
    (78 Misc. Rep. 514.)
    PEOPLE v GARDNER.
    (Essex County Court.
    December, 1912.)
    Criminal Law (§ 968)—Motion in Abbest—Defendant undeb- Sixteen Years of Age—Indictment.
    Where defendant, under 16 years of age, indicted for burglary in the third degree and grand larceny, pleaded guilty to the burglary charge, and on suspension of sentence was placed in charge of the probation officer for 3 years, a motion in arrest, under Code Cr. Proc. § 467, made the following day, on the ground that the grand jury had, under Laws 1905, cc. 655, 656, no jurisdiction to find an indictment because of defendant’s age, must be granted; no claim being made that a certificate of a judge, under said Code, § 57, that it is proper that the charge should be prosecuted by indictment, had been filed.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2423-2432, 2435-2444; Dec. Dig. § 968.*]
    Fred Gardner was convicted of burglary, and moves in arrest of judgment.
    Motion granted.
    Patrick J. Finn, Dist. Atty., of Ticonderoga, for the People.
    ■Maurice B. Dean, of New York City, for defendant.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   PYRKE, J.

The defendant was indicted by the grand jury of this county for the crime of burglary in the third degree and of grand larceny in the second degree. To this charge he pleaded not guilty. Subsequently, and on the first dayoof the November, 1912, term of the County Court, he was allowed to withdraw his plea of not guilty, and to enter in its stead a plea of guilty to the charge of burglary in the third degree. Thereupon sentence was suspended, and he was placed on probation in the charge of the probation officer of the county for the period of three years. On the following day Mr. Dean, who had previously been retained in his behalf, but who was not present in court on the preceding day, appeared and made a motion in arrest of judgment pursuant to section 467 of the Code of Criminal Procedure.

The motion was seasonably made, judgment not having been rendered. Upon this motion but two questions can be considered, namely : Did the court have jurisdiction over the subject of the indictment? and do the facts stated constitute a crime? My conclusion on the first question makes it unnecessary to consider the second one.

The motion must be granted, for the reason that the grand jury did not have jurisdiction to find the indictment, because the defendant was under the age of 16 years, being, now, according to his appearanee and by his own statement, of the age of about 13 years. Section 2186 of the Penal Law (Consol. Laws, c. 40) provides that:

“A child of more than, seven and less than sixteen years of age who shall commit any act or omission, which, if committed by an adult, would be a crime not punishable by death or life imprisonment, shall not be deemed guilty of any crime, but of juvenile delinquency only. * * * ”

Section 56 of the Code of Criminal Procedure in the enumeration of offenses, of which in the first instance Courts of Special Sessions have exclusive jurisdiction to hear and determine, includes “offenses of children, under section twenty-one hundred and eighty-six of the Penal Law.” Subdivision 27. There is no claim here that any certificate pursuant to section 57 of the Code of Criminal Procedure has been filed. This offense, therefore, should have been heard and determined by a Court of Special Sessions, and the defendant should not have been indicted by the grand jury, and his pl.ea of guilty should not have been accepted by this court. People v. Knatt, 156 N. Y. 302, 50 N. E. 835; People v. Vert, 134 App. Div. 790, 119 N. Y. Supp. 859.

■ The history of the legislation differentiating in the grade and punishment óf offenses committed by persons under 16 years of age and those committed by persons over that age leaves no doubt of the legislative intent that children of tender years should not be prosecuted by indictment, except for offenses of the gravest character. The first legislative enactment that has come to my attention modifying the seriousness of an offense by reason of the age of the offender is chapter 726 of the Laws of 1894, amending section 699 of the- Penal Code, which is the predecessor section of section 2186 of the Penal Law. By that amendment it is provided:

“Whenever a child under the age of fourteen years is charged with the perpetration of a crime, other than a capital crime, which, if committed by an adult, would be a felony, the child shall, in the discretion of the court, be tried as for a misdemeanor, and the court, magistrate or tribunal before whom such trial is held, shall impose the penalty as prescribed by law in the case of misdemeanors.”

Under this amendment a child under 14 years' of age, indicted for a felony other than a capital crime, could in the discretion of the court be tried as for a misdemeanor, in which event, upon conviction, the- penalty prescribed for misdemeanors would apply. This section was further amended by chapter 103 of the Laws of 1902, raising the age limit to 16 years. Under both these amendments it was undoubtedly the legislative intent that crimes committed by children should be prosecuted by indictment, the same as those committed by adults.

In 1905, by chapter 655, the section was again amended, reducing the grade of this character of offenses when committed by children under 16 years of age to a misdemeanor, automatically and not by discretion. That amendment provides:

“The commission by a child under the age of sixteen years, of a crime, not capital or punishable by life imprisonment, which if committed by an adult would be a felony, renders such child guilty of a misdemeanor only. * * * "

By chapter 656 of the Laws of 1905, becoming a law at the same "time and evidently a companion piece of legislation, section 56 of the Code of Criminal Procedure, defining the offenses to be heard and determined exclusively by Courts of Special Sessions, was amended by adding to its twenty-seventh subdivision the words, “or offenses of ■children under section 699 of the Penal Code.” It was plainly the intent of the Legislature, in reducing the grade of these juvenile offenses to that of misdemeanor, to make them cognizable exclusively' by Courts of Special Sessions.

In 1909, by chapter 478, the Legislature again changed the phrasing •of section 699. by making it read exactly as the present section 2186 •of the Penal Law now reads. The sole purpose, apparently, of this amendment, was still further to modify the character of the offense by ceasing to classify it as a crime and denominating it a “juvenile • delinquency.” A survey of this legislation shows a progressive tendency on the part of the Legislature to deal gently with the miscon- • duct of children of tender age; and there can be no doubt that since the legislation of 1905 it has been the legislative intent that no child .should be the object of indictment, except when charged with an offense punishable by death or life imprisonment.

The motion in arrest of judgment should therefore be granted. .And it appearing that the defendant cannot be convicted of any crime in this court, and that no new indictment can be framed against him, •the money deposited instead of bail should be .refunded.

Ordered accordingly.  