Opinion
June 12, 1972.
November 16, 1972.
Criminal Law — Jurisdiction — Juveniles — Non-age of juvenile not jurisdictional matter — Duty of criminal court to transfer case to juvenile court.
1. Under the Act of June 2, 1933, P.L. 1433, as amended (which provides that a criminal proceeding shall be transferred to the juvenile court if it shall be ascertained that the person charged was under the age of sixteen at the time the alleged offense was committed), the fact of non-age is not a jurisdictional matter.
2. In this proceeding for post-conviction relief on the ground that the criminal court had no jurisdiction, in which it appeared that, although defendant at the time of the offense was less than sixteen, he told the court he was nineteen, it was Held that the statute did not deprive the court of jurisdiction but imposed a duty to transfer only if non-age was ascertained during the pendency of the criminal charge.
Before WRIGHT, P.J., WATKINS, JACOBS, HOFFMAN, SPAULDING, CERCONE, and PACKEL, JJ.
Appeal, No. 217, Oct. T., 1972, from order of Court of Common Pleas, Trial Division, of Philadelphia, Aug. T., 1968, No. 79, in case of Commonwealth of Pennsylvania v. Dave Harris. Order affirmed.
Petition for post-conviction relief. Before DOTY, J.
Order entered dismissing petition. Defendant appealed.
Jack M. Myers and Zack and Myers, for appellant.
Steven H. Goldblatt and Milton M. Stein, Assistant District Attorneys, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Submitted June 12, 1972.
It is the duty of a judge to transfer a criminal proceeding to the juvenile court if "it shall be ascertained that the person charged with the offense was under the age of 16 years at the time the alleged offense was committed. . . ." The appellant at the time of the offense was less than 16 but he told the court he was 19. He asks for post-conviction relief on the ground that the criminal court had no jurisdiction.
Act of June 2, 1933, P.L. 1433, § 14 as amended, 11 P. S. § 256.
If the statute made non-age a jurisdictional matter, the conviction might well be improper notwithstanding appellant's false testimony. However, the statute here does not deprive the court of jurisdiction but imposes a duty to transfer only if non-age was ascertained during the pendency of the criminal charge.
A survey of other jurisdictions reveals a divergence of opinion. For those courts which consider non-age to be a matter of jurisdiction, see, State v. Dubray, 121 Kan. 886, 250 P. 316 (1926); White v. Commonwealth, 242 Ky. 736, 47 S.W.2d 548 (1932); State v. Walker, 178 La. 635, 152 So. 315 (1934); Wheeler v. Shoemake, 213 Miss. 374, 57 So.2d 267 (1952); Ex parte Pyzer, 29 Okla. Cr. 156, 232 P. 962 (1925); Ex parte Albiniano, 62 R.I. 429, 6 A.2d 554 (1939). For those courts which consider non-age to be a mere defense, see, People v. Luzovich, 127 C.A. 465, 16 P.2d 144 (1932); State v. Flores, 332 Mo. 74, 55 S.W.2d 953 (1932); State v. Klingenberger, 113 Ohio 418, 149 N.E. 395 (1925); Valdez v. State, 98 Tex.Crim. 166, 265 S.W. 161 (1924); State ex rel. Hinkle v. Skeen, 138 W. Va. 116, 75 S.E.2d 223 (1953), cert. denied 345 U.S. 967 (1953). The jurisdictional viewpoint was explicitly adopted by the American Law Institute, Model Penal Code, § 4.10 comment (Tent. Draft No. 7, 1957) at 20.
Order affirmed.