United States v. Tucker

Decision Date29 October 1979
Docket NumberNo. 79-30.,79-30.
Citation407 A.2d 1067
PartiesUNITED STATES, Appellant, v. Robert Warren TUCKER, Appellee.
CourtD.C. Court of Appeals

John H. E. Bayly, Jr., Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., Washington, D. C., at the time the briefs were filed, John A. Terry, and John C. Aisenbrey, Asst. U. S. Attys., Washington, D. C., were on the briefs, for appellant.

Mark A. Bayer, Washington, D. C., appointed by the court, for appellee.

Before NEWMAN, Chief Judge, and HARRIS and MACK, Associate Judges.

MACK, Associate Judge:

The United States, as a statutory appellant, seeks review of an order of the Criminal Division of the Superior Court granting appellee's motion to dismiss for lack of jurisdiction and transferring the case to the Family Division pursuant to D.C.Code 1973, § 16-2302(a).1 We affirm.

Appellee was arrested on July 4, 1978, and was charged by information with unlawful possession of a narcotic drug, hashish, in violation of D.C.Code 1973, § 33-402. Because appellee's eighteenth birthday occurred on July 5, 1978, he moved to dismiss the information asserting that at the time of the alleged commission of the offense he was a juvenile and therefore not subject to the jurisdiction of the Criminal Division, but rather to the exclusive jurisdiction of the Family Division under D.C.Code 1973, § 11-1101(13).2 The court, over the objection of the government, agreed.

The sole issue therefore is: old was appelle on the day before his eighteenth birthday?

It will come as a surprise to some that the common law rule for computing age, relied upon by the government, is that a person is deemed to have reached a given age on the day preceding the anniversary of his birth. Nichols v. Ramsel, 2 Mod. 280, 86 Eng.Rep. 1072 (K.B.1677); Herbert v. Turball, 1 Keble 590, 83 Eng.Rep. 1129 (K.B. 1663) discussed in, Annot., 5 A.L.R.2d 1143, 1145-46 (1949). The government argues that this rule must control because D.C. Code 1973, § 49-301, operates as a bar to this court's power to change the common law absent legislative enactment. That section states:

The common law, all British statutes in force in Maryland on February 27, 1801, the principles of equity and admiralty, all general Acts of Congress not locally inapplicable in the District of Columbia, and all Acts of Congress by their terms applicable to the District of Columbia and to other places under the jurisdiction of the United States, in force in the District of Columbia on March 3, 1901, shall remain in force except in so far as the same are inconsistent with, or are replaced by, some provision of the 1901 Code.

In O'Connor v. United States, D.C. App., 399 A.2d 21, 25 (1979), we stated that this section provides that all common law in force in Maryland remains in force as part of the law of the District unless repealed or modified by statute. In 1776, Maryland adopted the common law of England as it then existed. Id. However, as noted in Linkins v. Protestant Episcopal Cathedral Foundation, 87 U.S.App.D.C. 351, 354, 187 F.2d 357, 360 (1950), § 49-301 was not intended by Congress to freeze the common law at a particular date and act as a bar to the judicial function of revising and enlarging the common law. We conclude that D.C.Code 1973, § 49-301 was not intended to operate as a bar to this court's inherent power to alter or amend the common law.

Our position is buttressed by findings of the Supreme Court of Appeals of West Virginia which recently undertook an exhaustive analysis of similar state statutory and constitutional provisions and the decisions interpreting these provisions. Morningstar v. Black & Decker Manufacturing Co., W.Va., 253 S.E.2d 666 (1979). The court found that a majority of the courts confronted with this argument of "frozen law" construed their respective provisions as establishing an initial body of law on which a particular state would operate and were not intended to limit the courts in their historic role of developing the common law. Id., 253 S.E.2d at 671. We have joined that majority. See Linkins v. Protestant Episcopal Cathedral Foundation, supra.

The issue then becomes whether we should adopt as the law for this jurisdiction the common law rule or the New York rule for computing the age of a juvenile. The New York rule, relied upon by the able trial court, is set forth in People v. Stevenson, 17 N.Y.2d 682, 269 N.Y.S.2d 458, 216 N.E.2d 615 (1966), where the Court of Appeals of New York adopted the dissenting opinion of the Appellate Division holding that the birthdate, as opposed to an artificial arrangement resulting on the day before the birthdate, controlled the age of a juvenile offender (over seven and less than sixteen years). People v. Stevenson, 23 A.D.2d 472, 475-76, 262 N.Y.S.2d 238, 242-43 (1965) (Christ, J., dissenting).

We are also persuaded by the reasoning of the dissenting opinion in People v. Stevenson, supra. The rule that a person reaches his next year in age the day prior to the anniversary of his birth was an exception to the general rule of the common law for computation of time which excluded the first day and included the last. State v. Brown, 443 S.W.2d 805, 807 (Mo.1969) (en banc); Annot., 5 A.L.R. at 1143; 1 Minor's Institute 2d ed. 472 (1876). See also Super. Ct.Cr.R. 45(a); Super.Ct.Civ.R. 6(a). The exception was a fiction introduced in the law apparently because the common law took no notice of fractions of a day. See Annot., 5 A.L.R. at 1145; 1 Minor's Institute at 472. This legal fiction therefore was originally established to aid persons who would experience hardship or loss by virtue of the general rule of computation. See Erwin v. Benton, 120 Ky. 536, 87 S.W. 291 (1905) (right to vote one day before twenty-first birthday); In re Bardol's Will, 164 Misc. 907, 300 N.Y.S. 60 (1937), modified and aff'd, 253 App.Div. 498, 4 N.Y.S.2d 725, aff'd as modified, 278 N.Y. 543, 16 N.E.2d 96 (mem.) (1938) (estate of beneficiary entitled to proceeds of a trust when beneficiary died day before twenty-fifth birthday); Commonwealth v. Howe, 35 Pa.Super. 554 (1908) (defendant could not be convicted of rape with a female under the age of sixteen when the defendant had relations with her the day before her sixteenth birthday); Herbert v. Turban, supra (will made by a testator in his minority and republished the day before his twenty-first birthday is valid).

However, this common law exception was criticized as early as 1876 as being contrary to reason and common sense. See 1 Minor's Institute at 472-73. The courts which have adopted it have candidly admitted that rather than being persuaded by the soundness of its application, they have adopted it on the basis that it was so well established over a long period of time that the rule attained an independent status of its own. See Nelson v. Sandkamp, 227 Minn. 177, 34 N.W.2d 640 (1948); State v. Brown, supra at 807; State In Interest of F. W., 130 N.J.Super. 513, 327 A.2d 697 (1974). In this regard it is appropriate to quote Justice Holmes speaking in The Path of the Law, 10 Harv.L.Rev. 457, 469 (1897):

It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.

Justice Sutherland, writing for the Supreme Court in Funk v. United States, 290 U.S. 371, 383-84, 54 S.Ct. 212, 216, 78 L.Ed. 369 (1933) cited with approval the following instructive passage from Ketelsen v. Stilz, 184 Ind. 702, 707, 111 N.E. 423, 425 (1916):

"`One of its [the common law's] oldest maxims was that where the reason of a rule ceased the rule also ceased, and it logically followed that when it occurred to the courts that a particular rule had never been founded upon reason, and that no reason existed in support thereof, that rule likewise ceased, and perhaps another sprang up in its place which was based upon reason and justice as then conceived. No rule of the common law could survive the reason on which it was founded. It needed no statute to change it but abrogated itself.'"

In the absence of any reasons supported in logic, we decline to follow a rule which defies human experience by determining age on the day preceding one's birthday. Moreover, we believe that in view of the rehabilitative purposes of our juvenile justice system, D.C.Code 1973, § 16-2301(3) should be strictly construed against the prosecution and in favor of the person being proceeded against. See In re Poff, 135 F.Supp. 224, 226 (D.D.C.1955). As the Supreme Court noted in addressing the precourt reorganization predecessor of § 16-2301(3), the decision whether an accused is subject to juvenile or adult court is a vitally important one which affects not only the length of confinement but many collateral interests such as the loss of civil rights, the use of an adjudication in subsequent proceedings and disqualification for public employment. Kent v. United States, 383 U.S. 541, 556-57, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). See also United States v. Hudson, D.C.App., 404 A.2d 175 (1979). Although the District of Columbia Court Reorganization Act was passed subsequent to the decision in Kent v. United States, supra, and was intended to work a substantive contraction of juvenile court jurisdiction,3 it evinces a legislative policy of adult treatment for juveniles emphasizing the nature of the crime rather than merely the age of the accused. See D.C.Code 1973, § 16-2301(3)(A). Adoption of the New York rule in this case would be consistent with this policy4

Finally, the government argues that adoption of the New York rule for determining age will inject confusion into other areas of the District's law, including questions as to the exact time one becomes eligible to vote, legally consume intoxicants or enter into binding contractual...

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