108 Mass. 492 | Mass. | 1871
The petitioner was brought before the municipal court of the city of Boston, on a complaint in which he was charged with the felonious embezzlement of a large sum of money, namely, one thousand and forty dollars, from his employers; the offence being one not punishable by imprisonment for life, and not within the final jurisdiction of any police or municipal court in the county of Suffolk. Before any trial was had upon
The petitioner insists that this sentence was unlawful, for two reasons, namely, that the statute does not purport to authorize the judge of probate to inflict such a sentence; and even if it did, it would be unconstitutional, and therefore void, for the reason that it gives no right of appeal, and deprives the accused of all opportunity to have a trial by jury. Neither of these objections appears to us to be tenable.
The judge is authorized by the St. of 1870, c. 359, § 11, to sentence any boy so convicted by him to any institution established by authority of the laws of this Commonwealth for the reformation of juvenile offenders; “ or, if below the age of twelve years, to the state reform school; if above the age of fourteen years, to the Massachusetts nautical school; and if between those ages, to either of said schools, in like manner, and subject to the same provisions of law as now apply to boys committed to said schools or institutions respectively, or in the discretion of the judge, to such other punishment as is provided for the offence.” The petitioner insists that the only, case in which the judge has a discretionary power to sentence, in any other manner than by commitment to some reformatory institution, is when the offender is between the ages of twelve and fourteen years. We cannot so
With regard to the point taken by the petitioner, as to the supposed denial of the right of appeal and of trial by jury, we think that, on taking the statutes upon this subject together, it will be found that there is no such denial. The provisions of Gen. Sts. <?. 76, § 21, authorize the judge of the probate court of the county, when a boy under the age of sixteen is brought before him from any police court, &c., to have the same jurisdiction, in regard to commitment to the reform school, as if the boy had been brought before him upon an original complaint. The twenty-third section provides that “if the judge is of opinion that a boy brought before him is guilty, and is not a fit subject for either branch of the school, he shall, if the offence charged is one within the jurisdiction of police courts, sentence him to such punishment as is provided by law for the offence; otherwise he shall bind him over to appear before the superior court for the same county, as police courts do in like cases.” Section 24 provides that any boy “ convicted and sentenced as aforesaid may appeal to the superior court ” as in ordinary criminal cases; a provision which amply secures to him the right of trial by jury. The Sts. of 1870, c. 359, and 1871, a. 365, purport to extend the jurisdiction of the judge, in the county of Suffolk, to boys under the age of seventeen years, and to any offence not punishable by imprisonment for life and not within the final jurisdiction of any police or municipal court in said county. But there is nothing in
This view of the case disposes of all the grounds of objection relied upon by the petitioner in the argument. The questions suggested by the attorney general, whether the decision by the majority of the court in Jones v. Robbins, 8 Gray, 329, should be followed, and is applicable to this case, have not been argued for the petitioner, and can be raised by him, if he should see fit, upon a writ of error. Fitzgerald v. Commonwealth, 5 Allen, 509. If it should be held that the present sentence is illegal, and yet that the prisoner, upon these proceedings, might be sentenced to the nautical branch of the reform school, the writ of error is the appropriate remedy for the correction of the sentence.
Petitioner remanded.