J. D. G., In Interest of

• Decision Date: 10 September 1973
• Docket Number: No. 1,No. 57382,57382,1
• Citation: 498 S.W.2d 786
• Parties: In re Interest of J. D. G., a child under 17 Years of Age
• Court: Missouri Supreme Court

Page 786

498 S.W.2d 786

In re Interest of J. D. G., a child under 17 Years of Age.

No. 57382.

Supreme Court of Missouri, Division No. 1.

Sept. 10, 1973.

Michael P. Casey, St. Louis, for appellant.

John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.

BARDGETT, Presiding Judge.

J. D. G., a juvenile, was found to be a delinquent by the Juvenile Court of the City of St. Louis pursuant to § 211,031(1)(d), RSMo 1969, V.A.M.S. (Juvenile Code), in that he was found to have violated § 559.260, RSMo 1969, V.A.M.S. (statutory rape), and was committed to the Missouri State Training School for Boys. The juvenile appealed to this court and contends that the consensual sexual intercourse provisions of § 559.260 are not applicable to males under age 17 and that, if they are applicable to males under age 17 then it constitutes invidious discrimination on the basis of age and sex in violation of the Equal Protection Clause of the Constitution of Missouri and the U.S. Constitution Amendment XIV. This court has jurisdiction. Mo.Const. Art. V, § 3, 1945 as amended, V.A.M.S.

Pursuant to § 211.081 and in accordance with § 211.091, a petition was filed in juvenile court alleging that the appellant was within the provisions of § 211.081 and was particularly within the provision of § 211.031(1)(c) in that the appellant's behavior was injurious to his welfare and the welfare of others and § 211.031(1)(d) in that on January 21, 1971, the appellant wilfully and unlawfully assaulted the prosecutrix, a female under the age of 16 years, by unlawfully and forcibly raping her against her will contrary to § 559.260, and that the appellant cannot receive such care, guidance and control in his own home, as would be conducive to his welfare and the best interests of the state.

The appellant was represented by counsel at all stages of the proceedings and on this appeal.

The evidence at the adjudicatory hearings consisted of the testimony of the prosecutrix, two police officers who investigated the matter and medical testimony and records. The appellant did not testify or offer any evidence.

The sufficiency of the evidence is not disputed so a summary of the prosecutrix's testimony will suffice. She testified that she knew the appellant for about a month prior to January 21, 1971; that on January 21, 1971, at about 7:00 p.m., she saw him in a cafe and he suggested they look for another boy; that they left the cafe and, at the appellant's urging, they went to a vacant house; that the appellant pulled her up the steps to the second floor; that he threatened to break her jaw if she didn't have intercourse with him and that he forced her to have intercourse with him. After that she and the appellant began to get dressed when another young man came in and said it was his 'turn now'. He and two other young men forced her to have intercourse with them. She had engaged in sexual intercourse on one prior occasion but not subsequent to January 21, 1971. She was three and one-half to four months pregnant at the time of her testimony on May 10, 1971.

At the conclusion of the hearing, defense counsel filed several motions which, inter alia, requested the court to strike all allegations in the petition as to forcible rape.

The court overruled the motions but struck the word 'forcible' as being surplusage, holding that it was sufficient to find that appellant had intercourse with a female under the age of 16, under § 559.260, which includes consensual intercourse with a female who is under the age of 16 years. The court declared the appellant to be a ward of the court. A dispositional hearing was held July 12, 1971, at which time the appellant's motion for rehearing as to the adjudicatory phase of the proceedings was overruled. The appellant was found to be delinquent by statutory rape and within the provisions of the Juvenile Code, and was committed to the State Board of Training Schools to be placed at Poplar Bluff Youth Center.

The appellant's first point on this appeal is that the juvenile court erroneously construed the language 'every person' as used in § 559.260, RSMo 1969, V.A.M.S., to include persons under age 17. In other words, appellant contends that § 559.260, properly construed, does not make it a criminal offense for a male under the age of 17 to have consensual intercourse with a female under the age of 16 years. If appellant is correct, then appellant, age 15, did not commit an act (consensual intercourse with a girl under the age of 16) which was violative of any state law and therefore he did not come within the provisions of § 211.031(1)(d), and consequently the court erred in declaring appellant to be a delinquent on the basis that he committed statutory rape, § 559.260, and was within the provisions of § 211.031(1)(d), supra.

The state argues that the court declared appellant a delinquent under the provisions of § 211.031(1)(c) and (d). The briefs of the parties so state. The record, however, reflects that the court specifically found the appellant to be a delinquent by reason of committing statutory rape. The record does not reflect any finding comporting with § 211.031(1)(c), which provides that the basis for an adjudication of delinquency can be that '(t)he behavior, environment or associations of the child are injurious to his welfare or to the welfare of others.' Sec. 211.181 RSMo 1969, V.A.M.S., requires the juvenile court to '* * * make a finding of fact upon which it exercises its jurisdiction over the child * * *.' The record here contains no finding of fact under § 211.031(1)(c) either by reference to the subsection or by specific finding. The record shows that the juvenile court found the appellant 'to be delinquent by statutory rape and within the provisions of the Juvenile Code.' The terminology 'and within the provisions of the Juvenile Code' does not satisfy the requirement of § 211.181, supra, because it does not constitute a finding of fact upon which the court exercised its jurisdiction and this court cannot read into that declaration that the juvenile court found appellant to be a delinquent by reason of subsection (1)(c) of § 211.031, supra. The record does contain the requisite finding of fact under § 211.031(1)(d).

In view of the foregoing, the very recent case of In Interest of M.K., 493 S.W.2d 686 (Mo.App.1973), cited by the state is not in point. In that case the opinion shows that the juvenile court made a finding that the juvenile was delinquent under both § 211.031(1)(c) and (d). Such is not the situation in the instant case.

The court must therefore proceed to determine the question of whether § 559.260 prohibits males under the age of 17 years from engaging in the designated proscribed consensual sexual intercourse, to wit: consensual sexual intercourse with a female under the age of 16 years.

Sec. 559.260, RSMo 1969, V.A.M.S., provides:

'Rape, punishment

'Every person who shall be convicted of rape, either by carnally and unlawfully knowing any female child under the age of sixteen years, or by forcibly ravishing any woman of the age of sixteen years or upward, shall suffer death, or be punished by imprisonment in the penitentiary for not less than two years, in the discretion of the jury.'

It is evident that under § 559.260 the only age element contained in the statute with respect to consensual intercourse pertains to the female, and the statute itself does not exclude males under the age of 17. It includes them. It should be noted parenthetically, however, that the operation of § 211.071, RSMo 1969, V.A.M.S., absolutely precludes the criminal prosecution of any person under the age of 14 years.

Appellant contends that § 559.300, RSMo 1969, V.A.M.S., must be considered in relation to § 559.260 and argues that when these two statutes are considered together there emerges a statutory scheme evidencing a legislative intent that § 559.260 be applicable, with reference to consensual intercourse, only to males over the age of 17. Sec. 559.300, RSMo 1969, V.A.M.S., provides:

'Carnal knowledge of female between ages of sixteen and eighteen--penalty

'If any person over the age of seventeen years shall have carnal knowledge of any unmarried female, of previously chaste character, between the age of sixteen and eighteen years of age, he shall be deemed guilty of a felony, and upon conviction shall be punished by imprisonment in the penitentiary for a term of two years, or by a fine of not less than one hundred dollars nor more than five hundred dollars or by imprisonment in the county jail not less than one month or more than six months, or by both such fine and imprisonment, in the discretion of the court.' (Emphasis added.)

Appellant points out that when the age provisions of §§ 559.260 and 559.300 are considered together, the following result occurs. If a male of any age has consensual intercourse with a female under the age of 16, he violates § 559.260 and is subject to punishment ranging from two years' imprisonment to death. If a male age 16 has consensual intercourse with a female age 16, the male does not violate the provisions of either §§ 559.260 or 559.300 because the female is not under the age of 16 (§ 559.260) and the male is not 17 or older (§ 559.300), and therefore the act is not punishable. If the girl is age 16, 17, or 18, and the male is 17 or older, and the other elements set forth in § 559.300 are present, then the male is subject to punishment ranging from a fine to two years' imprisonment.

Appellant argues that the relief from criminal responsibility where a male age 16 has consensual intercourse with a female age 16, and the substantially lesser punishment under § 559.300 when the female is 16, 17, or 18, and the male is 17 or older, evidences such an absurd discrepancy that it simply could not have been intended by the legislature. It is argued that this resulted from legislative oversight or poor ...