*1 PLAINTIFF-RESPONDENT, JERSEY, STATE OF NEW MONAHAN, MONAHAN, DEFENDANT, AND MICHAEL EUGENE NDANT-APPELLANT. DEFE Argued December March 1953 Decided *2 Mr. Ira D. Dorian the cause. for the argued appellant Hueston, Thomas F. (Mr. attorney). Morss, Jr.,
Mr. E. Russell Prosecutor of County Union County, argued cause for the respondent.
The of the opinion court was delivered by by mid-Twentieth Prompted socio- Century J. Jacobs, our logical precepts, has directed Legislature that children under 16 who commit any offenses which would be criminal if adults, committed shall by not be triable in criminal pro- but shall be ceedings dealt with our exclusively by specialized juvenile courts. The issue presented us legal is whether this clear statutory mandate may judicially' disregarded to enable first murder trial degree County Court 15-year-old boy who with participated his robbery father which his father during killed two persons. 1953 Monahan and April, his son Eugene 15-year-old indicted
Michael were for the murder of William Diskin and Sebastian Weilandics. Monahan has Eugene tried, been convicted and sentenced death and his appeal is pending before this court. State concedes that the victims were killed the father and the son but asserts 'that since the homicides occurred during robbery which the son son was triable for- participated, equally murder in the death first unless there is degree, punishable recom life :113-1; mendation of See N. 2A imprisonment. J. S. N. J. 2A :113-2. A motion was made for transfer S. the son to the Juvenile and
proceeding against Domestic Court on the that under J. Relations N. 2A :85-4 ground it and N. J. S. 2A:L-14 in that cognizable exclusively The motion was denied court. was taken. appeal 36 2:2-4; R. R. R. R. R. 2:2-3(a) (3); 1:10-1 R. (b); Cf. 2:12; several R. (6) Although prelim
R. R. R. 5(b) (a). 3:5— State, we raised matters have been inary procedural the determination shall them pass proceed concern, has It of public meritorious issue presented. its determina fully expeditious briefed been argued, See complete justice. tion is the interests of required v. 203, 13 N. 209 Newark Tune, City v. J. (1953); Pulverman, 105, v. Koppers J. Hendrikson 12 N. (1953); ., Inc., N. (1953). Co the criminal of removing mitigating principle early In the children has ancient responsibility origins. Aaron, N. J. L. case of State [Reprint 277] restated Kirkpatrick Ct. Chief Justice (Sup. doctrine, earlier Roman *3 law from adapted settled common have under “cannot discretion law, that since child seven he is of com incapable discern and evil” good between he is sub seven and 14 crime; ages between mitting and after rebuttable presumption incapacity; ject Marshall, A & Clark he is See presumptively capable. 14 125-128. ed. 1952), pp. on the Law Crimes Treatise (5th law criminal convic the common rule precluded Although offenders, there are which instances many young tions so, with Blackstone consequences. to do shocking failed were dras children of tender very age cases in which cites criminals; he to the refers hang condemned as adult tically barns; some maliciously an old for burning eight-year ing killed one his of a who had ten-year-old hanging of 13 had and to the who burning girl companions; ed. 23. Simi 1800), her mistress. 4 Bl. Comm. (13th killed in our State are 1818 lacking. illustrations own lar Aaron, for murder v. (State supra), of 11 was tried boy which he of 13 was for an offense boy in 1828 a hanged Guild, 10 N. L. 163 he 12. State v. when was committed Century, the Nineteenth Ct. most of 1828). During (Sup. alike inter although offenders were treated and adult child their confinement. separate were taken towards mittent stens modern
century that con- 37 eepts really form; to take began embodied the they upward movement in the child’s of criminal responsibility, extended recognition society’s obligation parens patriae to care for delinquent children, and the independ- creation of ent Elliott, juvenile courts. See Penal Theories Conflicting Sussman, Criminal Statutory ; Law 32 Juvenile (1931) 12 Delinquency Treatment in Proba- (1950); Young, Social tion and Delinquency ed. (2d 1952),
The first juvenile court in this country established Cook Illinois, County, 1899 which act provided the child offender was to be considered ward of state under court; control of the juvenile were there proceedings to be conducted informally with rehabilitative supervision rather than mind, retributive punishment without indictment, public trial crimi- by jury other incidents of nal causes. Thereafter the other states adopted legislation which was comparable varied. though specific provisions on indictment, Attacks based on legislation absence trial the other jury constitutional guarantees ap- to criminal plicable rejected. were See proceedings quickly Fisher, 48, Commonwealth v. 213 Pa. 62 198A. Ct. (Sup. Lindsay 328, 892, v. 257 Ill. 100 N. E. 908 1905); Lindsay, 1913); A., S., Lewis, 45 N. L. R. Ct. 260 (Sup. People 171, 353, N. Y. 183 N. E. 86 A. L. R. 1001 (Ct. App. denied, 786,
certiorari 289 53 77 L. U. S. S. Ct. Ed. Morin, Petition 95 N. H. A. 2d (1933); Mack, 1949). Court, Ct. (Sup. The Juvenile Cf. L. Harv. Rev. In the Fisher case Pa. (1909). [213 *4 48, 62 A. the Court of Supreme Pennsylvania pointed 200] out that the juvenile court is not “the trial of a proceeding child with a charged crime, but is save it mercifully to from ordeal, such the wake, in its prison penitentiary if the own and the best child’s interests of the state good 328, such salvation.” In the case Ill. justify Lindsay [257 100 E.N. Court of Illinois noted that Supreme 894] state, of its out “prerogative arising power infants, as the interest duty, parens patriae, to has protect been exercised courts of and has always chancery” not
38 In the Lewis generations. been for case questioned [269 171, E. the New of Appeal's N. N. York Court Y. 183 354] no of the legis stated that there is doubt about power shall not be a that an done child say lature act “to 518, 68 case N. And in the Morin H. crime.” recent [95 in re Supreme Hampshire, A. 2d Court of New 670] chil on its statute to delinquent an attack jecting relating dren, said: question, designed plain sufficiently act think “We patriae,’ powers ‘parens permit of the state exercise rehabilitating punishing purpose children, and not of minor
for the
generally
a crime.
‘It
held
them
the commission of
penal,
protective.
purpose
It
is not
such
but
statutes
regulation,
punished
a law or
for breach of
shall be
child
worthy citizen.’
become a
that he shall have
better
chance to
also,
382, 384,
185,
Lefebvre,
N.
A. 2d
187. See
State v.
91
H.
20
H.
30,
1912A,
Burt,
64, 66,
A.
Ann. Cas.
232.
v.
75 N.
71
universally upheld
objections
been
over
based
Similar
statutes have
70,
Cinque
Boyd,
upon
grounds.
v.
99 Conn.
121 A.
constitutional
678;
Lewis,
171,
353,
People
A. L.
v.
183
E.
86
R.
N.
N.
260
786,
1464;
1001,
709,
Ed.
S.
S. Ct.
77 L.
certiorari denied 289 U.
53
Exparte
92;
Fisher,
198,
48,
A.
Ann.
Pa.
62
5
Cas.
Commonwealth v.
213
Lindsay
Lindsay,
C.,
szewski,
123;
F.
v.
257 Ill.
u
C.
196
Jan
908,
1914A, 1222;
892,
A.,
328,
NJ.
Ann. Cas.
N. E.
45 L. R.
100
Wissenburg
Bradley,
813,
205,
v.
A. L. R.
Iowa
229 N. W.
67
1075;
224,
Gomez,
Thomas
re
A. 2d
also
In
138. See
Vt.
905, 907;
States,
App.
167,
annota
v.
D. C.
121 F. 2d
United
1342;
L.
tions 60 A. L.
67 A.
R. 1082.”
R.
99 Conn.
Boyd,
See
Cinque
also
case
oft-quoted
where the court sustained
During in identical and adult dealt with offenders our State child in New Jersey, the Child Report See Justice and fashion. Commission, 35 Delinquency Neto Juvenile Jersey
39 In 1850 (1939). were first legislative steps taken towards the separate confinement 1850, 125; of children (L.' L. p.
p. 476), it was until 1867 although that the State Reform for School Juvenile at Delinquents opened.’ was Jamesburg Shortly^thereafter State Industrial for at School Girls Trenton was established. there was Finally recog- legislative nition that children do not have that intellectual degree and emotional development which them subject should adult responsibility and that child adult should offenders therefore be differentiated before trial rather than after con- In offenders, viction. 1903 county courts for con- juvenile Pleas, of the sisting judges Courts of were Common created. L. c. 219. In 1912 courts manned special juvenile court set were counties. L. judges up first class 1912, c. 353. In 1928 the Juvenile and Probation Study Commission, headed by Vice-Chancellor recom- Bentley, mended the of new adoption on the legislation based Standard Juvenile Court Act which had been National prepared Probation Association aby committee of from various judges states; thereto a pursuant revision comprehensive statutory in 1929 adopted and domestic rela- juvenile establishing tions their courts jurisdiction over children defining 157; under years. 16 L. c. R. 8. 9:18-1 et seq. 1903 and 1912 acts had excluded the Although expressly crimes of murder and juvenile juris- from court manslaughter diction, 1929 revision contained no comparable exclusion. Ratner, In re N. J. Rq. (Ch. Daniecki & affirmed N. J. A. 1935), Eq. (E Vice- Chancellor had Backes occasion deal with the issue of murder, whether 15-year-old boy, was triable charged the same manner as an adult the Court of Oyer was, Terminer. The vice-chancellor held he expressing view that had no Legislature power “to sweeping vest court to the crime of jurisdiction juvenile. try any murder other indictable without a (or offense) jury.” did not consider many He cases to contrary the states and if his had view ultimately prevailed throughout have struck it would a mortal blow to court *6 rejected movement in our it was later State Fortunately, in 1940), v. 124 N. J. 272 Ct. State L. Goldberg, (Sup. court, & affirmed 125 N. J. 501 A. where (E. L. indict while to kill that assault with intent was recognizing 235, J. Maier, able at' common v. N. law (cf. it held committed that, by 15-year-old, when (1953)), In the in court. cognizable exclusively juvenile of course his of Case noted opinion goal Justice and to children their selves own better saving “erring criticism” orderly, society, beyond law-abiding of way court are not juvenile “by punishment proceedings care, reformation, education and way parental by wrongful intended to save children from the consequences indictment, in merit conduct which an older would person in the nature of ascer conviction and punishment, has what the a child under sixteen years conduct of taining author been whether restraint and care from public which ities be substituted for that should larger degree In the receive its parents.” child would from ordinarily Lewis, 217, In re 11 N. Justice (1953), recent case of court, in an delivered for the entire simi Brennan, opinion for the treatment larly out “that the statutory policy pointed is directed their rehabilitation juvenile offenders reformation education and citizenship useful through even their when offense punishment, underlying is of a kind which adjudication juvenile delinquency indictment, would merit when an older person committed and punishment.” conviction had rendered his after Backes
Immediately Yiee-Chancellor case, the 15-year-old in the Danieclci holding decision for murder in same manner him was triable boy before took affirmative to obviate adult, steps as an the Legislature 285, that under 1935, It in L. c. a person its effects. provided 16 shall be deemed incapable committing age State; law or law this statute crime under common c. delinquency defining cognizable and in L. court, which, it conduct included juvenile exclusively over, 16 or would constitute a if committed one by any misdemeanor, or other offense. misdemeanor felony, high was unmistakable in statutory design; ap language clear wishes expressed embodied the propriately legislative statements Senator Wolber (later Judge), following 330 and 331 which later was the introducer of S. who 284, 285 Miss ions L. National (Board cc. became Neeld, the United States N. J. Presbyterian Church in 349, 358 : (1953)) purpose jurisdiction “The bills is to the two vest exclusive who, and domestic relations courts over all children while years, under sixteen commit offense which would con- *7 crime stitute under the law as it now stands. Jersey Chancery A recent decision of the New Court of declares existing having provisions purpose, the the same unconstitutional they deprive right because defendant the of the to indictment jury objection by providing trial. bills eliminate the These the juvenile delinquency penalties not constitute does for imposed. crime cannot be purpose already expressed policy is to effectuate the social juvenile confining in the and domestic relations court law of juvenile handling delinquents specialists in the field. bills These merely possible existing act, pointed correct technical defect in the Chancery This act decision. was drawn the New Jersey pursuant adopted by Crime Commission to a resolution Jersey New State on Conference Crime.”
In Mei, In re 122 N. J. 125 & A. Eq. (E. ques was tion raised to whether again was 15-year-old triable for murder in adult; the same manner as an the court held he was terms of L. notwithstanding express cc. 285. It did not that the intended suggest Legislature enactments; exclude murder from its comprehensive nor it did adopt sweeping view of uneonstitutionality ex in the case and Daniechi later pressed rejected Cold- Instead, case. rested berg it on the unprecedented ground since the murder “so horrible fact and in charge it “a contemplation society” must remain crime within Constitution, name purview whatever and what ever treatment may appended be to it by Legislature.” This would be to cases ground equally applicable involving children tender the records at State very age, Prison County disclose that as late as 1944 it was Camden applied tried, to a 131who was convicted sentenced youngster' he when to life for a murder' committed1 imprisonment L. 149 Ct. 12. See also 137 N. J. Smigelski, (Sup. dismissed, strictly 1 N. J. 31 Viewed 1948), appeal (1948). since as a it has no whatever supporting basis legal ground murder and the mention of Constitution makes no pertinent murder and other indict when guarantees, applicable, govern strictly with like Viewed able common law offenses force. not be may given as an it concededly emotional ground effect. any controlling half the states the approximately jurisdiction of the exclusive, court over children under 16 is even where if offense would constitute murder committed adult. by an Juvenile
See Annals Delinquency, (1949); United Nations on Comparative Survey Juvenile Delinquency Juvenile (1952). Court Act as revised standard jurisdiction likewisfvests exclusive in the juvenile court all over children under It also provides juris- from diction over children 16 to 18 but states that if the child is 16 or over and is “with an offense which charged would be a if committed an adult” felony the juvenile discretion, court in its may, certify child for criminal doubts, To remove directs that proceedings. expressly “no child under sixteen shall so certified.” *8 such opinions legislation Judicial now sustaining legion its Mei decision stands alone in notion that a child over, murder, of seven or must be tried in the charged same manner as an adult of what the regardless Legislature on the says subject. decision is devoid of Although reason and authority, is advanced supporting suggestion it was rendered many years ago since should be per- mitted to stand until altered This Legislature. ap- some merit if the Mei have decision turned proach might on construction, matter of the fact is that statutory absence of n constitutional there an court asserted which power State, no amount of could See legislation supply. Snyder 167, 55 485, 1947). 189 Md. A. 2d Ct. In (Sup. any event, the enactments after the Mei case pertinent legislative reaffirm clearly to vest in plain purpose statutory court, juvenile exclusive over children under 16 jurisdiction 1943, of the their L. c. regardless offenses. See severity 97; 1946, 77; 1948, L. c. L. c. 284. 1946 the Legis- lature, with juvenile jurisdiction court over dealing 18, persons between the of 16 and stated ages expressly the juvenile court refer the matter to the may prosecutor criminal where the was of “heinous nature.” offense trial 1946, 77; L. Vaszorich, c. N. J. 2A :4-15. S. See State v.
N. J. was ever No (1953). comparable provision adopted with to children under thus respect evidencing the exclusive legislative purpose jurisdiction preserving of the court in such instances. R. R. 6:9-7. juvenile See When our statutes were justice to civil relating revised, the recently re-enacted its Legislature comprehensive declarations that a 16 shall deemed under be person 2A a crime J. S. incapable (N. committing :85-4) juvenile which, shall include act if delinquency any adult, committed an mis- would constitute felony, high demeanor, 2A misdemeanor or other offense. N. S. :4-14. And at time the same it reasserted broad powers court, for extended institutional juvenile authority including instances. N. J. commitment of offenders appropriate Lewis, 2A :4—37. In Re this was invoked supra, authority had of a who reformatory juvenile to sustain commitment a pedestrian. driven an automobile wantonly killing Until recently policy in our legislative neighboring state of New York was to exclude crimes such designated murder the jurisdiction from of the juvenile court. Thus Lew, its statute Consol. Laws Y.N. c. Penal [McK. § had that where 2186], provided a child under 16 committed an offense which would “a be crime not death punishable by or life if adult, committed imprisonment” he was not deemed but was to be dealt with guilty as a offender. the express exclu- Notwithstanding the New York Court of sionary language, held that Appeals under 16 who was not with person charged, premeditated *9 44 in a which resulted
murder, but with robbery participating offender. See treated as in a was to be killing, E. 88 (1932), Y. 181 v. 259 N. N. People Roper, 635, 182 N. E. denied, (1932); N. Y. reargument As Porter, 1945). Ct. 54 N. Y. 2d (Cty. People be con an adult case, may in the Porter expressed “although occurs killing murder proof victed of first on degree 15-year- he is which engaged, in the course of a felony upon is there proof unless so youth may adjudged, old not be was accused the child In Mei case he intended to kill.” case murder. committed premeditated having accused of is not Monahan us the Michael 15-year-old before in act with murder or committed having premeditated in a kill; participated with having tent he is charged two killed his father which with his father robbery during sustained and policy statutory provisions Under the persons. case Goldberg Errors and Appeals the Court of he com which robbery as an adult for he is not triable as an adult triable that he is mitted, contends yet the statute If, as did not commit. which he for killing it is robbery, incapable directs, he to be deemed legally murder during tried for he difficult to see how can in the course of which another killed. robbery are admit- The offenders by juvenile problems presented in- in nature and are most serious tedly rightly receiving and administrative at study by tensive legislative agencies and des- federal and state levels. Our national hopes both and, children are born fortunately, they rest with our tinies free and If their good. way both with promise along realized, their it- is lost and society freedom goodness Hoover, John Juve- Edgar self to blame. See may be largely : L. Rev. Syracuse (1953) nile Delinquency, learned behavior. child and the adoles- “Criminal behavior impressionable, develop their active minds codes of cent are they exposed. morality higher than those to which no community growing provides its chil- environment which the adult important underlying patterns factor the behavior dren is the most normal child.” cultivated *10 lies not in pathway indicate history Centuries in persistently and but unrelenting punishment, vengeful the causes of and juvenile and uprooting delinquency seeking and process reformative widening strengthening movements. A. I. through socially enlightened Draft, L. Cf. Act, Youth Authority Correction (1940). Amongst § states, New Jersey has been the forefront in its long and this that it intends recognition development pathway; its to retain is well position evidenced recent at activities the New Jersey Center Diagnostic Highfields Experimental Treatment Project. Henry, See Right Good, 1; Reporter 1953), (Dec. p. Welfare Life Magazine, Bad A Helping Boys, Plan New Pays Jer- of for sey (March pp. 24, remain,
There nevertheless, strongly conflicting opin ions as to how juveniles should be dealt with in cases involv ing homicide and other heinous misconduct. Some simply content themselves with which expressions their couple nat ural outrage lack of sympathy juvenile court movement; fail to they any alternative suggest except, per haps, the return to the barbarous when and ten- days eight- year-old boys 13-year-old were tried and girl executed for arson and murder. Others take the view that although the juvenile court movement is soundly based and should be it should nevertheless strengthened, be confined to non-heinous at offenses, least when older children are concerned; in other words, errant children should receive supervision and correc tion only so as have long they not erred too greatly. Still others, however, both the urge strengthening widening movement, court out that the pointing gross ness of the child’s misconduct intensifies rather than lessens need for corrective under the supervision jurisdiction of specialist empowered judge, protect both the fully child interests of the and the public event, at In any large. determination as what is the wise and acceptable ap from society’s clearly proach viewpoint rests the other Matters branches government. statutory policy are branches and executive the exclusive of the legislative concern ;,the at acting which the electorate accountable to are.fully be nulli- may enactments statutory properly polls; the judicial;branch fied in in part simply whole or because ever remind out- them It is well that we thinks unwise. democracy legislative selves that in our the executive are the “ultimate guardians branches of government quite great liberties and of the people degree welfare Kansas, Missouri, & Holmes, J., as the courts.” Texas *11 638, 267, 270,24 Ct. Ry. May, Co. Texas 194 U. S. of 48 L. Ed. 973 (1904). present court satisfied that our A is majority in vests exclusive the lawfully jurisdiction legislation mis under including court over misconduct children by murder or other heinous which would constitute conduct an if committed adult. order Accordingly, and is remanded to the entered is set' aside the matter below Relations Court of Union County Juvenile and Domestic in accordance with the stat governing further proceedings utes rules and of court. and in clear Legislature (concurring).
Heher, of no of has admitting purpose indubitable terms doubt policy, a and measure of social decreed, as prime compelling of 16 shall deemed incapable that child under the be a age crimi and all offenses crime, any entailing of committing nal under the common law or the statute law consequences adult, an of irrespective when of this State perpetrated misconduct, whether a or other capital of the' gravity comprised the lesser evil deeds offense or of heinous crime, such but rather that misconduct within the category when done “juvenile delinquency” shall treated as be to protective under 16 offender years subjecting child treatment; I, too, and and correctional custody, guidance within the an ordinance is entertain the view such legis not if it is fact and reality lative competency and measure under new euphemistic and criminal punitive the 'constitutional safe- disregards procedure label' and ' guards, action against arbitrary in restraint of individual more liberty, especially presentment process right of trial by jury.
The question is one of basically constitutional power statutory construction, to be considered the context of criminal and its essential responsibility nature.
A child is criminally responsible at common law for his acts or he omissions-if is of tender such years as incapable between distinguishing right wrong, the nature ’understanding act. At com- particular mon law under (1) seven age years the.presumption conclusive; is between the .incapacity of seven (2) ages and 14 is years there a rebuttable presumption incapacity; above the (3) there is a rebuttable pre- sumption capacity.
With some
a child is
for his
exceptions,
accountable
torts
in a civil action
adult,
to the same
for the
degree
is
object
to redress
personal injury by
compensation,
punish
child,
and so his mental
is
capacity
gen-
not.
immaterial. But when
hold
erally
a child
proposed
law,
amenable to
mens rea
essence.
law,
At
common
a crime
a combination of a criminal act
*12
reum,
a criminal intent. The maxim
and
is actus non\facit
nisi mens sit
A
and a
rea.
act
wrongful
wrongful
intent
Q.
Tolson,
must concur.
v.
criminal Pollard responsibility. of Law, II, 476 English (1895). law, responsi is not criminally the common child Under be he and enough, enough, ble “unless is old intelligent intent; and to be capable a criminal capable entertaining of he of criminal intent must be capable of entertaining and as to the wrong particular between right distinguishing Marshall, sections Crimes ed. (5th act.” Clark and Kean, Chil 38, 76; Liability The the Criminal History dren, Physical Quar. Woodbridge, Law Rev. 364 (1937); 53 Law, 87 U. Pa. Law the Criminal Infancy Mental Rev. 426 (1939). are, by arbitrary
Children under of seven age be doli law, conclusively rule presumed common intent, incapax, incapable entertaining in fact. capacity no evidence at all can received to show offenses. statutory This to both common-law and applies rule 260 14 Smith, Loader, Cox Marsh v. v. 1 C. C. Reg. (1845); Townsend, 3 Hill 535 v. (1863); People C. s.) B. (n. 10 Mead, 479 Commonwealth v. 1842); Ct. (N. Y.) (Sup. 92 Jud. Ct. 1865). Allen Mass. 398 (Sup. children between as to incapacity such presumption conclusive, in cases of of seven and 14 is not
the ages seven, under the but rebuttable age par children to distin intelligence ticular case sufficient showing the nature understand wrong, between right guish or, act, said, as it is sometimes particular illegality “a 1 he was of mischievous discretion.” Hale possessed 4 Blackstone’s Comm. (1778); P. C. (1800). in this capacity latter age group upon burden of proving state; beyond must be shown reason and capacity Smith, Aaron, 4 supra; cited State v. Reg. able doubt. 1818); Ct. Blackstone’s Comm. 24 N. L. (Sup. (1800). to be over the doli presumed capax,
Children *13 rebuttable, is responsible, presumption therefore and the accused to that he satisfy jury with the burden on to understand thé intelligence have sufficient nature did not and consequences act, of his and he to know that was doing Marshall, Clark and wrong. Crimes ed. sec- (5th 77, 78, tions
But in historical find, we the treatment perspective evidences of delinquents, justice, expia- unreasoning tive retributive, and a in utter justice, vengeful disregard fact of physical capacity promptings a humane and understanding sound psychology sociology handling behavior-problem children. In York's Case, Fost. L. 70 who, C. a ten (1791), boy of after years, killing little playmate, concealed the was body, convicted murder, executed; it was considered that circum- stances showed a consciousness of and a guilt, knowledge right case, wrong. another a child English of eight 25, convicted of arson. on 1 Hale P. C. Emlyn note. In 1819 these sentences were pronounced by Eng- lish judges: 14-year-old on who stole a cotton boy gown, value two “Seven shillings, on a 13- transportation;” hat, for year-old girl stealing imprisoned “To six months”; on two accused of boys, about stealing 17 shilling, “Guilty-Death.” Thurston’s Concerning Juvenile And in our Delinquency, (1942). boy own State of 13 was convicted and for a when he was 12. hanged killing Guild, State v. N. L. 163 1828). Ct. (Sup. law,
In criminal “intent” a state mind signifies “which choice, consents to act that is or done, will, free willingly act”; volition in the an doing means act “is it proceeds from a mind free voluntary, to act in an act done distinction from without mental capacity nature, understand or under its circumstances which suffi show that it was the result of ciently involuntary forces and the will.” Neither an alone nor act an intent alone against crime; therefore, can constitute “actual intent to com may commission, mit a crime its long precede but no pre intent necessary any length determined of time con crime, | because if the will is simultaneous nection Burdick, Crimes, ‘ n A%with the act it sufficient.” Law sec Yet a criminal tions intent (1946). not neces- *14 aof for- an intent sarily voluntary doing to do wrong; law, act At common mental may bidden be enough. “voluntary element exercise crime required every which has the will, mind of of human faculty wishes, choice, exercise that power of and of power law forbids and desires, intends. The determines or criminal If to and obey, commands various one chooses not things. choice, will, effect by carries that into some voluntarily or act, the two elements of crime are present, necessary voluntary incurred. choice of liability punishment This what the law has declared to be constitutes what doing intent, the law calls a bad evil otherwise called malice.” or Ibid, 112, 129, sections and 129 (c). 129(a), 129(6) act crimi- may make the of the doing prohibited Legislature a corrupt purpose nal or of or criminal penal, regardless act; even of the and in of the character knowledge illegal act need be only such case doing proscribed Lobato, cited supra. shown. State Hawkins, Blackstone, the views of and says: Coke affirming is a and infants under defect of “Infancy understanding, discretion, not be punished age ought Comm. criminal whatever.” Blackstone’s prosecution 1 Hawk. 247(h) (1629); Coke’s Inst. P. C. (1800); ed (Curw. have here an concept justice
We enlightened and moral with responsibility equates intelligence not But the the rule always practice. culpability, age individual; varies there is a discretion twilight in which understanding vary zone discretion degree render difficult and uncertain. objective There judgment may said, at which it to use the words age is no absolute Hawkins, “under a the individual no nat- longer between disability ural evil.” distinguishing good Crimes, Burdick, Law section 154. But if incompetent to be of their minors are saved irre- penal-consequences discretion acts, an and criminal accounta- sponsible and fruits of fairly bility grounded teachings experi- law, needs must be established alone to insure ence the essence of child, individual justice but to effect the salvation of children tender under- unripened for the ultimate standing itself. This in its good society very nature involves the exercise of a reasonable legislative discretion, directed the common experiential knowledge mankind. Considered in relation to the individual case, *15 rule of discretion establishing is age perforce arbitrary; but it is sustainable as a of measure social for prime import the care and of rather than protection irresponsible youth for a punishment knowing criminal act. understanding Under law, the Roman of age puberty was the of age discretion. earlier were jurists con agreement of some it cerning legal age puberty, should insisting fact, each case correspond to others that physical should be fixed by law. Justinian uniformly accepted latter view and established of at age discretion boys and 12 in Justinian's Inst. girls. pr. com mon law followed the Roman law and set 14 as the years of full criminal age 1 Coke's Inst. capacity. 247(b); 28; Burdick, Hale P. C. 4 Blackstone's Comm. 23. See Law Crime, sections of But new of the criminal of concepts capacity have youth from the crucible come of human in a experience, complex that has society great structural and New undergone change; states, in common with Jersey, other has accepted thesis that a under the of is age to be deemed person incapable 2A:8.5-4, of crime. N. committing whose is genesis L. c. 285.
There doubt that can no this limitation in relation criminal within the capacity to legislative province. It in accord accepted of proved generally principles a measure that bears a rational relation sociology---- interests itself. society to basic as we History, have seen, without its instances is not criminal prosecution children of tender wholly seemingly punitive pur- of the existence of the irrespective mental poses, qualities essence very are of criminal which responsibility. that made the system physical fact the test of Under case,, in the accountability particular miscarriages were all more the com- justice especially too frequent, plex of our But above present-day organism. social mischance, beyond the of administrative failure and danger frustration, there is fundamental considera- the undoubted tion that children of such tender in the formative years, period life, physically peculiarly psychologically and the susceptible sympathetic approach regenerative that make for individual and social processes adjust- uplift ment and The humanitarian activates principle integration. serve the modern socio-economic philosophy designed as an of criminal instrument primary purpose justice as a means crime---not society’s protection against retribution, rather the furtherance of vengeance youth social and the welfare. offers justice Erring general effort; remedial aim of fertile field for obvious this statutory correction science policy according behavior, fulfillment re- human social primary sponsibility. *16 due to ironies and largely
Child broken delinquency and default, and unfavorable en- irresponsibility parental factors, and associated pressures vironmental involving control; State, the child’s and the as beyond are ofttimes such means to for the provide undertakes parens pairiae, care, custody, victims and protective discipline, wayward them, and treatment to fit psychologically physi- correctional established, life. Once the status is for a useful social cally, is treated much the same as the dependent delinquent as “criminal concepts child. Such responsibil- or neglected like, here; have no place “punishment,” ity,” “guilt,” and are exercised for and correc- protective control custody —— — n and protection treatment based purposes tional rather than based on a tech- punishment understanding on The is both policy preventive status -of guilt. nical the juvenile The philosophy policy involved reformative. tender youths render incapable statutes that and child-corrective. I would refer is child-protective One and Mrs. Glueck’s Thousand Juvenile De- Professor to linquents, 12, 13, 14, pp. end view is not criminal but social justice. Wayward children are a commu nity problem; adult behavior ofttimes has its roots in child hood experiences. redemptive concerns process diag nostic techniques child therapy, psychologic, psychi atric and other modes and methods which of immedi ate interest. There are those who would the wisdom question efficacy But, once the sociological techniques. legis lative field conceded, of action is is not legislative policy a justiciable issue.
Yet, this, as in action, all other spheres the Legisla- ture is controlled by specific constitutional limitations. 124 N. J. Goldberg, L. Ct. (Sup. 1940),
affirmed 125 J.N. L. 501 &. A. I had occasion (E. to dissent from the the then Juvenile Court holding Act, R. et 9:18-1 constitutionally seq. deprived old Court of Oyer and Terminer jurisdiction try on 15-year-old an indictment boy assault with intent charging to kill and the carrying concealed The dissent weapons. rested thesis that upon beyond power to term either murder or an assault with intent Legislature to kill “juvenile then to an delinquency,” proceed adjudi cation of without the constitutional safe guilt regarding applicable guards prosecutions, impose upon such for the crim adjudication penalty prescribed specific thus inal offense branded I read the delinquency. then statute do that very existing purporting thing. authorized, 1937, 9:18-30 such adjudication, R. S. upon ' * * * of “the law” one imposition penalty provided was established as consonance the criminal con Eor cept particular against society. transgression offense, termed a crime when committed aby person specific *17 more, or so it the years 16 was court provided, age in the same law the “may” impose penalty prescribed by shown,” adult, “on cause although proper “may” case of an that the child be on or committed placed “probation” direct care, for the institution established public custody, “to (1) offenders,” and reform of or “to (2) instruction any commitment to may other like institution which be author law,” care, ized “to the control of by custody (3) of children's as law.” provided by state board guardians sense and plain This seemed to be significance use verb in “may” terms. The the permissive legislative could have no relation to these alternative courses action 9:18-29, other R. directed statute, meaning. all to “hear and determine cases of chil Juvenile Court dren under” its provisions jury,” “without arising trial where an adult was jury charged secured mode, It offense triable demand made. upon a statute of this drafting there be careful requisite class and a delinquency to between a distinguish the status and treatment after procedure both proceeding, is determined. cited Delinquents, One Thousand Juvenile 12, 17, acts where the Massachusetts and Illinois supra, pp. it is necessary inquiry Rut to analyzed. pursue the majority as to constitutional I would refer to sufficiency. Mei, to 122 N. case and In re opinion Goldberg Daniecki, re 117 N. J. (E. & A. and In 1937), Eq. & 119 N. J. (E. affirmed Eq. (Ch. Eq. A. It I held the view that the suffices to 1935). say in nomenclature did not alter the essential char difference thus and the infant act given judicial cognizance, acter where procedures could not constitutional deprived him as the same subjected penal consequences conviction adult. the conviction of an
But, there came series of amendments beginning :18-12, 2A 1937, 9 N. J. S. :4-14 and of B. eventuating :4-15, renders of this aca validity hypothesis 2A which wras the amendment of the Juvenile Court By demic. over all de “juvenile exclusive cases given jurisdiction a child under defined commission linquency,” act when committed “of person which years age or over” would constitute “a felony, of sixteen misdemeanor, misdemeanor, offense,” or other these high jurisdiction exclusive others. The court given among *18 hear and determine “all eases of the persons between ages of sixteen and shall enu- who of the eighteen commit any” offenses, merated “if the in cases shall be complaint such certified the by of the grand jury prose- the approval cutor of the pleas, the by by or of the or prosecutor pleas, sessions,” of court the judge quarter of sessions or special the the Court, judge Juvenile after and report investigation made by the chief It officer probation county.
directed that in Juvenile Court’s such cases hearings “shall be from those under separate involving juveniles of sixteen “at age years”; court was empowered, time before any adjudication,” final “return” the complaint “if, whence it came upon its the facts disclosed judgment at the 'the hearings, should not be complaint adjudicated” Court, the Juvenile or thereafter for a violation of the conditions probation, shall be thereupon “jurisdiction resumed of the court by grand jury, prosecutor pleas, sessions, be, sessions quarter special may or as the case if said as had in the first complaint instance been certi- 1943, fied” to the Juvenile Court. c. 97. L. 77,
There were 284, amendments in c. and in c. then :4-15, came N. J. S. 2A “juvenile defining as the child delinquency” commission under 18 by years act which when of the age any person committed aby of 18 or over would age years constitute mis felony, high misdemeanor, offense, demeanor, or other providing if it shall to the Court appear satisfaction Juvenile that “a defined, case as thus com juvenile delinquency,” mitted juvenile or “should age years court, not be dealt with either because of the fact offender, that the is an habitual person or has been charged nature, with an offense of a heinous under circumstances which of a sentence rather may require imposition than this disposition welfare of permitted by chapter society, then court refer such case to the may county and a of 16 prosecutor,” “may and, and trial case, demand such presentment jury court, to the when this act made known case” such shall “be “referred to the and thereafter dealt county prosecutor,” with in manner a criminal case.” exactly the same
There is in this classification determining significance the earlier I in resolves the constitutional found problem The supra. cited Goldberg, statute considered State years of of 16 or subjection youthful delinquents under rather than the “disposition” permissible “sentence” is the delinquent “for the welfare of where society,” act of a “heinous “an or the offense is charged habitual offender” of nature, “imposition under circumstances” requiring sentence,” of rights and the of the constitutional recognition cases, make manifest and trial such by jury presentment under 16 years delinquents to exonerate purpose legislative of acts from the essentially penal consequences age be if above by persons age, would perpetrated care, and cor- society’s and to them to subject protection, uplift rective for the individual’s social custody common good. de- of juvenile
Intent would seem to an ingredient also; intent, rather penal but it is not criminal linquency act when the than in its consequences wrongful correctional occurs. there no distinction
But, token, statutory the same acts “noncapital” in this between regard “capital” made criminally A of 16 or 17 delinquent years offenses. circumstances, under the safe- responsible given the object rather than of all constitutional guard guaranties, under Act. measures Juvenile merely of reformative wholly incapable under the Delinquents matter what the nature or of the act crime, no gravity and are amenable capacity, only when done one of criminal and the rehabilitative custody process care protective their own interest. This by as well as social good terms. There the con- and unequivocal being certain fault, the absence of punitive law templation entail cannot waywardness punitive behavior delinquent statutory its connotation sug- Delinquency consequences. rather than the attitude judicial psychological gests toward offender. Such is within plainly competency State, as parens patriae. is the Legislature forum for those who would quarrel with the wisdom this concept of moral social responsi- bility. constitutional doctrine of separation powers judicial forbids superintendence of One legislative policy. functions of the confine the primary judiciary coordinate and executive legislative departments govern- ment within action, their respective spheres of but must be certain that in this process containment it maintains the balance against excesses and intrusions of its own. it is
Thus that I cannot subscribe to view that murder is a crime sui generis that remains a within pur- view the Constitution, as such is not to differ- subject ent here, classification such we have legislative following In re Mei and v. Goldberg, cited supra.
Even on that the indictment murder is hypothesis, for not sustainable this boy it be shown against 15-year-old unless that he a criminal entertained intent to commit robbery; and under the in Goldberg case he the holding by statute of The criminal incapable robbery. offense laid him is murder in the a against perpetration of and robbery; where there is criminal homicide such circum capacity, stances is murder in the even first not a degree, though willful, deliberate R. premeditated S. killing.
2:138-1, 2, .113-1, N. J. 2A intent to commit the crime of is an element of the robbery essential statutory offense murder in the of first of this infant degree; defendant was as matter law. I would incapable a of refer in,this Grillo, the dissent State v. 11 N. 173 regard (1952). v. 259 N. Y. E. 88 People Roper, N. (Ct. the New York Court a of considered
App. Appeals a murder in relation to statute that felony only providing under a child seven matter of law years incapable of crime, “of the of child seven committing though age twelve years, years, presumed to be age and.under crime, but the removed may be incapable presumption by understand,” “a he had sufficient capacity that proof sixteen years age, and less than more than seven child of which, if committed act or omission commit who shall life death or by a crime not adnlt, punishable would he crime, but deemed of any not be guilty shall imprisonment, delinquency.” statute, a child of that under the out Pointing Lehman, J., said: murder in the first degree, may guilty established, penal guilt its conse of a crime has been “When guilt quences can child and adult criminal. But are the same every proof element of the without essential not be established crime, and, of the intent is an element since a felonious essential murder, guilt with of a defendant can never be established crime of Thus, guilt charged proof intent. defendant out of such may depend capacity degree upon his to form with first murder is under the the fact defendant the felonious intent. Then may carry legal consequences. murder There can be no of sixteen depraved mind. of malice and felonious intent and without evidence simply accused de in form when it The indictment was sufficient ‘wilfully, feloniously, having killed deceased fendant of necessary prove aforethought.’ On the trial it was such malice necessity conduct, this was and willful and felonious malice showing provision statute satisfied in with the of the accordance engaged the defendant was in the the homicide occurred while * * * felony. charged The crime of murder commission of another crime, design single in the indictment is a whether committed or independent felony; independent during of an the commission ‘the being felony premeditated and characterizing intent established like deliberate purpose degree solely so for the the crime charged, purpose killing.’ People mind or inherent the evil Lytton, 310, 315, [79 503]. Y. N. E. A. L. R. 257 N. may robbery; but, participated in unless defendant have intent, guilty participation with felonious he not was was guilty felony, par felony, and, independent if he purpose ticipation mind does not evince ‘the evil inherent * * * *21 killing.’ can in the The defendant be convicted of murder degree only upon finding first a of intent.’ verdict ‘felonious of jury finding imports participated a that the defendant in the the by robbery, statute, judge commission charged a defined for trial of as the the finding guilty. that without such the verdict must be not Upon age years, finding trial a defendant over the of a the of sixteen by participation robbery, statute, import of in a as defined the would intent,’ every finding robbery, degree, of ‘felonious is a felony. Upon age sixteen, par the trial of a child under the of the robbery, robbery ticipation a child in a or at least in a in the of degrees, guilt felony, would not establish the of a second or third only juvenile delinquency. of a minor offense characterized Hence, plain upon the defendant’s conviction rests no guilt finding felony, finding intent, of of a and thus no of felonious * * * judgment Upon must reversed. be the new trial may degrees this defendant be tried for murder in the first or second through killing being committed the of a human with intent to effect ma'y impelled by his death. Such an action be ‘evil mind’ and felo- by child, nious intent as evidenced the criminal acts of the but not by Legislature acts which the has declared are not criminal when by person committed child. A who with evil mind commits may, society, punished, by crime interests be even death for undesigned person, the and unforeseen result of the crime. No cer- tainly age subject sixteen, no child under to death or life imprisonment though undesigned because the calamitous result of inception.” acts which are not criminal in their Here, murder laid guilt accused child indictment can be predicated of the commission of a only crime of which statute he is and so the incapable, requisite intent felonious would be wanting. illogie the converse of incontestable; this would seem hypothesis to be and if it law, it is not good for it is to logic, good presumed intended the Legislature conse- logical of the declared quence policy.
I concur the reversal order and the remand of the cause to the Juvenile and Domestic Relations Court.
Oliphant, I find (dissenting). compelled myself dissent in ap- this case I with the basically because differ proach and reasoning majority opinion. Mei,
In In re 122 N. & A. it was J. Eq. (E. held that the provisions of N. J. 2A :85-4 and R. S. 9 :18—12 did not the courts find deprive grand jury or a murder under the ing indictment defendant against age it. In that case it was held years trying accused, who was 15 and 4 when months of committed, crime was held under charge could not be murder be the Juvenile and Domestic Relations Court * ** into cause “a murder charge deeply cut so emotions, human with life’s violently experiences collides so fair in fact and and is so horrible expectations, within the that it remains contemplation society, *22 purview Constitution, of the whatever name and whatever treatment may appended by to the legislature.”
This observation goes to heart of the very problem attempting bring to the crime of murder within the statutory definition of over which “juvenile delinquency” subject Juvenile and Domestic Delations is vested with Court juris- diction the statute. N. J. 2A :85-4 re-enacted by merely the provisions 1935, 285, of L. c. which con- passed 1935, 284, with L. c. junction defining juvenile delinquency. 27, 1935, Both statutes became effective two years prior June to the turned decision the Mei case. The Mei case on oC and not of question power policy. constitutional case, enactments to tire Mei L. legislative, subsequent 97; 1948, 284, c. L. c. 77 and c. were likewise L. prior to the. decision in State v. 137 N. J. L. 149 Smigelski, Ct. dismissed 1 N. I (Sup. 1948), appeal (1948). no to discern clear-cut intention these statutes legislative the. flat in the 2Iei case that murder was be ignore holding yond the Juvenile and Do purview jurisdiction am the estab mestic Delations Court. T to follow compelled lished rule tliat whore a statute has been construed by by long courts and this has been supported construction by on the of the. or continued part, Legislature acquiescence same, failure amend the statute use of the or language, that this is evidence respect particular question, is in accordance with the legislative such construction Moresh, & Insurance v. Banking intent. Commissioner of Miele, ; Barringer & A. 1939) 122 N. J. L. (E. Freeholders, v. Board Chosen ; N. J. 139 Miller (1951) Therefore, I conclude that the hold 10 N. J. 398 (1952), and that the Juvenile controlling is still in Mei case ing try Court is without jurisdiction Delations and Domestic 2A N. J. S. of murder as defined charge :113— have, however, in effect overruled hold- The majority, that under the and assert parens patriae in the Mei case ing doctrine, sociological grounds, on psychological both have the to treat such power and the Legislature infant on psychological when committed *23 sociological basis and it bring the within definition of ju- venile as set forth delinquency in the statute.
The right of malefactors punishing derives its origin from that which every individual had in the originally society of nature to the repel committed injuries himself, against or against members society; of the a has right that been yielded and transferred to the State. The principal end of punish- ment is the society, welfare of there are many various means of at this end arriving to according circum- varying stances, and the State inflicting punishment may propose different and particular views with consistent the welfare of In society. Grotius, the words of “In we must punishments either have the good view, of the criminal in the or advantage of him whose interest it was that the crime should not have committed, been the all indifferently.” of So it is good if the universally acknowledged that to cor- proposes rect the criminal and a impose punishment, the punishment, if it, the criminal is the public reformed tends to good. But the punishment strictly prin- to be subordinate to ought cipal end of criminal of the processes; namety, safety public. dictates that the established fox the justice Prudence preservation exercised in a man- society of should not be such ner as to subvert the State. Within this ambit general from under action of the is free restraint Legislature judicial our of the and whether separation powers, doctrine of punishment pimitive for a should be or correc- solely within the strictly Legis- or a of both is tional combination lative province. here problem presented
But nub revolves around 2A N. J. provision, which statutory provides: :85— age incapable person is deemed “A nuclei- the com- mitting a crime.” the fundamental seemingly ignores This fact of the provision man and law nature as to facts of applied exist- everyday knowledge ence are of and public which common notice.
I comprehend reasoning cannot suggests little hoodhrms armed guns, marauding knives, gangs lethal be considered switch knives or other weapons law the crime of as a matter of incapable committing years, murder. Infants under according statistics, of the heinous a crimes perpetrate high percentage situation has throughout country, committed it is threat reached such serious proportions welfare and citizen. one safety law-abiding public where confirmed alarming instance reached the situation murder and “to organized gang teenagers criminal had part while himself took crimes. he never physical rob” 50 holdups little committed and bur- This hoodlums gang with weapons months eight supplied glaries period Murder individual the confirmed criminal. *24 it confirmed criminal appears is bad but when enough, to for sole purpose has the organized group teenagers of un- rob, time to examine the murder and then the has come the treatment of offenders derlying philosophy of is of murder involved. where the crime particularly is of the human creature three any Homicide or of killing and first no kinds: felonious. The has excusable justifiable, all, little, the third is share of at the second very guilt the nature that man is the law of highest against crime *178. of Blackstone capable committing. Chitty’s evil of a criminal offense are an inten constituents Labato, act, and unlawful J. 137 (1951), tion an State N. of declaration above legislative quoted so the effect the infant is of mentally capable forming is that who the overt act of homicide is not evil intent and commits found the guilty highest against or cannot be of guilty intent nature, merely he is incapable because of of his age. because government society end civil on is to principal and advantages, especially mankind all their natural
secure to preeminent natural is Of all the one rights their lives. is not master his own life nor life. Man right to the voluntarily proposition he accede can in life in two situations: except (1) master his State, and (2) manner the defense direct for manner direct punishment crimes. His right life is based law; natural he upon otherwise would be the State, creature of have he would no based his rights upon own nature aas rational being except rights given him the State. What the State to him rights might give him, it if away could take from and this were so the word “unalienable” as I used Article of 1947 Constitution another synonym wrould become for “expendable.” I Article of our Constitution provides: persons independent, “All nature free and and have certain rights, among enjoying natural and unalienable which are those of defending liberty, acquiring, possessing, protecting and life and and property, pursuing obtaining safety happiness.” and of Thus there is reserved to the individual citizen his unalien- able rights, that of including life liberty.
Natural liberty which man- right, gives nature to all kind, of of their disposing persons and after the property manner they convenient judge most to their on happiness, condition of their within the limitation of larv acting nature their not to the their abusing prejudice of fellowman. To reciprocal this is a right liberty there reciprocal of na- corresponding obligation, by which law ture binds all mankind to men respect liberty other not to disturb them the use make they of it so long they do abuse it. therefore,
Civil on the liberty, other hand more nothing far than natural restrained as is liberty by positive so law *25 human and main- necessary preservation for the of the rights in society. tenance of and order Civil is natural peace liberty laws liberty, necessary such as are main- regulated by the and with the of every tenance of attended citi- justice right that the insisting government zen and of shall make person and of its this authority, security use proper natural and civil liberty unalienable of shall re- right Thus it is that the highest and of protected. duty spected the life man. Man as a of citizen of protect State to insist that to law of the right positive has State He and his this children duty. have discharge rights the, male- child those of that are to superior this respect factor. has been con- murder history every society civilized malum It is inherently wrong. and
sidered be naturally to the transaction nature of very from the se because per man. civilization Every natural of right the highest violates against offense highest murder or has considered society and it human being, a rational the law when committed and malum murder is wrong has never been questioned and law is immutable natural se. This per principle fathers, founding well understood indisputable and in the Con- mentioned specifically and the mere it is not fact the general guarantees in view of moment is of no stitution in Article I. man found unalienable rights case, the mere restatement this As is stated in the. Mei law adds to the positive nothing proposition part In murder of murder. felonious crime turpitude out, if life is this can be done wiped act the right sociological or lack of on or impunity guilt psychological unalienable which are the basis, rights, among then the other freedom of to of con- speech, liberty to right personal liberty, futile and utterly would be private property, science and to and defend them in the judicial All attempts protect sterile. if the life meaning purpose right forum would be without law say fiat the can by legislative positive is not inviolable intent is in- that an infant of criminal mentally capable Man, including the crime of murder. capable committing animal, a children, psycho-physical being capa- is a rational is mentally free Unless he ble will. thought of rational irrational, there and thus comes a incompetent point he capable life of each when becomes be- distinguishing is in the himself, This nature- of man wrong. tween right at which it is depends reached although point upon in which he lives will or civilization type society with each individual. also somewhat vary State, law and this insofar as a At the common concerned, inability to form criminal intent is a under to children the age matter defense. As of seven *26 there a is conclusive presumption the child was doli or incapaz, incapable entertaining intent, criminal and no can evidence should received to capacity show in fact. Between the seven ages of and the presumption rebuttable, is but State or prosecution has the burden of showing the infant has sufficient to distin- intelligence between guish and and wrong to understand the nature right illegality particular act. Over the of 14 chil- dren were and are presumed to be doli capax and therefore responsible. The is rebuttable but presumption the burden is proof upon defendant to he did establish that have sufficient intelligence to understand the nature and con- of his act. rules sequences These are consistent with the nature of man and the natural use his faculties of intellect will, and his freedom acquire the necessary knowledge to make distinction between right are wrong. They determine the rules to ultimate fact an in- ability dividual distinguish between right wrong. point when in life is person capable making this distinction it is reached that may vary, once whether it be person, child, an adult or a of criminal intent. capable trial for a and conviction within the strictly judicial province determination ultimate fact intent is likewise within judicial province. of criminal so, it, as I see And this constitutional being guarantees and trial are respect to indictment applicable. Once found, trial an indictment ultimate fact of intent, most which is the element important murder, must be tried jury. charge were here of sufficient moment to in- expressed The views many states remove the Legislatures charge duce the field It is in- of murder from the delinquency. in this where civiliza- anomaly country, deed a curious reached its highest has insofar respects peak tion in some and comfort of individual is as the welfare concerned unlimited opportunities practically where educational child, face to with a we are face statute that brought child is a the normal rational human denies that in effect *27 insofar as nature is concerned. being the highest against there state of civilization primitive I doubt even a Bluntly, that subscribes to such any society proposition. is child, (cid:127)within defined age the statute that a practically says animal limits, is a an without being merely not rational or to its baser animal instincts. will mind control previous perti makes the that all appellant argument State, in last resort this re nent the court of decisions of Daniecki, Ralner, affirmed 117 N. Eq. (Ch. J. by Mei, & In re State 1936); J. A. (E. supra; 119 N. Eq. which the infant defendant are cases in Smigelski, supra, deliberate, killer or was the actual willful, a premeditated He or other robbery felony. killer in the perpetration murders.” He contends murders as “designed refers to such infant here where the defend are in point that these cases that there is no in this killer and case ant was not actual an by “a murder” infant-where involving felony upon scienter is commission predicated criminal intent or 2A in N. of crimes listed :113— follows, N. J. S. 2A :113-1: Murder, statute, is defined arson, committing any person, attempting in or to commit “If any robbery, sodomy rape, burglary, kidnapping, or act unlawful state, probable consequences against peace of which the of this another, anyone may bloodshed, or if the death of ensues kills any act; attempting committing or to commit such crime or from the sheriff, coroner, judge, magistrate, any person constable if kills a or state, criminal, justice, of this either civil or or or other officer of justice, criminal, either civil or of the officer of marshal or other any duty,' States, his office or or kills in the execution of United endeavoring not, assistants, specially called his aid or whether to his authority knowing peace apprehend criminal, preserve to or suppress assistant, person endeavoring private or kills such knowing affray, criminal, apprehend a the intention with or to interposes, killing person person private so which then such such guilty of murder.” fixed by murder and the punishments degrees 2A:113-2, reads: N. J. S. which perpetrated poison, lying which is means or “Murder wait, by any willful, premeditated kind of other deliberate or per- killing, perpetrating attempting or or which is committed kidnapping, rape, robbery sodomy, petrate arson, burglary, or Any degree. inurcler in the first other kind of murder murder degree. jury finding person guilty second A of murder shall designate by degree their verdict whether it be murder the first degree.” in the second The statutes make no distinction between those who do actual killing those who do not where the occurs killing in the commission or attempt to perpetrate crimes enumerated Under therein. these sections one aids, who abets, counsels or procures another to commit murder pro vided he is near enough assistance, render ais principal Giberson, not an accessory. State v. J. L. N. *28 Mule, &(E. 1924); A. State v. 114 N. J. L. 384 & A. (E. 1935).
The appellant further argues that the commission of the crime, in this instance robbery, provided the criminal or felonious intent for the crime of murder and that under the provisions of N. 2A J. S. :85-4 the defendant is deemed in capable of the crime committing He relies robbery. prin 170; cipally- upon the case of 259 People N. Y. Roper, N. 181 88E. and (Ct. App. 1932), many other cases in other jurisdictions not the crime dealing of murder.
But Mowser, our law is to the In contrary. State v. 474, 479, N. J. L. & A. it (E. is held that heinous offense is the and the crime of killing while robbery, it is an essential and integral part of principal offense, a distinct affair but out of the grows same transaction. All murder at the law common capital offense and there was no of murder grading or definition of degrees of crime, is the in such situation England today. The reason for or grading fixing degrees of murder is to provide different situations, in different punishments and I do not in challenge competency this legislative respect. The this history type is discussed at legislation some length in 22 For dh am L. Rev. 274.
Our following theory, this set Legislature, up two classifi murder, cations of murder of the first degree and murder of and it made the degree, the second crime of robbery con murder in the first stituent element of degree where death from the results or to perpetration attempt perpetrate robbery. doing so reiterated doctrine of the com law that if mon death results in the prosecution felonious bloodshed, intent in naturally its tended to consequences it will be murder. Blackstone *193. It made Chitty's murder the first degree capital punishable by offense unless life J. death recommends N. S. jury imprisonment. State; A :113-4. have but capital We two offenses this 1, 2, are murder in the N. 2A first J. S. they degree, :113— treason, 2A :148-1. N. Whether in matter of murder the punishment Legis- lature feels it children in a desirable different classi- place fication is a matter of within the purely public policy But the commission legislative power. guilt insofar for murder is I the crime of concerned cannot disregard fine enormity spun reasoning of the offense legal that it be treated as mere juvenile delinquency. can agree support I am unable subscribe nor can I find which the can declare that those theory legal Legislature are incapable old depravity young 3rears murder. such are ex- Many the crime of committing A “The prominent recently criminals. said: perienced jurist has and adolescent delinquency problem whole now a scandal.” worse and is become *29 has to be his right protected by x\ citizen peaceful a a and if have called spade spade, young and to government a intent they mentally incapable hoodlums establishing the burden of proposition to put should rules and are only under established entitled of law in a court afforded guarantees constitutional matter of to right aas citizens. to other court below denying affirm the order of
I would the indictments to Juvenile transfer for the motion Court. Relations and Domestic Over the many years our (dissenting).
Wachenfeld, these has matters in reference worked procedure present cry injustice hue or has great No satisfactorily. out quite been heard, nor is there a ease single of which disposition has offended the public’s sense of essential fairness.
The method of has disposing these cases now been changed, not by enactment, legislative where the ad power resides, mittedly by new judicial interpretation. re Mei, 122 J.N. &(E. A. which has for Eq. stood years, II is overruled and no is the law. longer
Up now, until murder, all who committed whether old young, were held strictly accountable to the law. If the offender the difference appreciated between right wrong, he was answerable in of law court for the highest crime known, the another’s life. taking of
Today’s is more than His youth precocious yesterday’s. diminished, has not been un- aggressiveness and the record shows his fortunately out of bounds propensity going has not decreased. The child who flouts authority becom- too ing prevalent, seriousness these infractions becoming Juvenile still increasingly grim. delinquency one of our foremost its solution is problems, vainly being sought educator, by legislator many public agencies.
How, then, will this in the law affect the dilemma change us? Will it help or hinder? Those of tender confronting likely who are commit the crime will certainly involved not be additionally deterred that the knowledge pun- it ishment for has been abolished the worst practically that can befall them for murder under felony committing the new rule is in a confinement or correctional reformatory trustees, institution for the term fixed exceed few years. case indeed youth offers fertile field for remedial Erring effort, but if in we are much I doubt this instance making aof contribution. now those police keep they ap- cannot track of have and referred Juvenile
prehended to the Court. disposi- there is and secret and makes better law tion confidential To responsible enforcement those for more difficult. of the offenses so we now add processed classification *30 I have fears of its consequences. crime of murder. grave Oli- Justice many expressions I embrace oí cannot rea- briefly I feel state phant’s dissent, obligated Mei, re supra, in In I adhere the decision would why sons below. and therefore affirm judgment I-Teher, J., in result. concurring Vanderbilt, and Justices Justice For affirmance —Chief Oliphant and Wacheneeld —3. Heher, Burling, Jacobs For reversal—Justices Brennan- —4. L PLAINTIFF-RESPONDENT, ZELIFF,
DAVID CROSS-APPE SABATINO, LANT, SABATINO, v. ALFONSO FILOMENA URDANG, DEFENDANTS-APPELLANTS, AND A. ALBERT CROSS-RESPONDENTS. Argued February March 23 and March 1954 Decided