Johnson v. State

Orth, J., delivered the opinion of the Court. On October 4, 1966 the appellant, a boy 14 years of age at the time of the commission of the crime for which he was convicted, was found guilty of murder in the first degree in the Criminal Court of Baltimore, by the court sitting without a jury and sentenced to imprisonment for the balance of his natural life. 1 The circumstances of the commission of the crime and its perpetration by the appellant are not disputed. On November ¹⁰⁸ 10, 1965, about 8:00 P.M. the appellant seized the purse of a woman, disclosed by hospital records and the autopsy report to have been 75 years of age, 5 feet 3 inches in height and weighing 91 pounds, while she was walking on Cathedral Street near Centre Street. In resisting the robbery she was thrown to the gound, sustaining fractures of the pelvis, arm and hand and lacerations about the face and head, as a result of which she developed lobar pneumonia and died on November 21, 1965.

The appellant took the stand and in the course of his testimony admitted that he had “snatched the purse.” On appeal the appellant contends that: 1. he was placed twice in jeopardy; 2. evidence relating to the robbery was inadmissible. As the basis for both the contentions, the appellant states that a petition alleging that he was a delinquent child was filed in the Circuit Court of Baltimore City having jurisdiction in juvenile causes on November 12, 1965, on which date a hearing was held and the appellant was determined to be a delinquent child on the facts of the robbery. He was ordered detained at Boy’s Village pending a social investigation and further hearing. He was indicted by reason of the death of the robbery victim and the matter before the juvenile court was dismissed.

Evidence of the proceedings in the juvenile court were not proffered at the trial of the substantive offense and the question presented by the contentions were not raised before or tried and decided by the trial court. The questions were raised in argument on hearing on a motion for a new trial but the denial of that motion is not before us. McCoy v. State, 236 Md. 632 . Not being tried and decided by the lower court before or at the trial, the questions need not be considered by us on appeal unless they invoke matters of the jurisdiction of the trial court, which are always before this Court, where jurisdiction cannot be conferred by waiver or consent of the parties.

Tate v. State, 236 Md. 312 ; Dortch and Garnett v. State, 1 Md. App. 173 ; Crum and Dunbar v. State, 1 Md. App. 132 ; Whitmer v. State, 1 Md. App. 127 ; Maryland Rules, 1085. Counsel for the appellant argued before us that the defense of double jeopardy goes to the jurisdiction of the trial court. We see no need to decide that point, preferring to treat the question as properly ¹⁰⁹ before us on the assumption, for the purpose of decision only, that the matter is jurisdictional. On this assumption and on the further assumption that the juvenile proceedings were in fact as stated, we shall consider it. 2 DOUBLE JEOPARDY The appellant alleges that he was placed in jeopardy by the determination that he was a delinquent child in the juvenile proceedings on evidence that he committed the robbery and that he was put twice in jeopardy by the conviction of murder in the first degree as committed in the perpetration of the same robbery.

A factual situation comparable to the instant case was presented to the Court of Appeals in Moquin v. State, 216 Md. 524 and the same contention raised. In Moquin the defendant was found to be a delinquent child in the Juvenile Court for Montgomery County on petition that he set fire to houses and committed an assault. He was committed to a psychiatric institution and the case was continued pending further order of the court. He eloped, his commitment was rescinded and the juvenile court waived jurisdiction.

He was thereupon charged in criminal informations with arson, burglary and assault with intent to murder and tried, convicted and sentenced after motions to dismiss on the ground that the prosecutions would place him twice in jeopardy for the same offenses, relying on the proceedings in the juvenile court, were denied. The Court said, page 528 that the concept of double jeopardy “* * * clearly contemplates that the action which bars a second prosecution must be one instituted in a court which has the power to convict and punish the person prosecuted for his criminal conduct.” 3 Stating that the rule “* * * is applicable only when the first prosecution involves a trial before a criminal court or at least a court empowered to impose punishment by way of fine, imprisonment or otherwise as a deterrent to the commis ¹¹⁰ sion of crime,” (p. 528), it found that the juvenile court did not subject the defendant to the risk of those penalties: “The juvenile act does not contemplate the punishment of children where they are found to be delinquent. The act contemplates an attempt to correct and rehabilitate. Emphasis is placed in the act upon the desirability of providing the necessary care and guidance in the child’s own home, and while the act recognizes that there will be cases where hospital care or commitment to a juvenile training school or other institution may be necessary, this is all directed to the rehabilitation of the child concerned rather than punishment for any delinquent conduct.” 216 Md. at 528 .

It concluded that an adjudication of delinquency in the Juvenile Court for Montgomery County did not bar the defendant’s prosecution in the circuit court. We cannot distinguish, in this frame of reference, the act conferring jurisdiction on the Juvenile Court for Montgomery County and the act conferring jurisdiction on the Circuit Court of Baltimore City. The appellant argues further that proof of the commission of the robbery was determinative both of his being found to be a delinquent child and being found guilty of murder in the first degree. Therefore, he alleges, the offenses are not separate and distinct, but “merged in such a manner as to constitute one offense.” Thus, he concludes, being found to be a delinquent child precludes prosecution for murder.

This argument is predicated upon two presumptions: (1) that being a delinquent child is a crime; and (2) that the elements of its proof are necessary ingredients of the crime of murder in the first degree under the facts of this case. The juvenile act clearly provides that the charge of delinquency is not a charge of a commission of a crime and that a child found to be delinquent shall not be deemed a criminal. Charter and Public Local Laws of Baltimore City, stipra, Art. 4, § 242 and § 249. But even assuming that it is a crime and further assuming that the elements of its proof are necessary ingredients of the crime of murder in the first degree i (which we specifically do not decide), the appellant reaps no benefit.

The juvenile court had exclusive jurisdiction over the ¹¹¹ appellant in the determination of his delinquency and no jurisdiction to try him for murder. Charter and Public Local Laws of Baltimore City, supra, Art. 4, § 240 (d) (1). He was never placed in jeopardy for the greater offense by being “prosecuted” for the lesser “offense” before a court having no jurisdiction to try him for the greater offense. Bennett v. State, 229 Md. 208.

The appellant also alleges that an adult tried before a juvenile court can assert the defense of double jeopardy in a subsequent criminal proceeding, citing Bennett v. State, supra, as authority. It follows, he claims, that to prohibit the defense to a child would deny that child due process of law or equal protection of the laws. Again assuming, but not deciding, that such defense is so available to an adult, the distinction between the adult and the child is obvious. The adult, unlike the child, is subject to punishment in juvenile proceedings by fine or imprisonment.

Charter and Public Local Laws of Baltimore City, supra, Art. 4, § 243. The appellant urges that the applicability of the rule of double jeopardy in the instant case must be considered in the light of Kent v. United States, 383 U. S. 541 , 86 S. Ct. 1045 , decided March 21, 1966 and In re Gault, 387 U. S. 1 , 87 S. Ct. 1428 , decided May 15, 1967. He claims that “the matter of Juvenile Courts and its procedures, as well as the rights of juveniles have been tremendously affected” by those cases. The thrust of his argument is that Kent and Gault “have clearly abolished” the concept that a delinquent child is not punished and that proceedings against such child are directed to his rehabilitation.

He says that those cases “have clothed the juvenile with virtually all of the constitutional protections afforded an adult in a criminal case,” and a “juvenile matter under today’s standards is the same as another criminal case.” He urges on this premise that the rationale of Mo quin is no longer appropriate and its decision not controlling in the appellant’s case. With regard to Kent we found in State v. Hance, 2 Md. App. 162, that it was clearly concerned with the interpretation of the Juvenile Court Act of the District of Columbia and its effect, therefore, is limited to that jurisdiction. The Supreme Court declined to rest its decision on constitutional grounds. 383 U. S. at 556 . With regard to Gault it seems that the appellant would have us ¹¹² apply its rationale or philosophical