*1 MOQUIN v. STATE Appeals in Record) One (Three Term, September [No. 1957.] *2 Decided May 1958. cause was argued before Henderson, Hammond,. JJ., and Horney, Gray, Chief J., Judge
Prescott Circuit, Seventh specially assigned. Judicial Mathias, Joseph M. with whom were Jones & Mathias brief, for the appellant. B n Jr., General, Clinton Assistant Bamberger, Attorney General, whom were C. Sybert, Attorney Ferdinand Barbee, Alger Y. Attorney Montgomery County, State’s for brief, on the appellee. *3 J., the by special assignment, delivered Gray, of opinion the Court.
The in appeal this case of to- involves a the right state prosecute for crime a defendant who been had theretofore adjudged a minor delinquent a court on a juvenile pe- tition alleging facts which constitute the for basis criminal charge. appellant contends that such a (a) prosecution constitutes “double for the jeopardy” defendant and that the (b) juvenile court statute permit does not court to in favor of a criminal court after an adjudication delinquency. The appellant brought was before the for Court
Montgomery County, the provisions established Chapter 1955, 151 of Acts of now codified as Sections- Code, 72 et of Article on seq. 26 of a which petition that he was alleged a child in that he set fires- delinquent to houses and that he committed an assault on William He Moriarty. was sixteen at the time years of these old 25, 1957, acts. alleged This was filed on and petition April the juvenile an order judge passed committing appellant temporarily the National Institute Health. One month later this order was rescinded was appellant and detained "in quarters in the detention until a juvenile Rockville hear- 6, in that a ing 1957. As result of June was hearing appellant found to a delinquent child. placed He was under the the court and he was Institute, committed to University Hospital, Psychiatric Baltimore, Maryland, and case was continued pending further order of the court. After some two months at institute, the appellant eloped and his thereupon commitment to the institute was rescinded and the court on 8, August 1957, passed an order waiving jurisdiction and that the providing appellant be held trial under the regu- lar procedure Circuit Court for Montgomery County. Thereupon in appellant was charged informations arson, with and assault intent burglary to murder. The appellant in filed each of these cases motion to dismiss on the ground that the pending prosecutions would him place twice in offenses, for the jeopardy same and relied upon in proceedings the juvenile court to preclude prosecution the criminal court. This motion was denied and thereupon the appellant tried, convicted, 2559, was sentenced No. involving arson, a charge No. involving charge of assault with intent murder. He was also con- victed burglary case but sentence therein was sus- pended.
DOUBLE JEOPARDY The appellant’s contention is that after a had petition filed a juvenile court him with charging being minor by reason of having committed arson and an assault upon Moriarty, he placed jeopardy when a hearing *4 before the juvenile he court was adjudicated to be a delin- quent minor that he not thereafter be prosecuted could in a criminal court for the same offenses in the described juvenile petition. The determination of this in- question volves decision as to whether a juvenile court proceeding places minor in the jeopardy common law sense of that phrase. The doctrine of double jeopardy is one of ancient origin and is designed prevent to prosecution a person a time second when he has been already subjected to the risk of “life and limb” in a The prior trial. concept
528
(cid:127)
clearly
contemplates
action which bars a second
be
prosecution must
one
instituted
a court
which has
power to convict and
punish
person
for his
prosecuted
criminal conduct.
4 Blackstone’s Commentaries 335.
See
at pp.
Lewis
1725-26.
Edition
The Maryland constitution
against
contains no guaranty
double jeopardy and amendment 5 of the United States
Conn.,
Constitution is
applicable
to the state. Palko v.
319,
302 U.
288. The
jeopardy
S.
of double
subject
L. Ed.
has been before this court on
In the case of
many occasions.
Shields,
49 Md.
this
State
303 of
page
opinion,
Court said: “It has
always
a settled rule of the common
law that after an
of a
trial
acquittal
party upon
regular
misdemeanor,
an
indictment for either a
felony
* * *
afterward,
verdict
can
be set
acquittal
never
aside
* *
and a new trial
be-
granted
The matter was again
State,
fore
this court Robb v.
in that case
529 26, Act in 83 (1957), expressly Art. Code (e), Section that: provides the status upon any
“No of adjudication to impose of the court shall operate the jurisdiction by of the civil disabilities ordinarily imposed conviction, child be deemed a criminal nor shall any nor of such shall such ad- adjudication, reason by * * a be deemed a conviction of crime judication occasion to consider defective recently This Court had Code, statute, Article 3IB of in the case of delinquent State, that the Md. 504. It was contended Eggleston v. 209 confinement in the Patuxent Institution was appellant’s prior effect double having superimposed upon jeopardy In conviction and sentence. this commenting upon argument 513 page this Court said:
“Moreover, assumes that appellant’s argument statute pen- new law is a new penal imposing for an established crime crimes. We do not alty so it.” regard effect of the length
This Court considered at purpose law, recognized contemplated defective in the confinement nature treatment for com- persons Institution, mitted to the Patuxent and on 515 com- page mented as follows:
“The
detention is
by way
punishment
crime,
but
preventive
therapeutic.”
expressed
views were
later case of McElroy
Similar
Director,
CONSTRUCTION THE STATUTE court, The appellant also contends that the juvenile having held a hearing and determined that the appellant- was a de- minor, linquent was not authorized the statute there- by to after jurisdiction waive in favor of the criminal court. The juvenile court’s to is authority jurisdiction waive found sub-section, Section (e) Act. This after providing that the be proceeding should not deemed action, provides part follows: shall
“Nor be with or any charged convicted court, of a crime in that in any except the case when a child 16 years of or over is an age with charged offense which would amount to the case felony adult, of an after full judge, investigation, may waive order such jurisdiction and child held for trial under the of the regular procedure court which would have of such offense if jurisdiction committed * * an adult by It will be noted that that a except waiver be requiring “after full only investigation” entirely had Act silent as to when the may waiver had. We do not agree with or that at means the statute contention that appellant’s to elect either must the juvenile judge before hearing determining to the case or decide Had is delinquent. or not the minor whether involved restriction, it could easily this impose intended to legislature reasonable construction said so. think the more have We time before at any the statute is a waiver permits discharge time or either lapse court loses minor the court’s control. This construction from of the Act. seems more with compatible general purpose the juvenile judge is more theory consistent its case, all thoroughly study try permitted to him looking may devices available techniques deter- required rehabilitation of child before being *7 in favor whether not should be waived mine or illustration The at bar is a good of the court. case of this Here was of the need for careful decision. weighing whole charged depredations. with a series of serious lad serious emotional They problem. were indicative some sent the The court him to National Institute of Health for him the hearing and after committed to preliminary study It that Institute. he either could not Psychiatric developed not or would from treatment and and then profit then only the court feel in the justified jurisdiction. did Had waiving treatment the Institute in accepted cooperated lad at and rehabilitation, it efforts to effect his have been may entirely him the criminal court. unnecessary to send to Certainly not be the statute should so construed as to the prevent to rehabilitate the minor. attempt thus that The court concludes the proceedings juvenile court did not the in nor the place appellant jeopardy court late its juvenile too determination to waive juris- diction favor of criminal court. The judgment court below will affirmed.
Judgment affirmed, costs. Hammond, filed the following J., dissenting opinion, Hiínderson, J., which concurred. mean,
If the statute it means what the find majority Henderson Judge agree and I the doctrine double is not because jeopardy applicable, of the proceedings juve nile are court not criminal nature dispositions and its are punishment People crime. was so held Silver stein App.), 262 P. (Cal. 2d under a statute expressly if providing juvenile time commitment after authorities were incorrigible found to be or reformation, incapable he could returned for trial on charge crime. original Henderson Judge and I do not read Montgomery Act as the County majority do. We think that intends juvenile court, after full must either investigation, so that be tried the crim may court, inal or take retain jurisdiction. and Act, statutes—the wide Baltimore Act City State and those throughout country a common design that —have offenses, with the exception grievous acts committed by a child that would otherwise criminal are not to be so unless, after treated a full investigation, declares that are officially to be. The statutes they contem that in the plate cases the will great majority not seek State but punish salvage rather to In the ac delinquent. aim, of this complishment extends children State whose otherwise acts would be criminal same care training as children who are merely neglected destitute. pro cedures are used civil actions that look to inquiries treat ment, reformation and rehabilitation. 41 Cornell Law *8 147. Quarterly Act, Code, 1957, Montgomery Art. County Secs.
72-90, is accord. 74 that one of provides its Sec. “* * * is that such his purposes when child is removed from care, him family, own to secure for and custody, discipline as possible to that which should have nearly equivalent shall be provision liberally his This given by parents. purposes herein accomplish sought.” construed the Sec- exclusive of. children to delinquent tion 76 gives jurisdiction the Court of Montgomery County. of the Judge who defines a child as one “commits delinquent 78 Section which, be if committed an adult crime by act would any
533 death, is life who by or punishable by imprisonment; * * * * * is a truant *.” habitually or incorrigible Section been as- that child whose has provides any custody 82 (b) the custody sumed released by may court, other the or parent person appointed by or detained detention, disposition in a suitable the place “pending final the 83 court shall provides case.” that the (a) Section conduct all hearings informally hearings and may adjourn from that time time. 83 if the court finds (b) says Section child, that is a it delinquent may by place child order probation child on or of a relative or other custody makes, fit person upon such terms as it or the child commit to a or institution public private licensed or agency. Sec- tion that “in 83 the case when a child 16 (e) provides years or an offense age charged over is which would amount adult, to a in the case of an investi- felony judge, after full gation, may jurisdiction and order such child held regular trial under the procedure of court which would jurisdiction have of such offense if committed an adult.” 76 directs that “When shall (h) Section have * * *, been obtained such child shall continue the jurisdiction of the court until he becomes years * * unless age discharged prior thereto *.” (All emphasis supplied).
We think that provisions of statute make it plain that the judge given ample power when a is brought within potential jurisdiction of the court to make a com- and full which plete investigation may continue for as long facts, as is to ascertain all the necessary relevant there number of may hearings helpful for this accomplish- ment, available, when all facts are the judge then must them his evaluate and malee decision toas whether the child is a over whom the court delinquent will assume retain whether he is a who should be tried and punished by criminal court. The view, statute in our contemplates, this decision is the the case” disposition “final referred to in Sec. (b) and be, least, seem to analogous would res judicata and would the law case to and certainly if require, *9 534
court takes that “such child shall continue under jurisdiction, age of the court until he 21 of jurisdiction years becomes * * *,” unless thereto as discharged prior provided Sec. in the statute nothing contemplates 76 We find (h). taken, ex- loss of of a once delinquent, formally waiver, see no indication that the cept by “discharge”, and we be made after as that is to full is considered investigation, synonymous discharge. to the 87 there be an provides may appeal
Section circuit court from order or decree of the within “any judge”, confirm that days entry. of its This would seem to thirty either final of the case disposition by juvenile juris- waiver or of once assumption jurisdiction, although, ap- the court of course can make whatever diction is obtained circum- propriate discharge changes custodial or orders stances from time to time dictate. by
The construction we take of the Act has been found correct construction. Courts to Su Pennsylvania Holmes, of In re 103 A. 2d Court case perior stated 454, 458, “Furthermore, when the ordinarily, de court assumes makes an of jurisdiction, adjudication child, the case certify commits a it could not linquency based for criminal prosecution sessions quarter of Case, re 150 In Trignani’s the same violations law. 494, The case was affirmed 2d 702.” Super. Pa. A. the same name Pennsylvania Court of Supreme 523, 526, that the juve noted 2d where Court 109 A. if in his opinion that the judge might, nile provided court act it to certify a prosecution, interest required State the same as County proceedings the District Court of the attached, court had never the juvenile if could not that “such a certification went on to say made an adjudication Court had after the made ex nor, self-incriminatory after perhaps, delinquency child.” amination show, we are advised that not so does
While record number largest far City, where in Baltimore neither arise, County, which also nor in Baltimore cases courts number, respective juvenile ever have large has a *10 juris- in the after assuming favor of criminal courts waived in although, of a child as a least Balti- delinquent, diction that it there have City, requests more been number done. the as ma- permissible the statute
The consequences the reading read it such as to that jority suggest strongly are child, who find a had wrong. is court could juvenile criminal, be delinquent committed act otherwise to and an the training commit child to jurisdiction assume and the later, if the be “incorri- thought Years child to school. “truant”, in could favor the court waive gible” juvenile with the the criminal court that he could be charged so original criminal acts and tried sentenced. Reformation and rehabilitation seem be by hanging and would not to fostered doing committed for what every delinquent over criminal, adult, Damoclean would have been if done an threat which ever-present prosecution, of criminal Sword fall non-criminal acts far less serious would doing upon the Legis- than We cannot ascribe to original charges. lature an intent to such a result. permit not to
It is difficult to other a construction see objections has permits which a waiver after juvenile taken. than to The Act no further goes provide Sec. that of the nor any neither the evi- (e) disposition “in him be admissible evidence given against dence shall Undoubtedly, case or other court.” any proceeding careful a child incriminate permit not to to judges are himself made he is a until a decision is that must true that after equally assumed. jurisdiction is the child as he delinquent, the court takes offi- him to court and the urges cooperate probation past all that gone cers and to reveal has fully of rehabili- the court work hope might help it obtained, If, these disclosures have been after frank tation. to going court should decide court, be no there statu- appear would favor of the or the facts estab- they made reason statements tory why in the criminal could be used in aid prosecution lish done, as a matter would practical If this court. were hamper, if not destroy, workers ability probation obtain the confidence and cooperation of many delinquent children, would certainly detrimental seriously work of rehabilitation.
We think that in the case before us court was without power to send the boy to criminal court for trial and the judgment and sentence from should be re- appealed versed. OF ZONING OF
BOARD APPEALS BALTIMORE COUNTY al. et al. et BAILEY *11 Term, 1957.] September [No.