For the prosecutor, John J. Breslin, Jr., and Nicholas A. Carella.
For the defendant, James A. Major and Gaudielle & Shuart (Joseph H. Gaudielle).
Before Justices Trenchard, Case and Heher.
The opinion of the court was delivered by
CASE, J. Defendant, a lad of fifteen years, was indicted by a Bergen county grand jury on two counts charging, respectively, assault with intent to kill and carrying concealed weapons. The Bergen County Juvenile Court asserted jurisdiction pursuant to R.S. 9:18-1. The Oyer and Terminer, on the contrary, claimed jurisdiction upon the contention that the Juvenile Court act is unconstitutional. It was deemed wise, on behalf of the state as well as of the defense, that the question should be submitted for decision upon a writ of certiorari. A writ issued, and we now have before us a motion on behalf of the defendant to quash the indictment (1) upon the ground that because of age and the provisions of the statute, R.S. 2:103-3.1, the defendant was incapable of committing crime and, R.S. 9:18-12, that the only charge to which the defendant may be subjected is that of juvenile delinquency, triable only in the Bergen County Juvenile and Domestic Relations Court, and (2) upon the further ground that the effect of the indictment is to deprive the defendant of due process of law contrary to the Fourteenth Amendment of the Federal Constitution.
The prosecutor states, we think accurately, that "the real point in issue is, does the Juvenile Court act of 1929, as amended, deprive the Oyer of jurisdiction to try the juvenile defendant for assault with intent to kill and carrying concealed weapons?"
R.S. 2:103-3.1 (formerly chapter 285, Pamph. L. 1935) provides that "a person under the age of sixteen years is deemed incapable of committing a crime under the common law or statute law of this state." R.S. 9:18-12 (formerly chapter 284, Pamph. L. 1935) provides that "juvenile delinquency
is hereby defined as the commission by a child under sixteen years of age of any act which when committed by a person of the age of sixteen years or over would constitute: (a) A felony, high misdemeanor, misdemeanor or other offense * * *." In the case of In re Mei, 122 N.J. Eq. 125, it was held by the Court of Errors and Appeals that the first provision was not to stand by itself as an act of amnesty but was in complement of the second provision and was meant to go as far as, and no further than, the correlative features of the latter act.
The argument of the prosecutor is that R.S. 9:18-1 and R.S. 2:103-3.1 "seek to deprive a juvenile of his right to indictment, trial by jury, assistance of counsel in his defense, freedom from double jeopardy, protection against self-incrimination, the right of cross-examination, formal trial procedure, confrontation by his traducers, and a public trial, and in their places substitute a star chamber proceeding on complaint which may be made on information and belief and sentence by the Juvenile Court judge to the penalties provided by law for the offense set out therein" and that these statutory enactments have been declared unconstitutional by the decisions of our Court of Errors and Appeals in Ex parte Daniecki, 119 N.J. Eq. 359; affirming 117 Id. 527, and in In re Mei, supra.
Both In re Mei and Ex parte Daniecki were upon issues arising on indictments for murder. The underlying reasoning and the actual holding in the Mei case are to be found, according to our view, in the paragraph of the opinion at page 129 which reads:
"We think that a charge which is in effect that of murder cuts so deeply into human emotions, collides so violently with life's experiences and fair expectations, and is so horrible in fact and in the contemplation of society, that it remains a crime within the purview of the constitution, whatever name and whatever ...