216 S.W.2d 925 | Ky. Ct. App. | 1949
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *173 Reversing.
By a habeas corpus proceeding the appellant, Robert H. Robinson, seeks release from the Reformatory in which he is confined as a prisoner for life on his conviction of the crime of armed robbery. His claim rests upon the proposition that the judgment under which he is confined is void because steps necessary to the jurisdiction of the court were not taken. In turn, that goes back to proceedings in the Juvenile Court of Allen County. This habeas corpus proceeding was tried on attested copies of judgments of the Allen Quarterly Court and the Allen Circuit Court. The first recites that the defendant, Robinson, appeared in person and by counsel and waived his right to an examining trial on a warrant charging him with the crime. Further, "It appearing that the defendant, Robert H. Robinson, is a juvenile sixteen years of age, therefore coming under the jurisdiction of this Court unless said jurisdiction be waived, it is now ordered that the juvenile jurisdiction of this Court over said Robert H. Robinson be and it is hereby waived to the Allen Circuit Court."
Upon failure to execute an appearance bond, the defendant was ordered to jail to await trial. The record of the Allen Circuit Court is of the indictment, trial, judgment and sentence. These are in the usual form and without reference to the defendant being a juvenile offender.
The statutes prescribe that a juvenile court shall give notice of its proceedings to the child's parents or guardian or other person standing in loco parentis and that summons shall issue requiring the person having his custody to appear for a hearing as to the disposition to be made of the child. KRS
We have held that where the provisions as to service and return of the process have not been followed the circuit court to which the case has been transferred has no jurisdiction. Commonwealth v. Davis,
Ordinarily there is no presumption of jurisdiction of a county court for it is inferior and limited and jurisdiction must be affirmatively shown. Taylor v. Moore,
We have had several cases involving the question of jurisdiction of the circuit court in relation to procedure in the juvenile court, but in every one of them the question was raised on an appeal as a direct attack upon the judgment. Among them are Commonwealth v. Davis,
A habeas corpus proceeding where release from custody or restraint is held under a judgment is a collateral attack upon the judgment, and the right to the writ exists only when the judgment is void. Department of Public Welfare v. Polsgrove,
As we have stated, the circuit court is regarded as one of secondary and limited jurisdiction. But it is so only because it must receive the case for final trial by transfer from the county court sitting in juvenile session. The jurisdiction of the county court within the definition of the statute governing the trial and disposition of delinquent juveniles charged with committing criminal offenses is precedent. Jurisdiction first attaches or vests in the county court sitting as the juvenile court. The secondary jurisdiction of the circuit court rests upon proper procedure and disposition in that initial court. Otherwise, prosecution of minor defendants who fall within the statutory classification under the Criminal Code of Practice is precluded. If jurisdiction of the child be not acquired by the juvenile court, then, of course, it may not be transferred. Failure to take notice of the distinction has resulted in some unconsistencies in our several opinions. And because of the unusual condition some difficulty is encountered in considering the matter of presumptions of jurisdiction in determining whether or not a judgment of a circuit court committing a juvenile offender to prison is voidable or void. But we do not really reach the point of resolving the questions of presumptions in the present case even though it is a collateral attack upon both judgments.
It is to be observed from our statement that the order transferring the petitioner's case to the circuit court was that of the Allen Quarterly Court. It is in the capacity of a magistrate or judge of the county court that examining trials are held — not the quarterly court. Criminal Code of Practice, secs. 26, 28, 49. And proceedings *176
for the disposition of juveniles as delinquents are had in the county court at a particularized session having a docket and record separate and distinct from other proceedings of the county court. KRS
We are of opinion that the Allen Circuit Court did not acquire jurisdiction of the appellant and that the Oldham Circuit Court, in which this habeas corpus proceeding was had and from whose judgment this appeal is prosecuted, should have granted the writ prayed. His commitment to the prison was upon a void judgment.
It does not follow, however, that the petitioner's immediate discharge should be ordered. Notice to the prosecuting authorities of Allen County should be given and reasonable opportunity afforded them to proceed in due and proper manner. There has been no bar to a renewal of the inquiry as to the disposition to be made of the charge against the accused. Compton v. Commonwealth, supra,
In this state it is held that the age of the child at the time when the alleged offense or act of delinquency was committed rather than the age at the time of his trial must govern in determining whether the juvenile court takes jurisdiction. Mattingly v. Commonwealth,
The judgment is reversed for appropriate proceedings. *178