Com. v. Brasher

• Decision Date: 07 June 1971
• Citation: 359 Mass. 550,270 N.E.2d 389
• Parties: COMMONWEALTH v. Dianne BRASHER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 389

270 N.E.2d 389

359 Mass. 550

COMMONWEALTH v.Dianne BRASHER.

Supreme Judicial Court of Massachusetts, Bristol.

Argued Dec. 7, 1970.

Decided June 7, 1971.

Reuben Goodman, Boston (Harriet A. Verbin, Boston, and Guy Volterra, New Bedford, with him), for defendant.

Peter B. Gay, Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and SPALDING, CUTTER, REARDON and QUIRICO, JJ.

QUIRICO, Justice.

On May 3, 1969, a complaint issued from a District Court alleging that the defendant'being between seven and seventeen years of age, is a delinquent child in that during the one month last past before the making of this complaint, at Fall River * * * (she) was a stubborn child and did refuse to submit to the lawful and reasonable commands of * * * Michael T. Walsh whose commands said Dianne Brasher was bound to obey.(Violation of Chapter 272, sec. 53, General Laws).'¹The defendant was tried in the District Court and was adjudged a delinquent child.She appealed to the Superior Court where she was again tried and adjudged a delinquent child.On July 2, 1969, the court ordered the defendant committed to the custody of the Youth Service Board(now the Department of Youth Services), suspended execution of the order for three years, and placed her on probation on condition that she be placed in the home of a named individual at Lawell.SeeG.L. c. 119, §§ 52--59, inclusive, as amended.

The case is before us on two principal issues raised by the defendant's bill of exceptions.The first issue is whether the statutes under which the defendant is being prosecuted are constitutional.The defendant contends that they are not for the reasons that (a)they deal with a subject matter which is beyond the State's police power, and (b)they are unconstitutionally vague and indefinite.The second issue is whether the evidence presented at the trial is sufficient to warrant a conviction, assuming the constitutionality of the statutes.

The constitutional issue raised by the defendant is directed at the part of G.L. c. 272, § 53, which provides punishment for stubborn children, and for this reason it will be helpful to review the history and development of this part of the statute.This provision appears to have originated in an act passed by the House of Deputies of the Colony of the Massachusetts Bay in New England on August 22, 1654, stating that 'it appeares by too much experience that divers children & servants doe behave themselves too disrespectively, disobediently, & disorderly towards their parents, masters, & gouvernors, to the disturbance of families, & discouragement of such parents & gouvernors,' and providing 'corporall punishment by whiping, or otherwise,' for such offenders.Mass. Bay Records, Vol. III (1644--1657) 355. Mass.Col.Laws (1887 ed.) 27.

The next statutory reference to stubborn children is in Prov.St.1699--1700, c. 8, §§ 2--6, permitting courts to commit various offenders, including stubborn children and other persons now included in G.L. c. 272, § 53, to houses of correction.

When the Constitution of Massachusetts was adopted in 1780, it then provided, and still provides, in Part II, c. 6, art. 6, that 'All the laws which have heretofore been adopted, used and approved in the Province, Colony or State of Massachusetts, Bay, and usually practised on in the courts of law, shall still remain and be in full force, until altered or repealed by the Legislature; such parts only excepted as are repugnant to the rights and liberties contained in this Constitution.'By virtue of this provision, the part of the Province laws relating to the punishment of stubborn children and certain other offenders became a part of the law of this Commonwealth.Commonwealth v. Knowlton, 2 Mass. 530, 534--535.Sackett v. Sackett, 8 Pick, 309, 316--317.Phillips v. Blatchford, 137 Mass. 510, 513.Crocker v. Justices of Superior Court, 208 Mass. 162, 166--167, 171, 94 N.E. 369.Over the years the section of the statute which included the punishment of stubborn children was subjected to many amendments and it was included in a number of periodic consolidations and rearrangements of our statutes.Despite this, the provision relating to stubborn children as now contained in G.L. c. 272, § 53, has remained basically the same.

Before discussing this particular case, it is appropriate to note that it is but the latest in a recent series of cases involving attacks, on constitutional grounds, on various provisions of G.L. c. 272, § 53.In Alegata v. Commonwealth, 353 Mass. 287, 302--304, 231 N.E.2d 201, we upheld the provision for punishment of disorderly persons.In Thomes v. Commonwealth, 355 Mass. 203, 243 N.E.2d 821, we upheld the provision for punishment of common night walkers.In Commonwealth v. Jarrett, Mass., 269 N.E.2d 657, ^a we upheld the provision for punishment of disturbers of the peace.In Joyner v. Commonwealth, Mass., 260 N.E.2d 664, 666, ^bwe held that the words 'stubborn children' as used in § 53 did not include 'those who have attained their eighteenth birthday,' and we therefore were not required to pass on the constitutional attack on the statute.On the case now before us, the person raising the constitutional question is a child born on July 7, 1954.We must therefore now consider and decide the constitutional question which we did not reach in the Joyner case.In doing so we shall deal separately with the several grounds on which the defendant's claim of unconstitutionality is based.

1.The principal ground upon which the defendant relies is that G.L. c. 272, § 53, in so far as it deals with stubborn children, is so vague and indefinite that it 'leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case,' and therefore violates the due process clause of the Fourteenth Amendment to the Constitution of the United States.The basic constitutional requirements in this regard were considered and discussed, with full citation of authorities, in our recent Alegata, Thomes and Jarrett cases cited above, and it is unnecessary to repeat the discussion here.Applying those constitutional requirements to the part of § 53 which is before us, we think that it is constitutionally adequate.Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322.United States v. Wurzbach, 280 U.S. 396, 399, 50 S.Ct. 167, 74 L.Ed. 508.Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 83 L.Ed. 888.United States v. Petrillo, 332 U.S. 1, 7--8, 67 S.Ct. 1538, 91 L.Ed. 1877.Jordan v. De George, 341 U.S. 223, 231--232, 71 S.Ct. 703, 95 L.Ed. 886.

We note, as we did in the Jarrett case, that § 53 does not purport to create or to define new crimes, but rather it prescribes the penalties for persons committing acts theretofore long recognized by our law as amounting to criminal offences.Therefore, the elements of the crime which is identified by the use of the descriptive words 'stubborn children' are not be determined solely on the basis of the inclusion of those words in § 53.We must start by considering the language of the 1654 Colonial law which said that it was 'for the ready prevention' of the evil of children who behave themselves 'to disrespectively, disobediently, & disorderly towards their parents, masters & Gouvernors.'Mass.Bay Records, Vol. III (1644--1657) 355.Mass Col.Laws (1887 ed.) 27.All later enactments, starting with Prov.St.1699--1700, c. 8, §§ 2--6, limited themselves to prescribing the punishment for such acts and identified the offenders as 'stubborn servants or children,' and more recently as 'stubborn children.'

We also note, as we did in the Thomes case, the permitted forms of complaints and indictments which are set forth in G.L. c. 277, § 79.They were first incorporated into our general statutes by St.1899, c. 409, sometimes referred to as the 'actfor the simplification of criminal pleading.'Commonwealth v. Diamond, 248 Mass. 511, 516, 143 N.E. 503, 504.As to stubborn children the statutory form is: 'That A.B., a minor, during the three months next before the making of this complaint, was a stubborn child, and stubbornly refused to submit to the lawful and reasonable commands of C.D., whose commands said A.B. was bound to obey.'

The elements of the crime which was established by the Colonial law of 1654 and which is now simply identified by use of the words 'stubborn children' in G.L. c. 272, § 53, are ascertainable upon examination and consideration of the entire series of statutes on the subject.The 1654 statute made criminal the disobedience by children and servants toward their parents, masters, and governors.After 245 years of experience with that statute and its successor statutes dealing with stubborn children, the Legislature in 1899 enacted A simplified form of complaint for this crime and it has now been in use for about seventy-two years.

The elements which the Commonwealth is required to prove beyond a reasonable doubt in order to constitute the crime commonly identified by use of the words 'stubborn children' are the following: (a) that a person having authority to give a child under the age of eighteen lawful and reasonable commands which such child is bound to obey gave such a command to a child; (b) that the child refused to submit to the command, and the refusal was stubborn in the sense that it was wilful, obstinate and persistent for a period of time.The person giving the command is usually one of the child's parents, but it may be another person, as it was in this case.The defendant does not question that such other person, on the particular facts of this case, occupied such a position toward the defendant that he was authorized to give her lawful and reasonable commands which she was bound to obey.Single, infrequent or isolated refusals to obey such commands do not constitute a crime.Neither do manifestations of stubbornness which do not amount to...