D'Urbano v. Com.

• Decision Date: 12 February 1963
• Citation: 345 Mass. 466,187 N.E.2d 831
• Parties: Joseph J. D'URBANO v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 831

187 N.E.2d 831

345 Mass. 466

Joseph J. D'URBANO v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 2, 1962.

Decided Feb. 12, 1963.

Monroe L. Inker, Boston, for petitioner.

James W. Bailey, Asst. Atty. Gen., for the Commonwealth.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER, KIRK, and SPIEGEL, JJ.

WHITTEMORE, Justice.

This petition for a writ of error to reverse a judgment of the Superior Court on an indictment for murder in the second degree, dated December 11, 1959, was reported by a single justice without decision on the pleadings, the return, agreed copies of records of the District Court of Chelsea, and a statement of facts by the judge of that court.

The issues concern the rights under the juvenile procedures of G.L. c. 119, §§ 52-83, of a person twenty-one years of age indicted for an offence committed when he was sixteen years of age, where the proceedings which had been instituted promptly after the crime in 1954 had failed to conform to the requirements of the statute as construed in Metcalf v. Commonwealth, 338 Mass. 648, 156 N.E.2d 649. In view of our holding, hereinafter stated, that, because 'D'Urbano was an adult at the time of the indictment in 1959, the juvenile procedures were inapplicable, there is no occasion to review the pre-indictment District Court proceedings.

On December 8, 1954, the petitioner D'Urbano, then aged sixteen years and two months, in the course of armed robbery, killed Harry Abelowitz of Revere. On December 20, 1954, the District Court of Chelsea declined jurisdiction. ¹ On January 12, 1955, the grand jury indicted D'Urbano for first degree murder and lesser offences. On May 5, 1955, a judge of the Superior Court accepted a plea of guilty to murder in the second degree and sentenced D'Urbano to life imprisonment. On March 9, 1959, in Metcalf v. Commonwealth, 338 Mass. 648, 156 N.E.2d 649, we held that, upon an indictment in 1956 for murder in the first degree against a child who was under fourteen at the time he committed the offence, an accepted plea of guilty of murder in the second degree established that the child was guilty only of conduct constituting delinquency within G.L. c. 119, §§ 52-63. On May 12, 1959, D'Urbano filed a writ of error in the county court, assigning as error that he was under seventeen years of age when the crimes charged were committed and was therefore, following the acceptance of his plea, subject to the special requirements of G.L. c. 119, §§ 61, and 74.

On November 12, 1959, a single justice, citing the Metcalf decision, reversed the judgment of the Superior Court and ordered that further proceedings be instituted. On November 20, 1959, a judge of the Superior Court revoked D'Urbano's life sentence. On the same day D'Urbano was complained of as a delinquent child in the District Court of Chelsea. That complaint was dismissed under G.L. c. 119, § 61, ² on the ground that 'because of the boy's age, that fact that he had been incarcerated at Walpole and had associated with mature and hardened criminals, it would not be in his best interests or in the interests of the Commonwealth to commit him to the custody of the youth service board.' Thereupon, D'Urbano was arraigned in the District Court and bound over to the Superior Court.

On December 11, 1959, the grand jury returned the indictment for second degree murder, and on January 28, 1960, a judge of the Superior Court accepted 'D'Urbano's plea of guilty to manslaughter and sentenced him to the Massachusetts Correctional Institution at Walpole for a term of eighteen to twenty years. On January 28, 1960, also, the 1954 indictment for murder in the first degree was dismissed. D'Urbano filed this petition for a writ of error on December 20, 1960.

In the proceedings in the Superior Court in 1955 and in 1959-1960, and in the District Court in 1969, D'Urbano was represented by counsel.

1. We agree with D'Urbano's contention that G.L. c. 119 does not give the District Court power to commit an adult to the Youth Service Board or indeed to exercise jurisdiction over an adult in its juvenile session.

The statute is concerned exclusively with children. Section 53 declares the purpose that '[s]ections fifty-two to sixty-three, inclusive, shall be liberally construed so that the care, custody and discipline of the children brought before the court shall approximate as nearly as possible that which they should receive from their parents, and that, as far as practicable, they shall be treated, not as criminals, but as children in need of aid, encouragement and guidance. Proceedings against children under said sections shall not be deemed criminal proceedings.' The statute (§§ 52-83) refers repeatedly and, with three inconsequential exceptions, ³ exclusively, to 'child' or 'children.' See also G.L. c. 120, § 16, which requires the Youth Service Board to discharge every person committed as a wayward or delinquent child on his twenty-first birthday ⁴ unless special proceedings are had because the person is deemed dangerous. See c. 120, §§ 17-20.

The statute, primarily, prescribes procedures in juvenile sessions for children under seventeen years of age. Section 52 defines a 'delinquent child' as 'a child between seven and seventeen who violates any city ordinance or town by-law or commits [any offence against a law of the commonwealth].' ⁵ Section 73 provides: 'In criminal proceedings under the following sections, district courts * * * may commit children under seventeen years of age to the custody of the youth service board.'

Limited jurisdiction over juveniles who have passed their seventeenth birthday is provided in § 72, but it remains expressly only jurisdiction in respect of 'children.' There is no provision which in terms gives jurisdiction over a child apprehended when under seventeen and not brought to trial until after eighteen. There are indications that jurisdiction ends when the child attains eighteen but it is not necessary in this case to make that construction.

The first sentence of § 72 provides: 'Courts may continue to exercise jurisdiction in their juvenile sessions over children who become seventeen years of age or who pass the age limit for bringing the kind of complaint or proceeding before the court, pending adjudication on their cases, or during continuances or probation, or after their cases have been placed on file, or where a child between the ages of sixteen and seventeen commits an offence and is not apprehended until after reaching the age of seventeen the court may deal with said child in the same manner as if he or she had not reached the age of seventeen, and all provisions and rights applicable to a child under seventeen shall apply to said child.' ⁶ But this extension is carefully limited in these words: 'Nothing herein shall authorize the commitment of any child over seventeen years of age to the youth service board, or give any court any power or authority over said children after they become eighteen years of age, except that, on the revocation of the suspension of the execution of a sentence or order of commitment, such sentence or order of commitment may be executed, notwithstanding that the child sentenced or ordered committed has passed the age limit for commitment to the youth service board to which he was sentenced or ordered committed, or when a child between the ages of sixteen and seventeen commits an offence and is not apprehended until after reaching the age of seventeen the court may commit such child to the youth service board or to any oher institution to which he might be committed for such violation of law' (emphasis supplied). ⁷

The Supreme Court of New Jersey has held, under a statute in many respects like ours, that an adult who, as a child, had been illegally denied juvenile procedures is to be dealt with by the juvenile court. In the Matter of Smigelski, 30 N.J. 513, 520-523, 154 A.2d 1, and cases cited. But see Application of Johnson, 178 F.Supp. 155 (D.C.N.J.), for an asserted constitutional limitation in respect of an adult of twenty-seven years. We do not find in our statute the implications on which the New Jersey decision is based, nor, on our construction, a constitutional issue.

We recognize that this construction means that there is no remedial or punitive procedure available for a boy who commits an offence at thirteen, and is not apprehended or validly proceeded against until after he has passed the age at which he may be dealt with as a delinquent. See Mecalf v. Commonwealth, 338 Mass. 648, 156 N.E.2d 649. This gap in the statute and other uncertainties therein are, however, properly for legislative consideration. The question did not arise in the Metcalf case, Metcalf having been under seventeen when it was decided.

2. The absence of valid juvenile procedures did not deprive the Superior Court of jurisdiction.

General Laws c. 119, § 74, provides: 'Criminal proceedings shall not be begun against any child between fourteen and seventeen years of age [except for offences punishable by death ⁸, unless proceedings against him as a delinquent child have been begun and dismissed as required by section sixty-one.' This section is in terms applicable only if the defendant is a child. Nothing in § 72 extends § 74 to proceedings against an adult. No implication so extends it. The statute does not intend, for example, that a person who committed murder at sixteen and is apprehended at twenty-three should be beyond the reach of criminal statutes.

3. D'Urbano contends that the statutory construction adopted in Hurd v. Commonwealth, Supreme Judicial Court for Suffolk County, No. 59,193 (March 16, 1960), would require criminal proceedings in the District Court under §§ 73-83, with a finding of guilt, as a jurisdictional prerequisite to indictment in the Superior Court. But whatever the jurisdictional requirement of these sections, when applicable, § 75 shows that they are...