
    Commonwealth v. Harris, Appellant.
    Submitted June 12, 1972.
    Before Weight, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ.
    
      Jack M. Myers and Zack and Myers, for appellant.
    
      Steven H. Goldblati 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.
    November 16, 1972:
   Opinion by

Packel, J.,

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 hut he told the court he was 19. He asks for post-conviction relief on the ground that the criminal court had no jurisdiction.

If the statute made non-age a jurisdictional matter, the conviction might well he improper notwithstanding appellant’s false testimony. However, the statute here does not deprive the court of jurisdiction hut imposes a duty to transfer only if non-age was ascertained during the pendency of the criminal charge.

Order affirmed. 
      
       Act of June 2, 1933, P. L. 1433, §14 as amended, 11 P.S. §256.
     
      
       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.
     