Montana Attorney General Opinion 17-5

Opinion No.5. Montana Highway Patrol-Minors- Traffic Laws, Violation of. H E L D: Under Sections 10729, 11753-11754. 10730 R. C. M. 1935, Per- sons over seven years of age are cap- 6 OPINIONS OF THE ATTORNEY GENERAL able of committing a crime and are liable to arrest and punishment there- for. December II, 1936. l\'Iontana Highway Patrol Board Helena, Montana Gentlemen: In your letter of December 1 you ask for the opinion of this office upon the following questions: 1. "Maya Montana Highway Pa- trolman arrest a minor for violating a Montana traffic law?" Persons over the age of seven years are capable of committing- a crime (Section 10729, R. C. M. 1935), and are liable to arrest (Sections 11753-11754 R. C. M. 1935) and punishment there- for under the laws of this state. (Sec- tion 10730. R. C. M. 1935). Your ques- tion is therefore an swered in the affirm- ative. 2. ".\fray this minor be taken be- fore a justice of the peace and fined or given a jail sentence?" Chapter 106 of the Code of Criminal Procedure, R. C. M. 1935, provides for the procedure to be taken against de- linquent children and juvenile delin- quent persons. Section 12280 of said chapter provides "that nothing herein shall be construed to confer jurisdiction upon any justice of the peace or police court to try any case against any child under 18 years of age." The same sec- tion provides that charges brought against such children under the age of 18 years shall be tried by the district court, and accordingly this question must be answered in the negative. 3. "In some cases probation offi- cers have come in and taken custody of the minor after he has been arrest- ed by a patrolman, informing the pa- trolman that he had no jurisdiction over a minor." Sections 12275 and 12276 R. C. M. 1935 define delinquent children as those under the age of 18 years who violate "any law of this state." Section 12280 requires that whenever any such child is taken into custody he must be brought either directly before the dis- trict court, or if the district court is not then in session, before a justice of the peace "who shall at once notify the chief probation officer of the county, who shall make investigation of such case * * * then the justice of the peace or police magistrate shall act as a committing and examining magistrate only * * *." Section 12288, R. C. M. 1935, re- quires the probation officer to inquire into and make full examination and in- vestigation of the facts and circum- stances surrounding the commission of the alleged offense, the parentage and surroundings of the child, its exact age, habits and school record, and everything that will throw light on its life and character, and to report the findings of his investigation to the judge of the district court. The law also authorizes the probation officer to take the child in custody and control, and accordingly he acts .according to law when he proceeds as outlined in your third question. 4. "In cases of a jail sentence be- ing given. maya minor be placed in the same cell or jail as other prison- ers?" The punishment, and place of con- finement. if any, is left, according to Section 12288 R. C. M. 1935, in the dis- cretion of the District Judge except that "when a child contemplated by this act shall be sentenced to confine- ment in any institution to which adult convicts are sentenced, it shall be un- lawful to confine such child in any room. yard or enclosure with such adult convicts, or to allow them in any manner to come in contact with them or in any way commingle with such adult convicts, or to bring such child into any yard or room in which adult convicts may be present." Ac- cordingly your fourth question must also be answered in the negative. Section 12299 of the Delinquent Child Act declares that "this Act shall be liberally construed to the end that its provisions may be carried out, to-wit: that the care, custody, education and discipline of the child shall approxi- mate. as nearly as may be, that which should be given by its parents, and that, as far as practicable, any delinquent child shall be treated not as a criminal, but as misdirected and misguided, and needing aid, encouragement. help and assistance." To the same effect is the view of the Supreme Court of Montana, as ex- OPINIONS OF THE ATTORNEY GENERAL 7 pressed in State ex rei Palagi v. Freeman, 81 Mont. 132, 262 Pac. 168, wherein Mr. Justice Matthews pointed out that juvenile delinquency proceed- ings were in no sense criminal pro- ceedings, and that the purpose of the statute is to save children from prose- cution and conviction on charges of crimes committed against the state, and to relieve them from the stigma attaching to conviction; to guard and protect them from themselves and evil minded persons with whom they are in contact, including improper home influences. Under the Act, the court said "such children are not to be treated as criminals. They are not even to be brought into a court room for a hearing. The manner of proceed- ing is by petition which must set forth * * * that it is for the best interest of the child and the state that the child be taken from its parents * * * and that such parents are unfit or improper custodians of the child, or are un- willing or unable to care for, protect, train, educate, control and discipline the child."