I cannot concur in the foregoing opinion. The Assistant Attorney General asserts that more than 80% of the cases the juvenile courts have to deal with are where the juvenile delinquents have committed crimes or misdemeanors, which "offenses" are made the basis of adjudication of juvenile delinquents.
If this is so, it seems logical to ascribe to the legislature an intent to deal especially with this class, as distinguished from those who merely grow up in idleness or those who visit dram shops, or wander the streets in the nighttime, or hook rides on moving trains or use profane language in public places, or are habitually absent from school. To my mind the legislature did do so. The word "sentence" is defined in Black's law dictionary as follows: "The judgment formally pronounced by the court, or judge upon defendant after his conviction in a criminal prosecution awarding the punishment to be inflicted. The word is properly confined to this meaning."
Section 1 of the act says: "A juvenile delinquent is declared to be anyone under the age of 18 years who violates any law (s) of this state," etc.
It may be that the juvenile court if established by Ch. 87, Laws of 1921, has exclusive jurisdiction "over juvenile delinquents * * * and over all matters arising under this act." But we must look elsewhere to find the laws, the violations of which constitute juvenile delinquency and the manner of determination of whether a person under the age of 18 years "violates any law of this state", *Page 162 and we find that such determination is not within the exclusive jurisdiction of the juvenile court. The jurisdiction to determine such fact of law violation and to "sentence" if conviction follows is by our laws reposed in the district court, justices of the peace courts and such courts inferior to the district courts as may be established by law and endowed by law with such jurisdiction. There is not the slightest indication in the juvenile delinquency act that the jurisdiction of the district court and justices of the peace courts to try and convict and sentence one who violates a law of this state was abrogated.
Therefore, when an affidavit charging an offense provided for in Sec. 4 of the act, i.e. containing "a statement of the facts bringing the juvenile delinquent within the provisions of this act" is filed with the clerk of the juvenile court, and it appears that the facts so alleged are that the juvenile has violated a law of this state, it readily appears that the juvenile court is not limited in its jurisdiction to those cases where the juvenile has never before been convicted of law violations.
The proof of law violations may consist of the record of convictions in the district court and in the courts of justices of the peace. So, Sec. 9 of the act is careful to not exclude the jurisdiction of the juvenile court by reason of the circumstance that "sentence" has been imposed by some other court. The first words of that section are: "The juvenile court shall have power to parole at any time before or after sentence, any juvenile delinquent."
If the opinion of the majority means that this signifies "before or after sentence by the juvenile court" only, an unwarranted limitation is imposed upon the power of the juvenile court, because we see in Sec. 8 that "The district court of each county shall have power to cause any case against a person under the age of 16 years to be transferred to the juvenile court docket, after which the same proceedings shall be had as provided in this act for juvenile delinquents."
It seems more likely that the legislature meant "before or after sentence" by any court having power to sentence, including the juvenile court.
Counsel for each of the parties at the oral argument conceded that the juvenile court has power to "sentence" for law violations providing such violations are petty offenses in which trial by jury is not guaranteed, and the majority say that the juvenile court may sentence for something or other, but are not very definite as to what.
Since Sec. 23 of Art. 6 of the Constitution authorizes the legislature to confer jurisdiction on probate courts for the trial of misdemeanors in which the punishment cannot be imprisonment in the penitentiary, etc., and in view of the provisions of Sec. 1 of Art. 6 of the Constitution, it is not unreasonable to suppose that jurisdiction *Page 163 was reposed by the legislature in juvenile courts to try and convict and sentence and parole in cases of petty offenses against the laws of this state.
That such jurisdiction is reposed in the juvenile courts, concurrently to a degree with other courts I do not doubt. For what other reason is the juvenile court endowed with the power to "punish" juvenile delinquents? This view is further supported by the title of the act which contains the phrase: "An Act Defining Juvenile Delinquents, Providing for their Punishment."
It thus appears that the juvenile court has a conventional jurisdiction to deal with those charged with petty offenses against the laws of this state, plus additional powers not residing in other courts. If the power to hear and determine charges that petty offenses against laws of this state have been committed, and to punish for such violations by "sentence" is incident only to adjudication of status of delinquency the argument is the same.
The legislature was doubtless conversant with the provisions of the Constitution and it seems were alert thereto, because they provided in the same Sec. 9 that "In all cases in which the right of trial by jury is guaranteed, the juvenile court shall hear the charges against said juvenile delinquent as a committing magistrate.". It seems plain, therefore, that in a case where the sole "charges" are that a juvenile has "violated a law of this state" in which a trial by jury is guaranteed, the power of the juvenile court to parole and subject to rules and regulations touching the welfare of said juvenile delinquent law violator before or after sentence is limited to before or after sentence by the district court in such cases as may have been transferred to it by the district court under the provisions of Sec. 8 or before or after sentence by a justice of the peace court or before or after sentence in the juvenile court.
By this construction some significance may be given to the phrase "In case such juvenile delinquent shall disregard the terms of his parole or shall be incorrigible, said juvenile court shall have full power to cause such juvenile delinquent to be brought before it for trial and to award such sentence as the law may authorize." This embraces both first offenders and repeaters and parole violators, etc., provided always that the limitation is observed that if the juvenile "is charged with an offense in which the right of trial by jury is guaranteed the court shall hear the charges against said juvenile delinquent as a committing magistrate."
Since the meaning of the word "sentence" as we have seen is properly confined to judgment pronounced after conviction, and conviction being for violation of law, the law pertaining to the particular offense and fixing the penalties therefor is what must be looked to in order to discover what sentence the law authorizes and this is the only meaning which can be given to the phrase "and to award such sentence as the law may authorize." *Page 164
In cases where the juvenile court has taken jurisdiction after sentence and has paroled the delinquent, the sentence itself will be what the law authorizes the juvenile court to award. If the juvenile court takes jurisdiction to determine juvenile delinquency before sentence upon the sole ground that the juvenile has violated a law of this state, and there is a parole and a disregard thereof, etc., the penalty provided in the statute for the particular law violation will be what the law authorizes the juvenile court to award.
I am unable to discover any "sentence" which the law authorizes for wandering the streets at night, using bad language in public places, hooking rides on moving trains, or habitual failure to attend school. So, I find in this clause support to the view that Secs. 8 and 9 relate to juvenile delinquency based on law violation, with the result that where the law violations arepetty offenses the juvenile court may determine whether the juvenile delinquent is guilty and may parole either before or after sentence by the juvenile court, and in cases where the charge is the violation of a law in which the right of trial by jury is not guaranteed, and some other court has found the juvenile guilty of a petty offense, the juvenile court may exercise its parole and regulatory powers before or after sentence by such court which has jurisdiction to try offenses in which the right of trial by jury is not guaranteed.
But in cases where the alleged juvenile delinquency is based solely upon charges of violation of a law in which the right of trial by jury is guaranteed, the juvenile court will acquire jurisdiction to parole only such juvenile delinquent as has been accorded a jury trial, if demanded, in the district court and found guilty, because the district court is the only court that has power to try and determine charges of offenses in which a trial by jury is guaranteed. After there has been a trial of a person under the age of eighteen years in the district court, with a jury, or without a jury if a jury is waived, the district court may either before or after sentence send the case to the juvenile court where such juvenile delinquent law violator may be dealt with as provided by the juvenile delinquent act, provided the juvenile is under the age of sixteen years, as provided in Sec. 8 of the act.
It is to be observed that Sec. 9 does not say that the juvenile delinquent may be paroled before or after trial. The power to sentence implies that there has been a trial.
If we give to the words "sentence" and "parole" the meaning ordinarily understood, as we are required by the rules of statutory construction, Sec. 9 makes sense. "`Sentence' as commonly used, meaning the decree or order by which the court imposes punishment or penalty upon a person found guilty, or the punishment or penalty imposed, and the word `parole' indicating the act is confined to criminal proceedings." 31 Words and Phrases, Perm. Ed., "Parole", Page 103.
We are not without aid in discovering the meaning of the phrase "one who violates *Page 165 any law of this state" as used in Sec. 1, and "offense" as employed in Sec. 9.
In Meyers v. State, 193 Wis. 126, 213 N.W. 645, 646, it was decided that the terms "offense" and "violation" used in repeater statutes means conviction of an offense, the court saying, "The terms `offense' and `violation,' as used in those statutes, unquestionably mean convictions of an offense."
The expression in Sec. 5: "In no case shall an order adjudging a person to be a ward of the juvenile court be deemed to be a conviction of a crime." does not help us much. There will be instances when a juvenile delinquent may be adjudged to be such for one of a dozen causes mentioned in Sec. 1 which are not violations of any law of this state. There might be another reason for inserting the quoted language in Sec. 5. A juvenile delinquent who has been convicted of violating a law of this state will not be able because of such language to plead former jeopardy by reason of such conviction against a proceeding to secure an order adjudging him a ward of the juvenile court.
The construction for which I contend finds support in legislative construction in Ch. 86, Laws of 1919, just two years after the enactment of the juvenile delinquency act when the subject was fresh in the minds of the legislators. Sec. 3 of Ch. 86, Laws of 1919, states as follows: "The District Courts may, in their discretion commit to the said Board as wards of thecourt, for terms not exceeding the minority of such girls, girls under the age of eighteen years who have been convicted of felonies less than murder, or of misdemeanors, or who are incorrigible, associate with thieves, or vicious or immoral persons or who are growing up in idleness, or who frequent places of prostitution, or who wander the streets at night without lawful business or occupation, or who habitually use vile, obscene, vulgar, profane or indecent language in public places, or who habitually violate the compulsory school law, or who are guilty of immoral conduct in public places, but nothing herein contained shall affect any of the provisions of Chapters four and eighty-five, Laws of 1917, this act being cumulative thereto." (Emphasis supplied.)
The phrase in the foregoing section "who have been convicted of felonies less than murder, or of misdemeanors" is significant as indicating a legislative understanding that nothing short of a conviction will suffice where the sole offense charged is a violation of a law of the state. Nothing is said of "conviction" of the bad conduct and practices enumerated in the latter portion of the section. To my mind, there is indicated by these many guide posts that the legislature entertained the conventional idea that it is a more serious consequence to adjudge a juvenile to be a law violator as a basis for adjudging him a juvenile delinquent than it is to so adjudicate upon the basis of a showing and finding of bad habits merely, and preserved the right of the alleged law *Page 166 violator to have the verdict of a jury that he is guilty of having violated a law of this state (in cases in which the right of trial by jury is guaranteed) before an inferior or any court could deprive him of his liberty. In other words, the juvenile court is sufficient arbiter as to the peccadillos and a jury has the first say as to certain serious crimes, unless a jury is waived.
I do not agree with the majority in ascribing to the legislature the harsh intention of relinquishing efforts of reform of a juvenile delinquent at the point of the commission of a second offense, or a parole violation.
I think that the provisions in Section 9 in recognition of the constitutional right of trial by jury in certain cases was not a gesture of impatience with the parole violator or one who after being discharged from "parole or sentence of the court wilfully violates any of the provisions of Sec. 1 of this act", indicating a desire that such juvenile be further punished by being "proceeded against criminally." In other words, a jury trial in a case in which "the right of trial by jury is guaranteed" is not generally regarded as a penalty for disobedience but as a substantial constitutional privilege. To my mind the insertion in Sec. 9 of the clause "and in all cases in which such juvenile delinquent is charged with an offense in which right of trial by jury is guaranteed, the court shall hear the charges against said juvenile delinquent as a committing magistrate", was to buttress the act against attacks on the grounds of unconstitutionality.
I am unable to agree with the view of the majority that the legislature intended to withhold the right of trial by jury from the first offender and accord it to only second offenders and parole violators. It seems singular that the repeater, or the incorrigible, must be relegated to the district court where he could have a jury trial, unless waived, with the attendant right if convicted, of an appeal to the Supreme Court, whereas the novice must go without a jury trial and without an appeal.
The phrase "committing magistrate" was defined in State v. Rogers, 31 N.M. 485, 247 P. 828, 833, to mean one who on probable evidence commits for trial or requires bail, and it seems to be more appropriately employed with reference to one who has not been theretofore tried. The phrase "and if bound over shall be proceeded against in the same manner as provided by law" might mean that in a case which had been tried in the district court and after sentence the case had been transferred to the juvenile court docket, pursuant to Sec. 8, and the juvenile delinquent thus brought under the jurisdiction of the juvenile court had visited a public pool hall contrary to Sec. 1 of the act, the juvenile court could bind him over to the district court but there would not then be a trial in the district court and nothing further to be done by the district court except to execute the sentence. But the ordinary meaning of the phrase "committing *Page 167 magistrate", particularly in connection with the attendant language "and in all cases in which said juvenile delinquent is charged with an offense in which the right of trial by jury is guaranteed" means commit for trial, as we said in State v. Rogers, supra.
Or suppose the district court after trial but before sentence has transferred a case to the juvenile court and the juvenile delinquent had been paroled by the juvenile court and he had violated his parole, what occasion would there be for the juvenile court to act merely as a committing magistrate and bind the offender over to the district court where nothing further would be required to be done in the matter except to "sentence" the parole violator? There would seem to be no occasion for such an idle procedure since Sec. 9 gives the juvenile court "full power to cause such juvenile delinquent to be brought before it for trial and award such sentence as the law may authorize."
The foregoing, and other considerations heretofore mentioned confirm me in the view that the restraint and limitation upon the juvenile court judge means that he shall only act as a committing magistrate in all cases where the juvenile delinquent is charged with an offense in which the trial by jury is guaranteed, and hear the charges as an examining court only.
The majority say: "We should resolve every reasonable doubt against an interpretation of the statute that would invariably compel a public trial under the relentless and stern prosecution by a district attorney of a delinquent of tender years." Unless the majority mean to hold that the criminal laws of our state have been abrogated and that since the enactment of the juvenile delinquent act, district courts and justice of the peace courts no longer have jurisdiction to enforce such criminal laws if the offender is under 18 years of age, then it has been and still is possible that a case might get into those courts before it gets into the juvenile courts.
Since it is the duty of the district attorney acting as juvenile court attorney to represent the State in all matters involving juvenile delinquency, it is difficult to see how the juvenile delinquent is to be immune from the relentless and stern district attorney even in the juvenile court.
The majority say: "This view [the view adopted] at least gives the first offending juvenile one chance to avoid the stigma and ignominy of conviction after prosecution at public trial." A little consideration of the meaning of the word "conviction" will be helpful in appraising the value of the pronouncement last quoted. In Words and Phrases, Perm.Ed. Vol. 9, Page 594 et seq., are gathered many different definitions of the word conviction and at Page 596 are a number of citations to definitions by the courts to the effect that a conviction is an "adjudication of guilt." Other definitions are a "finding of guilt." Since before a *Page 168 juvenile may be declared to be a juvenile delinquent on the ground that he has violated a law of this state it must be adjudicated by the juvenile court that he is guilty of having violated such a law, it is difficult to attach any particularly baleful meaning to the word conviction. Perhaps some disabilities may follow in the one case that do not in the other.
In recalling that juvenile courts are required to keep records in which all orders and judgments given by the court shall be entered and hearings may be public, it is difficult to see how the "stigma and ignominy" of an order or judgment that the accused is a juvenile delinquent because he has violated a law of this state amounting to an infamous or felonious crime or a misdemeanor of the graver sort is any less in one forum than another.
The sentiment of the majority heretofore quoted indicating a desire that the sensibilities of the juvenile delinquent be protected does credit to the kind-heartedness of its sponsors but is of doubtful value as an aid to construction. Let it be remembered that we are here considering only that class of offenders who are charged with having committed offenses for which a trial by jury is guaranteed. They will not be bound over to the district court unless the juvenile court judge is convinced that there is probable cause to believe that they are guilty as charged. It is the observation of many students of life that young and generous minds, uncontaminated with vice, unsullied and unstained by contact with the evil practices of life, without previous training in the contemplation of crime, do not at once, while in a healthy state, plunge into the commission of those offenses for which a trial by jury is guaranteed. It is to be doubted that it will often happen that the sensibilities of such offenders will recoil at the stern and relentless methods of the district attorney. Anyway, the matter is in the hands of the alleged offender. It will usually be those who assert innocence who demand a jury trial. It is theirs to demand or waive. The legislature sought to preserve this right and we cannot take it away however much we might think it would be better for those of tender years if the constitutional guaranty had been omitted as to them. But since one of tender years charged with violating laws of this state must confront the district attorney in the juvenile court where the state is endeavoring to have him declared a juvenile delinquent, he may consider whether he wishes the judge or the jury to determine whether he is guilty or not.
It seems likely that the juvenile court will have plenty to do, with those who do not demand a jury trial.
Judge Jesse Olney of the San Bernardino (California) County Bar, formerly Superior Judge of that County, in an article in the April, 1938, State Bar Journal of California, is somewhat critical of juvenile courts and says: "Active young criminals invariably ask that their cases be sent to the Juvenile Court." Furthermore, if the accused waives a jury the District *Page 169 Court may transfer the case to the Juvenile Court. The argument of the majority last adverted to does not impress me favorably. It is beside the point. The rights of the individual guaranteed by the constitution cannot be determined by the criterion of whether we think them useful or otherwise.
After a prolonged study of the act, I am influenced by the deep conviction that it was the legislative thought that no great stigma or ignominy will attach to a juvenile to be made a ward of the court for indulging in bad habits or associations, or even commission of petty offenses, but that it is quite another matter to have of record in the juvenile court a judgment that an accused juvenile has been adjudicated to have committed rape, robbery, assault with intent to kill, or any other infamous or felonious offense with the stigma and ignominy attached thereto without having had his constitutional right to a trial by jury.
When we were unanimously in support of this view, as expressed in the opinion originally filed, I was able to concur in the conclusions that the petitioner had not otherwise made a good case against the constitutionality of the statute, but with the majority change of position on this important element of the case, resulting in the further detention of the petitioner instead of his discharge, I am cast in doubt as to whether some of his other positions may not have been well taken.
Since the objections to the opinion and decision of the majority, which I have here specifically developed are insurmountable, I find it unnecessary to elaborate those doubts. I dissent.