In Re Tom

JAMES, J.

Application by petitioner on

habeas corpus

for discharge from custody after plea of guilty and sentence of imprisonment. Petitioner was informed against in the superior court under the provisions of section 288 of the Penal Code, which denounces as a crime the committing of certain lewd and lascivious acts with or upon a child under the age of fourteen years.

The contention made on behalf of petitioner is that the charge should have been heard in and punishment determined by the juvenile department of the superior court, and not by the regular criminal trial department, in which it was heard and considered, for the alleged reason that petitioner at the time of the filing of the information against him was under the age of eighteen years.

The act of the legislature, commonly called the juvenile court law (Stats. 1911, p. 659), provides that whenever it is suggested in a court other than a superior court that a person against whom a crime is charged is under the age of eighteen years, it shall be the duty of the magistrate to certify the ease to the juvenile court for further proceedings. It appears by the petition in this ease that petitioner was first charged in a justice’s court and therein ordered to be held to answer for trial in the usual way. It does not appear that any suggestion'was made, while the charge was pending before the justice of the peace on preliminary examination, that petitioner was under the age of eighteen years; but, on the contrary, it appears that a statement was made by petitioner’s counsel before the justice to the effect that petitioner then was “a boy eighteen years of age.” The justice of the peace was not required, under such a statement, to refer the case to the juvenile court. After being held to answer for trial on the charge mentioned, without making any claim that he was of such an age as to entitle him to consideration under the ju

[680]

venile act, petitioner entered a plea of guilty in the superior court to the information there filed against him. The petition recites that before sentence he filed a written application with the court, asking to be released from custody on a probationary term, in which application he. stated that at the time the information was filed he was of the age of seventeen years. The petition further recites that the court then referred the matter to a probationary officer and continued the hearing thereon from time to time until finally sentence was pronounced that petitioner be imprisoned in the state prison for a period of two years.