176 Ky. 339
Court of Appeals of Kentucky.
JOHNSON v. COMMONWEALTH.
June 15, 1917.
ACTION: Affirmed.


Appeal from Circuit Court, Bell County.
Pearl Johnson was convicted, and appeals.

The circuit court on motion questioning its jurisdiction, on the ground that defendant was a juvenile delinquent, held properly to accept the mother's oral testimony showing she was over 18, rather than general affidavits to the contrary.
John Howard, of Middlesboro, for appellant.
M. M. Logan, Atty. Gen., and D. O. Myatt, Asst. Atty. Gen., for the Commonwealth.

SETTLE, C. J.
The appellant, Pearl Johnson, and one John Moseley were jointly indicted in the Bell circuit court for the murder of Floyd Dunaway, the homicide occurring on the 21st day of October, 1916. The appellant was given a separate trial, which resulted in the return of a verdict by the jury finding her guilty of murder and fixing her punishment at confinement in the penitentiary for life. She was refused a new trial, and has appealed.

The only ground urged for the reversal of the judgment asked is that the Bell circuit court did not have jurisdiction of her person or to try her under the indictment charging her with the murder of Floyd Dunaway, because she was, as claimed, under 18 years of age at the time of the trial, and by reason thereof entitled to have the indictment against her tried or otherwise disposed of in the county court of Bell county. The question of want of jurisdiction was raised in the circuit court by a written motion, filed and entered by her, to transfer the case to the Bell county court, which motion was supported by the affidavits of appellant, and those of her codefendant, John Moseley, and her mother, Beckie Johnson. Each of these affidavits, without giving the date of appellant's birth, merely stated that "the said Pearl Johnson is under the age of eighteen (18) years, and will not be eighteen (18) until the 14th day of May, 1917." The court being dissatisfied with the evidence furnished by the affidavits and desiring to inquire more particularly into the matter, caused appellant's mother, Rebecca Johnson, to be subpoenaed and brought before it to orally testify as to appellant's age, and we here give so much of her testimony as bears upon that question: "Q. When was Gillis Johnson killed?
A. On the 24th day of December, 1900.
Q. He was this girl's father?
A. Yes, sir.
Q. How old was this girl at the time her father was killed?
A. She was between 2 and 3 years old.
Q. What was her birthday?
A. The 14th day of May.
Q. And he was killed the 24th day of December?
A. Yes.
Q. So if she was between 2 and 3 years old she lacked from December 24th until May 14th of then being 3 years old?
A. Yes, her birthday was the 14th of May.
By the Court: She would have been 3 years old in May after her father was killed?
A. Yes, sir; that is the way I have got her age. I have got no record of it. I just kept it in my mind."

After receiving the testimony of the mother, the court overruled appellant's motion to transfer the case to the juvenile court, to which appellant by counsel excepted. This ruling was not error, for it is patent from the testimony of appellant's mother that the statement contained in her affidavit, and those of John Moseley and appellant, that the latter was under 18 years of age and would not be 18 years of age until May 14, 1917, was inaccurate. Of course, appellant had no personal knowledge of her age, nor does the affidavit of John Moseley indicate that he knew the time of her birth, or that he was in the possession of any data by which to ascertain her age; and while appellant's mother had kept no record of her birth, she did know the date of her husband's (appellant's father) death, as its occurrence on the day before Christmas, and the facts that he did not die a natural death, but was killed, and left to her care their helpless child, then between 2 and 3 years of age, were events that naturally made and left a lasting impression upon her mind. Consequently, the circuit court in rejecting the evidence furnished by the affidavits and accepting that of the mother as the truth of the matter correctly ruled upon the question raised by the appellant's motion. If, as testified by the mother, appellant's father was killed December 24, 1900, and appellant was then between 2 and 3 years of age, and the third anniversary of her birth did not arrive until May 14, 1901, it necessarily follows that she was born on the 14th day of May, 1898, and that she became 18 years of age May 14, 1916. As the mother's testimony with reference to her age was given on the 27th of November, 1916, immediately before the beginning of appellant's trial, the latter was at that time 18 years, 6 months, and 14 days old; consequently, she was not within the age that would have given the county court exclusive jurisdiction of the prosecution against her for the charge contained in the indictment. In fact, appellant was more than 18 years of age when the homicide, for which she was indicted, occurred, which was October 21, 1916.

In Talbott v. Commonwealth, 166 Ky. 659, 179 S. W. 621, this court held that under section 331-e, Kentucky Statutes, the county courts have exclusive jurisdiction of the disposition that shall be made of a male child under 17 years of age and a female child under 18 years of age, charged with or arrested for a violation of the laws of the state. Furthermore, that the circuit courts have no jurisdiction to indict or try such juvenile offenders for a violation of the laws of the state, unless they have been transferred to the circuit court by order of the county court. This case adheres to the construction previously given the statute, supra, in Commonwealth v. Yungblut, 159 Ky. 87, 166 S. W. 808, and Commonwealth v. Franks, 164 Ky. 239, 175 S. W. 349, in the first of which it was held that it is the purpose of the statute in question to give county courts exclusive, initial jurisdiction over juvenile offenders; and in the second declared:
"As the law now stands, it lies exclusively with the county court to determine whether a juvenile offender shall be treated as a delinquent child, or prosecuted as a felon. The circuit court has no voice in the determination of that question."

In the latter case it was also held that the circuit court erred in transferring the case of the juvenile to the county court, and that instead of so doing it should have dismissed the proceedings. This conclusion was rested upon the ground that although under the provisions of the statute in question the county court is given authority to dismiss the proceedings against the infant in that court and transfer the case to the court having jurisdiction of the offense with which it is charged, there is no provision therein authorizing a transfer of the case from a circuit court to the county court. The circuit court can only dismiss the proceedings.

In the case before us, however, the circuit court, as previously stated, properly overruled the appellant's motion to transfer the case to the county court, because the evidence conclusively showed that she was over 18 years of age, and therefore not a juvenile within the meaning of the statute. But if the proof had been otherwise, that is, if it had shown that appellant was a juvenile in the meaning of the statute, which would have given the county court jurisdiction of her person and the offense with which she was charged, under the authority of Commonwealth v. Franks, supra, the circui, court would have been without power to transfer the case to the county court. It could only have dismissed the prosecution against her.

In view of the conclusion we have expressed, it is unnecessary to recite or discuss the evidence upon which the jury, by the verdict returned, found the appellant guilty of murder, except to say that it demonstrated her guilt beyond a reasonable doubt. No evidence was introduced in her behalf. Indeed, her guilt was established by her own confession made shortly after the commission of the crime, that she, without warning to the deceased, fired the shot that deprived him of his life. The confession, however, was coupled with a statement, which the employer of the deceased fully corroborated, that she shot and killed the deceased because of a brutal beating she received at his hands six hours before the killing. Whatever may have been the relations between deceased and appellant or the misconduct of the latter, her sex and helplessness should have protected her from his brutality. In view of this treatment of her by the deceased, we can but express our regret that the jury were unable to conclude that the evidence authorized them to find her guilty of voluntary manslaughter, instead of murder. But as under the code letter of the law the verdict was authorized by the evidence, we cannot disturb it.

As the jury were properly advised by the instructions of the law of the case, and the record manifests no error authorizing the reversal asked, the judgment must be and is affirmed.

Ky.App. 1917.
JOHNSON v. COMMONWEALTH.
195 S.W. 818, 176 Ky. 339

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