For affirmance -- Chief Justice Vanderbilt, and Justices Oliphant and Wachenfeld. For reversal -- Justices Heher, Burling, Jacobs and Brennan. The opinion of the court was delivered by Jacobs, J. Heher, J. (concurring). Oliphant, J. (dissenting). Wachenfeld, J. (dissenting). Heher, J., concurring in result.
Prompted by mid-Twentieth Century sociological precepts, our Legislature has directed that children under 16 who commit any offenses which would be criminal if committed by adults, shall not be triable in criminal proceedings but shall be dealt with exclusively by our specialized juvenile courts. The legal issue presented to us is whether this clear statutory mandate may be judicially disregarded to enable a first degree murder trial in the County Court of a 15-year-old boy who participated in a robbery with his father during which his father killed two persons.
In April, 1953 Eugene Monahan and his 15-year-old son Michael were indicted for the murder of William Diskin and Sebastian Weilandics. Eugene Monahan has been tried, convicted and sentenced to death and his appeal is pending before this court. The State concedes that the victims were killed by the father and not the son but asserts that since the homicides occurred during a robbery in which the son participated, the son was equally triable for murder in the first degree, punishable by death unless there is a recommendation of life imprisonment. See N.J.S. 2 A:113-1; N.J.S. 2 A:113-2. A motion was made for transfer of the proceeding against the son to the Juvenile and Domestic Relations Court on the ground that under N.J.S. 2 A:85-4 and N.J.S. 2 A:4-14 it was cognizable exclusively in that court. The motion was denied and an appeal was taken.
Cf. R.R. 1:10-1 (b); R.R. 2:2-3(a)(3); R.R. 2:2-4; R.R. 2:12; R.R. 3:5-5(b)(6)(a). Although several preliminary procedural matters have been raised by the State, we shall pass them and proceed with the determination of the meritorious issue presented. It is of public concern, it has been fully briefed and argued, and its expeditious determination is required in the interests of complete justice. See State v. Tune, 13 N.J. 203, 209 (1953); City of Newark v. Pulverman, 12 N.J. 105, 108 (1953); Hendrikson v. Koppers Co., Inc., 11 N.J. 600, 605 (1953).
The principle of removing or mitigating the criminal responsibility of children has ancient origins. In the early case of State v. Aaron, 4 N.J.L. 231, 244 [ Reprint 269, 277] (Sup. Ct. 1818), Chief Justice Kirkpatrick restated the settled common law doctrine, adapted from earlier Roman law, that since a child under seven "cannot have discretion to discern between good and evil" he is incapable of committing crime; between the ages of seven and 14 he is subject to a rebuttable presumption of incapacity; and after 14 he is presumptively capable. See Clark & Marshall, A Treatise on the Law of Crimes (5 th ed. 1952), pp. 125-128. Although the common law rule precluded criminal convictions of many young offenders, there are instances in which it failed to do so, with shocking consequences. Blackstone cites cases in which children of very tender age were drastically condemned as adult criminals; he refers to the hanging of an eight-year old for maliciously burning some barns; to the hanging of a ten-year-old who had killed one of his companions; and to the burning of a girl of 13 who had killed her mistress. 4 Bl. Comm. (13 th ed. 1800), 23. Similar illustrations in our own State are not lacking. In 1818 a boy of 11 was tried for murder (State v. Aaron, supra), and in 1828 a boy of 13 was hanged for an offense which he committed when he was 12. State v. Guild, 10 N.J.L. 163 (Sup. Ct. 1828). During most of the Nineteenth Century, child and adult offenders were treated alike although intermittent steps were taken towards their separate confinement. It was not until the turn of the century that modern concepts
really began to take form; they embodied the upward movement in the child's age of criminal responsibility, the extended recognition of society's obligation as parens patriae to care for delinquent children, and the creation of independent juvenile courts. See Elliott, Conflicting Penal Theories in Statutory Criminal Law 32 (1931); Sussman, Juvenile Delinquency 12 (1950); Young, Social Treatment in Probation and Delinquency (2 d ed. 1952), 48.
The first juvenile court in this country was established in Cook County, Illinois, by an 1899 act which provided that the child offender was to be considered a ward of the state under control of the juvenile court; proceedings were there to be conducted informally with rehabilitative supervision rather than retributive punishment in mind, and without public indictment, trial by jury and other incidents of criminal causes. Thereafter the other states adopted legislation which was comparable though specific provisions varied. Attacks on the legislation based on the absence of indictment, trial by jury and the other constitutional guarantees applicable to criminal proceedings were quickly rejected. See Commonwealth v. Fisher, 213 Pa. 48, 62 A. 198 (Sup. Ct. 1905); Lindsay v. Lindsay, 257 Ill. 328, 100 N.E. 892, 908 A., N.S., 45 L.R. (Sup. Ct. 1913); People v. Lewis, 260 N.Y. 171, 183 N.E. 353, 86 A.L.R. 1001 (Ct. App. 1932), certiorari denied, 289 U.S. 709, 53 S. Ct. 786, 77 L. Ed. 1464 (1933); Petition of Morin, 95 N.H. 518, 68 A. 2 d 668 (Sup. Ct. 1949). Cf. Mack, The Juvenile Court, 23 Harv. L. Rev. 104, 109 (1909). In the Fisher case [213 Pa. 48, 62 A. 200] the Supreme Court of Pennsylvania pointed out that the juvenile court proceeding is not "the trial of a child charged with a crime, but is mercifully to save it from such an ordeal, with the prison or penitentiary in its wake, if the child's own good and the best interests of the state justify such salvation." In the Lindsay case [257 Ill. 328, 100 N.E. 894] the Supreme Court of Illinois noted that the "prerogative of the state, arising out of its power and duty, as parens patriae, to protect the interest of infants, has always been exercised by courts of chancery" and has not
been questioned for generations. In the Lewis case [269 N.Y. 171, 183 N.E. 354] the New York Court of Appeals stated that there is no doubt about the power of the legislature "to say that an act done by a child shall not be a crime." And in the recent Morin case [95 N.H. 518, 68 A. 2 d 670] the Supreme Court of New Hampshire, in rejecting an attack on its statute relating to delinquent children, said:
"We think it sufficiently plain that the act in question is designed to permit the exercise of the powers of the state as ' parens patriae,' for the purpose of rehabilitating minor children, and not of punishing them for the commission of a crime. 'It is generally held that the purpose of such statutes is not penal, but protective. It is not that the child shall be punished for breach of a law or regulation, but that he shall have a better chance to become a worthy citizen.' State v. Lefebvre, 91 N.H. 382, 384, 20 A. 2 d 185, 187. See also, State v. Burt, 75 N.H. 64, 66, 71 A. 30, Ann. Cas. 1912A, 232. Similar statutes have been universally upheld over objections based upon constitutional grounds. Cinque v. Boyd, 99 Conn. 70, 121 A. 678; People v. Lewis, 260 N.Y. 171, 183 N.E. 353, 86 A.L.R. 1001, certiorari denied 289 U.S. 709, 53 S. Ct. 786, 77 L. Ed. 1464; Commonwealth v. Fisher, 213 Pa. 48, 62 A. 198, 5 Ann. Cas. 92; Ex parte Januszewski, C.C., 196 F. 123; Lindsay v. Lindsay, 257 Ill. 328, 100 N.E. 892, 45 L.R.A., N.S. 908, Ann. Cas. 1914A, 1222; Wissenburg v. Bradley, 209 Iowa 813, 229 N.W. 205, 67 A.L.R. 1075; In re Gomez, 113 Vt. 224, 32 A. 2 d 138. See also Thomas v. United States, 74 App. D.C. 167, 121 F.2d 905, 907; annotations 60 A.L.R. 1342; 67 A.L.R. 1082."
See also the oft-quoted case of Cinque v. Boyd, 99 Conn. 70, 121 A. 678 (Sup. Ct. Err. 1923), where the court sustained the Connecticut act establishing juvenile courts and cited supporting decisions in Arkansas, California, Florida, Idaho, Illinois, Indiana, Kentucky, Louisiana, Maryland, Massachusetts, North Carolina, Ohio, Oregon, Pennsylvania, Tennessee, Utah and Wisconsin. Cf. Ex parte Newkosky, 94 N.J.L. 314, 315 (Sup. Ct. 1920); In re Olcott, 141 N.J. Eq. 8, 9 (Ch. 1947).
During colonial days and the early Nineteenth Century, our State dealt with child and adult offenders in identical fashion. See Justice and the Child in New Jersey, Report of the New Jersey Juvenile Delinquency Commission, 35
(1939). In 1850 legislative steps were first taken towards the separate confinement of children (L. 1850, p. 125; L. 1852, p. 476), although it was not until 1867 that the State Reform School for Juvenile Delinquents at Jamesburg was opened. Shortly thereafter the State Industrial School for Girls at Trenton was established. Finally there was legislative recognition that children do not have that degree of intellectual and emotional development which should subject them to adult responsibility and that child and adult offenders should therefore be differentiated before trial rather than after conviction. In 1903 county courts for juvenile offenders, consisting of the judges of the Courts of Common Pleas, were created. L. 1903, c. 219. In 1912 courts manned by special juvenile court judges were set up in first class counties. L. 1912, c. 353. In 1928 the Juvenile and Probation Study Commission, headed by Vice-Chancellor Bentley, recommended the adoption of new legislation based on the Standard Juvenile Court Act which had been prepared for the National Probation Association by a committee of judges from various states; pursuant thereto a comprehensive statutory revision was adopted in 1929 establishing juvenile and domestic relations courts and defining their jurisdiction over children under 16 years. L. 1929, c. 157; R.S. 9:18-1 et seq. Although the 1903 and 1912 acts had expressly excluded the crimes of murder and manslaughter from juvenile court jurisdiction, the 1929 revision contained no comparable exclusion.
In In re Daniecki, by Ratner, 117 N.J. Eq. 527 (Ch. 1935), affirmed 119 N.J. Eq. 359 (E. & A. 1936), Vice-Chancellor Backes had occasion to deal with the issue of whether a 15-year-old boy, charged with murder, was triable in the same manner as an adult in the Court of Oyer and Terminer. The vice-chancellor held that he was, expressing the sweeping view that the Legislature had no power "to vest jurisdiction in the juvenile court to try the crime of murder (or any other indictable offense) without a jury." He did not consider any of the many cases to the contrary throughout the states and if his view had ultimately prevailed it would have struck a mortal blow to the juvenile court
movement in our State. Fortunately, it was later rejected in State v. Goldberg, 124 N.J.L. 272 (Sup. Ct. 1940), affirmed 125 N.J.L. 501 (E. & A. 1940), where the court, while recognizing that assault with intent to kill was indictable at common law (cf. State v. Maier, 13 N.J. 235, 277 (1953)), held that, when committed by a 15-year-old, it was cognizable exclusively in the juvenile court. In the course of his opinion Justice Case noted that the goal of saving "erring children to their own better selves and to orderly, law-abiding society, is beyond criticism" and that juvenile court proceedings are not "by way of punishment but by way of reformation, education and parental care, intended to save children from the consequences of wrongful conduct which in an older person would merit indictment, conviction and punishment, and are in the nature of ascertaining what the conduct of a child under sixteen years has been and whether restraint and care from the public authorities should in larger degree be substituted for that which the child would ordinarily receive from its parents." In the recent case of In re Lewis, 11 N.J. 217, 224 (1953), Justice Brennan, in an opinion delivered for the entire court, similarly pointed out "that the statutory policy for the treatment of juvenile offenders is directed to their rehabilitation for useful citizenship through reformation and education and not to their punishment, even when the offense underlying the adjudication of juvenile delinquency is of a kind which when committed by an older person would merit indictment, conviction and punishment."
Immediately after Vice-Chancellor Backes had rendered his decision in the Daniecki case, holding that the 15-year-old boy before him was triable for murder in the same manner as an adult, the Legislature took affirmative steps to obviate its effects. It provided in L. 1935, c. 285, that a person under the age of 16 shall be deemed incapable of committing a crime under the common law or statute law of this State; and in L. 1935, c. 284, in defining delinquency cognizable exclusively in the juvenile court, it included conduct which, if committed by any one 16 or over, would constitute a
felony, high misdemeanor, misdemeanor or other offense. The statutory language was unmistakable in design; it appropriately embodied the clear legislative wishes as expressed in the following statements by Senator Wolber (later Judge), who was the introducer of S. 330 and S. 331 which later became L. 1935, cc. 284, 285 (Board of National Missions by Presbyterian Church in the United States v. Neeld, 9 N.J. 349, 358 (1953)):
"The purpose of the two bills is to vest exclusive jurisdiction in juvenile and domestic relations courts over all children who, while under the age of sixteen years, commit any offense which would constitute crime under the law as it now stands.
A recent decision of the New Jersey Court of Chancery declares the existing provisions having the same purpose, unconstitutional because they deprive the defendant of the right to indictment and jury trial. These bills eliminate the objection by providing that the juvenile delinquency does not constitute crime and the penalties for crime cannot be imposed.
The purpose is to effectuate the social policy already expressed in the juvenile and domestic relations court law of confining the handling of juvenile delinquents to specialists in the field. These bills merely correct a possible technical defect in the existing act, pointed to by the Chancery decision. This act was drawn by the New Jersey Crime Commission pursuant to a resolution adopted by the New Jersey State Conference on Crime."
In In re Mei, 122 N.J. Eq. 125 (E. & A. 1937), the question was again raised as to whether a 15-year-old was triable for murder in the same manner as an adult; the court held that he was notwithstanding the express terms of L. 1935, cc. 284, 285. It did not suggest that the Legislature intended to exclude murder from its comprehensive enactments; nor did it adopt the sweeping view of unconstitutionality expressed in the Daniecki case and later rejected in the Goldberg case. Instead, it rested on the unprecedented ground that since the charge of murder is "so horrible in fact and in the contemplation of society" it must remain "a crime within the purview of the Constitution, whatever name and whatever treatment may be appended to it by the Legislature." This ground would be equally applicable to cases involving children of very tender age, and the records at State Prison
disclose that as late as 1944 it was applied in Camden County to a youngster of 13 who was tried, convicted and sentenced to life imprisonment for a murder committed when he was 12. See also State v. Smigelski, 137 N.J.L. 149 (Sup. Ct. 1948), appeal dismissed, 1 N.J. 31 (1948). Viewed strictly as a legal ground it has no supporting basis whatever since the Constitution makes no pertinent mention of murder and the guarantees, when applicable, govern murder and other indictable common law offenses with like force. Viewed strictly as an emotional ground it concededly may not be given any controlling effect.
In approximately half the states the jurisdiction of the juvenile court over children under 16 is exclusive, even where the offense would constitute murder if committed by an adult. See Juvenile Delinquency, 261 Annals 129 (1949); United Nations Comparative Survey on Juvenile Delinquency 26 (1952). The Standard Juvenile Court Act as revised in 1949 likewise vests exclusive jurisdiction in the juvenile court over all children under 16. It also provides for jurisdiction over children from 16 to 18 but states that if the child is 16 or over and is charged "with an offense which would be a felony if committed by an adult" the juvenile court may, in its discretion, certify the child for criminal proceedings. To remove any doubts, it expressly directs that "no child under sixteen years of age shall be so certified." Judicial opinions sustaining such legislation are now legion and the Mei decision stands alone in its notion that a child of seven or over, charged with murder, must be tried in the same manner as an adult regardless of what the Legislature says on the subject. Although the decision is devoid of supporting reason and authority, the suggestion is advanced that since it was rendered many years ago it should be permitted to stand until altered by the Legislature. This approach might have some merit if the Mei decision turned on a matter of statutory construction, but the fact is that the court there asserted an absence of constitutional power which no amount of legislation could supply. See Snyder v. State, 189 Md. 167, 55 A. 2 d 485, 487 (Sup. Ct. 1947). In any
event, the pertinent legislative enactments after the Mei case clearly reaffirm the plain statutory purpose to vest in the juvenile court, exclusive jurisdiction over children under 16 regardless of the severity of their offenses. See L. 1943, c. 97; L. 1946, c. 77; L. 1948, c. 284. In 1946 the Legislature, in dealing with juvenile court jurisdiction over persons between the ages of 16 and 18, expressly stated that the juvenile court may refer the matter to the prosecutor for criminal trial where the offense was of a "heinous nature." L. 1946, c. 77; N.J.S. 2 A:4-15. See State v. Vaszorich, 13 N.J. 99, 110 (1953). No comparable provision was ever adopted with respect to children under 16, thus evidencing the legislative purpose of preserving the exclusive jurisdiction of the juvenile court in such instances. See R.R. 6:9-7. When our statutes relating to civil and criminal justice were recently revised, the Legislature re-enacted its comprehensive declarations that a person under the age of 16 shall be deemed incapable of committing a crime (N.J.S. 2 A:85-4) and that juvenile delinquency shall include any act which, if committed by an adult, would constitute a felony, high misdemeanor, misdemeanor or other offense. N.J.S. 2 A:4-14. And at the same time it reasserted the broad powers of the juvenile court, including authority for extended institutional commitment of offenders in appropriate instances. N.J.S. 2 A:4-37. In Re Lewis, supra, this authority was invoked to sustain a reformatory commitment of a juvenile who had wantonly driven an automobile killing a pedestrian.
Until recently the legislative policy in our neighboring state of New York was to exclude designated crimes such as murder from the jurisdiction of the juvenile court. Thus its statute [ McK. Consol. Laws N.Y. c. 40, Penal Law, § 2186], had provided that where a child under 16 committed an offense which would be "a crime not punishable by death or life imprisonment" if committed by an adult, he was not to be deemed guilty of any crime but was to be dealt with as a juvenile offender. Notwithstanding the express exclusionary language, the New York Court of Appeals held that a person under 16 who was charged, not with premeditated
murder, but with participating in a robbery which resulted in a killing, was to be treated as a juvenile offender. See People v. Roper, 259 N.Y. 170, 181 N.E. 88 (1932), reargument denied, 259 N.Y. 635, 182 N.E. 213 (1932); People v. Porter, 54 N.Y.S. 2 d 3, 5 (Cty. Ct. 1945). As expressed in the Porter case, "although an adult may be convicted of first degree murder on proof that a killing occurs in the course of a felony upon which he is engaged, a 15-year-old youth may not be so adjudged, unless there is proof that he intended to kill." In the Mei case the child was accused of having committed a premeditated murder. In the case before us the 15-year-old Michael Monahan is not accused of having committed premeditated murder or any act with intent to kill; he is charged with having participated in a robbery with his father during which his father killed two persons. Under the statutory provisions and policy sustained by the Court of Errors and Appeals in the Goldberg case he is not triable as an adult for the robbery which he committed, yet the State contends that he is triable as an adult for the killing which he did not commit. If, as the statute directs, he is to be deemed legally incapable of robbery, it is difficult to see how he can be tried for murder during a robbery in the course of which another killed.
The problems presented by juvenile offenders are admittedly most serious in nature and are rightly receiving intensive study by legislative and administrative agencies at both federal and state levels. Our national hopes and destinies rest with our children and, fortunately, they are born both free and with promise for good. If along the way their freedom is lost and their goodness is not realized, society itself may be largely to blame. See John Edgar Hoover, Juvenile Delinquency, 4 Syracuse L. Rev. 179, 184 (1953):
"Criminal behavior is learned behavior. The child and the adolescent are impressionable, and their active minds develop codes of morality no higher than those to which they are exposed. The environment which the adult community provides its growing children is the most important factor underlying the behavior patterns cultivated by the normal child."
Centuries of history indicate that the pathway lies not in unrelenting and vengeful punishment, but in persistently seeking and uprooting the causes of juvenile delinquency and in widening and strengthening the reformative process through socially enlightened movements. Cf. A.L.I. Draft, Youth Correction Authority Act, § 16 (1940). Amongst the states, New Jersey has long been in the forefront in its recognition and development of this pathway; that it intends to retain its position is well evidenced by recent activities at the New Jersey State Diagnostic Center and the Highfields Experimental Treatment Project. See Henry, The Right to be Good, The Welfare Reporter (Dec. 1953), p. 1; Life Magazine, Helping Bad Boys, A Plan Pays off for New Jersey (March 15, 1954), pp. 24, 97.
There remain, nevertheless, strongly conflicting opinions as to how juveniles should be dealt with in cases involving homicide and other heinous misconduct. Some simply content themselves with expressions which couple their natural outrage and lack of sympathy for the juvenile court movement; they fail to suggest any alternative except, perhaps, the return to the barbarous days when eight- and ten-year-old boys and a 13-year-old girl were tried and executed for arson and murder. Others take the view that although the juvenile court movement is soundly based and should be strengthened, it should nevertheless be confined to non-heinous offenses, at least when older children are concerned; in other words, errant children should receive supervision and correction but only so long as they have not erred too greatly. Still others, however, urge both the strengthening and widening of the juvenile court movement, pointing out that the grossness of the child's misconduct intensifies rather than lessens the need for corrective supervision under the jurisdiction of a specialist judge, empowered to protect fully both the interests of the child and the public at large. In any event, the determination as to what is the wise and acceptable approach from society's viewpoint clearly rests with the other branches of government. Matters of statutory policy are
the exclusive concern of the legislative and executive branches which are fully accountable to the electorate acting at the polls; and statutory enactments may not properly be nullified in whole or in part simply because the judicial branch thinks them unwise. It is well that we ever remind ourselves that in our democracy the executive and legislative branches of government are the "ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts." Holmes, J., in Missouri, Kansas, & Texas Ry. Co. of Texas v. May, 194 U.S. 267, 270, 24 S. Ct. 638, 639, 48 L. Ed. 971, 973 (1904).
A majority of the court is satisfied that our present legislation lawfully vests exclusive jurisdiction in the juvenile court over misconduct by children under 16, including misconduct which would constitute murder or other heinous crime if committed by an adult. Accordingly, the order entered below is set aside and the matter is remanded to the Juvenile and Domestic Relations Court of Union County for further proceedings in accordance with the governing statutes and rules of court.
The Legislature in clear and indubitable terms admitting of no doubt of the purpose has decreed, as a prime and compelling measure of social policy, that a child under the age of 16 shall be deemed incapable of committing a crime, any and all offenses entailing criminal consequences under the common law or the statute law of this State when perpetrated by an adult, irrespective of the gravity of the misconduct, whether a capital or other heinous offense or any of the lesser evil deeds comprised within the category of crime, but rather that such misconduct shall be treated as "juvenile delinquency" when done by a child under 16 years subjecting the offender to protective custody, guidance and correctional treatment; and I, too, entertain the view that such an ordinance is within the legislative competency if it is in fact that and not in reality a punitive and criminal measure under a new and euphemistic label and a procedure that disregards the constitutional safeguards
against arbitrary action in restraint of individual liberty, more especially the presentment process and the right of trial by jury.
The question is basically one of constitutional power and statutory construction, to be considered in the context of criminal responsibility and its essential nature.
A child is not criminally responsible at common law for his acts or omissions if he is of such tender years as to be incapable of distinguishing between right and wrong, and of understanding the nature of the particular act. At common law (1) under the age of seven years the presumption of incapacity is conclusive; (2) between the ages of seven and 14 years there is a rebuttable presumption of incapacity; and (3) above the age of 14 years there is a rebuttable presumption of capacity.
With some exceptions, a child is accountable for his torts in a civil action to the same degree as in an adult, for the object is to redress the personal injury by compensation, and not to punish the child, and so his mental capacity is generally immaterial. But when it is proposed to hold a child amenable to the criminal law, the mens rea is of the essence. At common law, a crime is a combination of a criminal act and a criminal intent. The maxim is actus non facit reum, nisi mens sit rea. A wrongful act and a wrongful intent must concur. Reg. v. Tolson, 23 Q.D. 168 (1889); Levet's Case, Cro. Car. 538 (1793); 1 Hale P.C. 474 (1778); Commonwealth v. Mixer, 207 Mass. 141, 93 N.E. 249, 31 L.R.A., N.S., 467 (Sup. Jud. Ct. 1910); State v. Labato, 7 N.J. 137 (1951); State v. Woodward, 99 N.J.L. 49 (Sup. Ct. 1923). This was early deemed a principle of natural justice. Fowler v. Padgett, 7 T.R. 509, 514 (1798). It is a rule of justice discernible by right reason. Lord Abiger said, in Rex v. Allday, 8 Car. and P. 136 (1837), 173 Eng. Rep. 431: "It is a ...