and under the decision there would have to be, unquestionably, remanded to the juvenile court. We see no valid reason why a like procedure should not be followed in the case as it presently appears before us. The legal principles governing both cases are the same, and they should be disposed of in the same way.
In State v. Howard, 126 La. 353, 52 So. 539, and 127 La. 435,53 So. 677, and State v. Hardy, 142 La. 1061, 78 So. 116, the vital question was whether the district court or the juvenile court was vested with jurisdiction to try a child under 17 years of age, charged by indictment with the crime of murder. The court ruled that the trial under such an indictment was exclusively within the jurisdiction of the district court. The decisions are, to that extent, in accord with our present ruling that the appellant was properly tried in the district court for the crime (murder) for which she was indicted. Since, however, in the three cases referred to, supra, the defendants were convicted of manslaughter, it would appear they are in conflict with our present ruling that such a conviction operated as an acquittal of the crime charged, and as there can be no valid indictment or prosecution of a juvenile for the crime of manslaughter, appellant, as a delinquent child, is subject only to the jurisdiction of the juvenile court. On this point, the authority of those cases may be seriously questioned. The contention on which our ruling here is based was not, apparently, raised in the Howard and Hardy Cases. In fact, in the latter case, the appellant made no appearance in this court, either in person or by counsel. In order to clarify the situation, however, we have concluded to overrule, and do hereby overrule, the three cases referred to, supra, in so far *Page 1081 as they may conflict with our decision in this case.
For the reasons assigned, the verdict and sentence appealed from are annulled, and it is ordered that this case be remanded to the juvenile court for the parish of Orleans to be there proceeded with in accordance with the laws applicable to said court.
LAND and BRUNOT, JJ., dissent.