Albert PEYTON, a minor, Petitioner, v. Tom NORD, Sheriff of Chaves County, New Mexico, and George L. Reese, Jr., Sitting as Judge of the Juvenile Court, of the Fifth Judicial District, Chaves County, New Mexico, Respondents.
No. 8456.
Supreme Court of New Mexico.
Feb. 26, 1968.
437 P.2d 716 | 78 N.M. 717
A claim of entrapment does not state a basis for post-conviction relief. State v. Apodaca, 78 N.M. 412, 432 P.2d 256; Anderson v. United States, (9th Cir. 1964), 338 F.2d 618; Moore v. United States, (5th Cir.1964), 334 F.2d 25; Ellison v. United States, (10th Cir.1960), 283 F.2d 489, cert. denied, 365 U.S. 885, 81 S.Ct. 1038, 6 L.Ed.2d 196. Appellant‘s claim, that he was entrapped and threatened into committing a crime, will not be considered by us.
The district court‘s conclusions of law which are subject to attack here are based upon findings of fact supported by substantial evidence.
Finding no error, the district court‘s denial of appellant‘s motion is affirmed. It is so ordered.
MOISE, J., and EDWARD E. TRIVIZ, D. J., concur.
Boston E. Witt, Atty. Gen., Gary O‘Dowd, Asst. Atty. Gen., Santa Fe, for respondent Nord.
Morris Stagner, Dist. Atty., Clovis, W. Byron Caton, Farmington, as amicus curiae.
PER CURIAM:
Upon consideration of motion for rehearing the opinion heretofore filed is withdrawn and the following substituted therefor:
OPINION
MOISE, Justice.
This is an original proceeding wherein petitioner seeks habeas corpus to effect his release from the custody of the sheriff of Chaves County. The record discloses that petitioner is a minor who was adjudged to come within the Juvenile Code of New Mexico, in that he violated
Honorable George L. Reese, Jr., sitting as Judge of the Juvenile Court of the Fifth Judicial District, Chaves County, New Mexico, is named as a respondent. He is not a proper party since only the person having the physical custody of a petitioner, and who is able to produce him in court, may properly be named as respondent in a habeas corpus proceeding. Dunbar v. Cranor, 202 F.2d 949 (9th Cir. 1953); Clark v. State, 122 So.2d 807 (Fla.D.Ct. of App.1960); Moore v. United States, 339 F.2d 448 (10th Cir. 1964); State v. Clark, 270 Minn. 181, 132 N.W.2d 811 (1965). Respondent, Judge Reese, is accordingly dismissed as a party.
Although petitioner sets forth five points in his brief, only three serious questions are in fact presented. (1) Is the Juvenile Code adopted in 1955 and the juvenile court therein created, constitutional? (2) Was the denial of a trial by jury a denial of constitutional rights guaranteed by the United States Constitution and the New Mexico Constitution? (3) Does the fact that petitioner could and did receive a penalty different from that provided when adults violate the same provisions of law deny the petitioner due process of law and equal protection of the law?
All of the questions as thus enumerated are serious and difficult. The issue of the constitutionality of the juvenile laws preceding the 1955 Code (ch. 205, N.M.S.L. 1955) and the courts thereby created has been heretofore considered by this court. In State v. Eychaner, 41 N.M. 677, 73 P.2d 805 (1937), the question of the right to appeal from the juvenile court created by ch. 87, N.M.S.L.1921, was presented. It was there held that the juvenile court was a court inferior to the district court created under authority of
Thereafter, in the case of In re Santillanes, 47 N.M. 140, 138 P.2d 503 (1943), a many-pronged assault was leveled on the 1921 juvenile court law (ch. 87, N.M.S.L.
The 1955 Juvenile Code has never been considered by this court except in State v. Urioste, 63 N.M. 335, 319 P.2d 473 (1957), where without examining any possible change in the nature of the juvenile court as organized under the Code, from that created by ch. 87, N.M.S.L.1921, it was determined that ch. 205, § 41, N.M.S.L.1955, providing for an appeal from juvenile court to the Supreme Court, violated
The instant case is not an appeal and our jurisdiction arises out of
We are here called upon to examine our Constitution and the 1955 Juvenile Code as related thereto and, based thereon, to arrive at a conclusion as to whether the court created by the Code can withstand an attack on its constitutionality. The really pertinent provision is
“The judicial power of the state shall be vested in the senate when sitting as a court of impeachment, a Supreme Court, district courts, probate courts, justices of the peace, and such courts inferior to the district courts as may be established by law from time to time in any county or municipality of the state, including juvenile courts.”
“The district court shall have original jurisdiction in all matters and causes not excepted in this Constitution, and such jurisdiction of special cases and proceedings as may be conferred by law, and appellate jurisdiction of all cases originating in inferior courts and tribunals in their respective districts, and supervisory control over the same. The district courts, or any judge thereof, shall have power to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari, prohibition, and all other writs, remedial or otherwise in the exercise of their jurisdiction; provided, that no such writs shall issue directed to judges or courts of equal or superior jurisdiction. The district courts shall also have the power of naturalization in accordance with the laws of the United States. Until otherwise provided by law, at least two terms of the district court shall be held annually in each county, at the county seat.”
These sections of our Constitution clearly specify the jurisdiction of the district courts, and authorize creation by the legislature of courts inferior to district courts in any county or municipality of the state. However, we do not consider that
Our first juvenile court was established in 1917 by ch. 4, N.M.S.L.1917. It was provided in Section 2 thereof, that “The district court of each county in this state shall have exclusive original jurisdiction over juvenile delinquents and over those who contribute to such delinquency * * * and while sitting in exercise of its said jurisdiction shall be known and referred to as the juvenile court.” An appeal was provided to the Supreme Court from judgments involving persons contributing to juvenile delinquency, “in the same manner as other final judgments from the district court.” No provision was made for appeals from other determinations made under the act. However, it seems amply clear that the “juvenile court” created by this act was nothing more than the district court while sitting and considering the matters covered thereby. Notwithstanding its jurisdiction over juvenile matters, that it was not a court inferior to the district court created for a county or municipality, and was not in conflict with the restraints of
However, what was the situation under ch. 87, N.M.S.L.1921? That act changed ch. 4, sec. 2, N.M.S.L.1917, creating the juvenile court, to read, “There is hereby established in each County of this State a Court to be known as the ‘Juvenile Court of ________ County, New Mexico.’ Said court shall have exclusive original jurisdiction over juvenile delinquents and over those who contribute to their delinquency, and over all matters arising under this act. The District Judges of the State shall be the Judges of the Juvenile Courts in the Counties of their respective districts; * * *” (Emphasis added). In view of the change from “the district court of each county” as the juvenile court, to the establishment in each county of a juvenile court presided over by the district judge, it is not surprising that questions should have arisen as to whether, after 1921, the juvenile court was constitutionally created. Under this act, was the jurisdiction attempted to be given to the juvenile courts vested in the district courts by
Although the means to counter the attacks addressed to the constitutionality of the court were found, it is quite evident from a careful reading of the opinion that the court was hard-pressed to do so in certain areas. We note particularly the statement of the court in In re Santillanes, supra, that “If Chapter 4, Laws 1917, as amended by Chapter 87, Laws of 1921, undertakes to abrogate the jurisdiction of district courts reposed by that portion of Section 13 of Article VI of the Constitution, as follows: ‘The district court shall have original jurisdiction in all matters and causes not excepted in this constitution’ a serious question might be presented.” We would likewise note the following, also quoted from that case:
“Over this period hundreds of our youth have suffered judgments of juvenile delinquency and been forcibly detained. At the moment, the New Mexico Industrial School for Boys, at Springer,
and the Girls Welfare Home at Albuquerque have their quotas of juvenile delinquents forcibly detained for varying periods. If in this proceeding we are to have a declaration that there is no juvenile court, as petitioner contends, and never has been, then hundreds have been, and scores now are, illegally restrained of their liberties. Every inmate of either institution upon proper application should receive his or her discharge and every boy and girl in every county in the state under probation by order of the juvenile court is subject to release therefrom. These are but a few of the serious and weighty consequences to follow a declaration in this proceeding at petitioner‘s instance of the effect claimed for it, that there is [not] and never has been a juvenile court. “It is for the state, a sovereign, not for a private suitor, to invite a decision of the questions he raises. Whatever the true rule may be for an application of the de facto doctrine as respects the existence of a de jure office before there can be a de facto officer—and the authorities present a sharp conflict on the subject—this court in City of Albuquerque v. Water Supply Co., supra [24 N.M. 368, 174 P. 217, 5 A.L.R. 519], approved in Ackerman v. Baird, supra [42 N.M. 233, 76 P.2d 947], expressly declined to follow Norton v. Shelby County, 118 U.S. 425, 6 S.Ct. 1121, 30 L.Ed. 178, the leading case, in giving rigid adherence to the condition that there must be a de jure office before there can be a de facto officer. We held, on the contrary, that where uncertainty, chaos and confusion would result if the requirement were rigidly adhered to, public policy forbade upholding the condition. We think this is such a case. * * *”
Moving to the 1955 Code, the constitutionality of which, as already noted, has been considered by the court only in State v. Urioste, supra, we find that once again the legislature established “in each judicial district of this state a court to be styled as the ‘Juvenile Court of the ________ Judicial District for ________ county, New Mexico.’ * * *” (Emphasis added). (
As we understand petitioner‘s argument, it proceeds on the theory and premise that the juvenile court created in 1955 is a court inferior to the district court and, accordingly, under
Although it is interesting to note that ch. 87, § 1, N.M.S.L.1921, was not repealed by the 1955 Juvenile Code, and a contention could be made that the court thereby created continued in existence after 1955 along with the court provided for by the Code, that question is no longer open since the section was specifically repealed in 1965 (ch. 240, § 2, N.M.S.L.1965). Respondent suggests in his brief that the failure to repeal the 1921 provision creating the juvenile court may explain the decision in State v. Urioste, supra. In our view, a more likely explanation is the one already noted that counsel failed to argue and this court to consider, that the juvenile court created in 1955 was in reality the district court exercising the jurisdiction over juveniles granted by the act and was not a court inferior to the district court. Whatever the basis or reason, we are satisfied that since 1955 the juvenile court has been invulnerable to attack as violative of either
Whether the right to jury trial in all proceedings in juvenile court is guaranteed by either the federal or state constitutions need not be decided in this case. Whatever the correct answer to that question may be, under the facts here present petitioner is guaranteed a jury trial by our Constitution. This is true whether or not the
There can be no question that prior to the adoption of our first juvenile law in 1917 (Ch. 4, N.M.S.L.1917), a minor charged with having committed a criminal offense was handled no differently than an adult. See In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). Under the provisions of
Petitioner is here charged with being a juvenile delinquent because of alleged violations of criminal law. The ultimate consequences, if it is determined that the charge is true, may be confinement in New Mexico Boys’ School.
“Ultimately, however, we confront the reality of that portion of the juvenile court process with which we deal in this case. A boy is charged with misconduct. The boy is committed to an institution where he may be restrained of liberty for years. It is of no constitutional consequence—and of limited practical meaning—that the institution to which he is committed is called an Industrial School. The fact of the matter is that, however euphemistic the title, a ‘receiving home’
or an ‘industrial school’ for juveniles is an institution of confinement in which the child is incarcerated for a greater or lesser time. His world becomes ‘a building with white-washed walls, regimented routine and institutional hours * * *’ Instead of mother and father and sisters and brothers and friends and classmates, his world is peopled by guards, custodians, state employees, and ‘delinquents’ confined with him for anything from waywardness to rape and homicide.”
The purpose of the proceeding to determine “delinquency” is to decide whether the accused is responsible for prohibited conduct and, when criminal, as noted, the consequences may be the same as in the case of an adult. Indeed, it is even possible that ultimately this could result in the juvenile being incarcerated in the penitentiary with adult offenders.
“It would be entirely unrealistic to carve out of the Fifth Amendment all statements by juveniles on the ground that these cannot lead to ‘criminal’ involvement. In the first place, juvenile proceedings to determine ‘delinquency,’ which may lead to commitment to a state institution, must be regarded as ‘criminal’ for purposes of the privilege against self-incrimination. To hold otherwise would be to disregard substance because of the feeble enticement of the ‘civil’ label-of-convenience which has been attached to juvenile proceedings. Indeed, in over half of the States, there is not even assurance that the juvenile will be kept in separate institutions, apart from adult ‘criminals.’ In those States juveniles may be placed in or transferred to adult penal institutions after having been found ‘delinquent’ by a juvenile court. For this purpose, at least, commitment is a deprivation of liberty. It is incarceration against one‘s will, whether it is called ‘criminal’ or ‘civil.’ * * *”
We see no escape from the conclusion that at the time of the adoption of our constitution petitioner could not have been imprisoned without a trial by jury. This being true, no change in terminology or procedure may be invoked whereby incarceration could be accomplished in a manner which involved denial of the right to jury trial. Hamilton v. Walker, 65 N.M. 470, 340 P.2d 407 (1959); Gutierrez v. Gober, 43 N.M. 146, 87 P.2d 437 (1939).
It follows that without concerning ourselves with whether the proceeding is denominated “civil,” “criminal,” “special,” or something “entirely different.” State v. Acuna, 78 N.M. 119, 428 P.2d 658 (1967); In re Santillanes, supra, the provisions of
We would add that if the reasoning of In re Gault, supra, is applied in this case it would be difficult, in our view, to escape the conclusion that the jury trial guaranties of
In approaching the problem, we clearly keep in mind the rules of construction which require us to construe each word or phrase used in a statute in connection
The applicable provisions are
“13-8-26. The juvenile court shall have exclusive original jurisdiction in proceedings:
“A. Concerning any juvenile under the age of eighteen [18] years living or found within the county:
“(1) Who has violated any law of the state, or any ordinance or regulation of a political subdivision thereof; * * *”
“13-8-49. 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. * * *”
As we read the quoted language of the statute, the juvenile court obtains exclusive original jurisdiction over a juvenile under the age of eighteen years “[w]ho has violated any law of the state, * * *” We consider it significant that the jurisdiction attaches, not when a juvenile has been charged with a violation but when he “has violated” a state law. How, and by whom is the determination of whether he has done so to be made? As we see it, these questions must be answered before the juvenile may be dealt with. We explained above how this must be done. We now answer the question of who shall make the determination by holding that it shall be done by the juvenile court. That court, entrusted with the handling of juvenile violators, must have power to determine the presence of facts upon which its jurisdiction is based. Sunray DX Oil Co. v. Federal Power Com‘n, 351 F.2d 395 (10th Cir. 1965); Sun Ins. Co. v. Boyd, 105 So.2d 574 (Fla.1958); Fox Park Timber Co. v. Baker, 53 Wyo. 467, 84 P.2d 736, 120 A.L.R. 1020 (1938); Strother v. Day, 279 S.W.2d 785 (Ky. 1955); compare State ex rel. State Corp. Commission v. Zinn, 72 N.M. 29, 380 P.2d 182 (1963), where jurisdiction of an administrative agency was involved. It is only after facts required to vest jurisdiction have been found to be present that the exclusive original jurisdiction to deal with the juvenile attaches. When the jurisdiction has been determined, the juvenile court proceeds under
We have in no sense overlooked
“No person under the age of eighteen [18] years shall be charged with commission of any offense, including a felony, in any court other than the juvenile court and any person knowingly
charging a child under eighteen [18] years of age with an offense in any court other than the juvenile court may be punished for contempt of the juvenile court by the judge thereof. Provided, however, that if any child fourteen [14] years of age or older is charged in juvenile court with an offense which would be a felony if committed by an adult, and if the court after full investigation deems it contrary to the best interests of such child or of the public to retain jurisdiction, the court may in its discretion certify such child for proper criminal proceedings to any court which would have trial jurisdiction of such offense if committed by an adult; but no child under fourteen [14] years of age shall be so certified. * * *”
It is because of the language last quoted that we conclude the determination of violation of a state law by a juvenile must be made in the juvenile court unless as provided therein the court certifies the child for criminal proceedings in district court. We know of no provision in our laws that in any way inhibits against jury trials in juvenile court to determine whether the juvenile charged with violation of state law has in fact violated the law. We do not read
Although the statutes are not comparable, other courts have so held. See State ex rel. Shaw v. Breon, 244 Iowa 49, 55 N.W.2d 565 (1952); In re Sanders, 53 Kan. 191, 36 P. 348, 23 L.R.A. 603 (1894). New Jersey has also held that trial by jury could not be denied a juvenile charged with an indictable crime. Ex parte Daniecki, 117 N.J.Eq. 527, 177 A. 91 (1935), aff‘d, 119 N.J.Eq. 359, 183 A. 298 (1936). However, this holding was later held to apply only where a juvenile was charged with murder. State v. Goldberg, 124 N.J.L. 272, 11 A.2d 299 (Sup.Ct.1940), aff‘d, 125 N.J.L. 501, 17 A.2d 173 (E & A 1940). Thereafter, the law was amended and New Jersey then adopted the rule almost universally applied that the proceeding was not criminal, and jury trial was not required. State v. Monahan, 15 N.J. 34, 104 A.2d 21, 48 A.L.R.2d 641 (1954).
For the last word from New Jersey, see In re State in Interest of Carlo, 48 N.J. 224, 225 A.2d 110, 116 (1966), wherein it is said, “Assuming a juvenile is not entitled to all the constitutional requirements of a criminal trial, we firmly believe he is at least entitled to a fact-finding process which measures up to the essentials of due process and fair treatment.” We wholeheartedly subscribe to this principle.
In 46 Cornell L.Q. 387, 400 (1961), it is stated that juries in juvenile court proceedings are provided for in almost half of the states. Indeed, the right to trial by jury in certain circumstances under the law as it existed prior to 1955
No issue being presented as to whether Count II is a petty offense if committed by an adult, and for which a jury is not required under Hamilton v. Walker, 65 N.M. 470, 340 P.2d 407 (1959), we have not considered if it is, or is not, of that class. Count I is a felony if committed by an adult and there is no question that the constitution guarantees a right to jury trial.
We are not unaware that many experts in the field of juvenile court problems urge that it is to the child‘s best interest not to have a public jury trial. See Paulsen, Fairness to the Juvenile Offender, 41 Minn.L.Rev. 547, 549 (1957); 67 Colum.L.Rev. 281 (1967); 114 U.Pa.L.Rev. 1171, 1186 (1966); 46 Cornell L.Q. 387 (1961). Be this as it may, we are impressed with the continuing validity of the statement of Justice Bickley in his dissent in In re Santillanes, supra, where he said, “The rights of the individual guaranteed by the constitution cannot be determined by the criterion of whether we think them useful or otherwise,” and consider it equally pertinent where statutory mandates are being considered.
In view of our conclusion that the denial of a jury trial by the juvenile court was error and that the writ must be made permanent, it is not necessary that we consider or answer the additional point argued that a constitutional question is presented because of the difference in periods which might have to be served in a reform school by a juvenile, as compared with that to which an adult could be sentenced to serve in prison.
No jury trial having been accorded to petitioner, although requested, the writ of habeas corpus heretofore issued should be made permanent.
It is so ordered.
CHAVEZ, C. J., and COMPTON and CARMODY, JJ., concur.
NOBLE, J., 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 by 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
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. * * * The 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
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 difference 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
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
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.
“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
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
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.