358 Mass. 60

February 5, 1970 - July 1, 1970

Suffolk County


The term "children" in the words "stubborn children" in G. L. c. 272, Section 53, does not mean those who have attained their eighteenth birthday.

PETITION for a writ of error filed in the Supreme Judicial Court for the county of Suffolk on March 25, 1969.

The case was reserved and reported by Kirk, J., without decision.

A. Van C. Lanckton for the petitioner.

James O. Druker, Deputy Assistant Attorney General, for the Commonwealth.

KIRK, J. By this petition for a writ of error the petitioner seeks to have reversed a judgment of conviction in the Third District Court of Eastern Middlesex (District Court) on a complaint charging that she was "a stubborn child" in violation of G. L. c. 272, Section 53. The case came before the single justice who reserved and reported it without decision upon the pleadings, return and assignments of error.

The petition alleges the following facts which are admitted by the answer of the Commonwealth. On January 6, 1968, a complaint was filed in the District Court by one Sarah Bell

Page 61

charging, in the form prescribed by G. L. c. 277, Section 79, that "Camille E. Joyner, 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 said complaint, said Sarah Bell, whose commands said minor was bound to obey." The petitioner pleaded not guilty, and was convicted on January 22, 1968. After the filing of an initial petition for a writ of error the case was remanded to the District Court for final disposition, and on March 7, 1969, the petitioner was sentenced to ten days in the house of correction. The sentence was suspended.

The petitioner contends, first, that the "stubborn children" provision of G. L. c. 272, Section 53, as appearing in St. 1959, c. 304, Section 1, [Note 1] is unconstitutionally vague, indefinite and uncertain; second, that the sentence imposed constitutes cruel and unusual punishment; and third, that since she was over eighteen years of age at the time of the conduct complained of, she was not a "child" within the meaning of the statute.

We dispose of the case on the third ground, i.e., that the petitioner was not a "child" within the meaning of G. L. c. 272, Section 53.

The uses and definitions of the terms "child" and "children" are many and varied. See Webster's Third New International Dictionary, Unabridged, 388 (1961). 14 C. J. S., Child or Children, p. 1106. In Nelson v. Cushing, 2 Cush. 519, 533-534, the term "children" was contrasted with "youth," the latter term being characterized as "referring to and embracing young persons of somewhat more advanced age and proficiency . . .." In G. L. c. 149, Section 1, "child" is defined, for the purposes of the chapter regulating labor and industries, as "a person under eighteen.' Compare

Page 62

G. L. c. 76, Section 1; c. 175, Section 128; c. 269, Section 12A; c. 272, Section 28.

No definition of "child" or "children" is given in G. L. c. 272, Section 53, nor has that provision been judicially construed. The statutory form of complaint, G. L. c. 277, Section 79, requires an allegation that the person complained of is "a minor." We do not think, however, that the term "children" in c. 272, Section 53, even when read with c. 277, Section 79, can be said to include all those who have not yet reached their twenty-first birthday. In G. L. c. 119, Section 52 (as amended through St. 1960, c. 353, Section 1), a "delinquent child" is defined as "a child between seven and seventeen who violates any city ordinance or town by-law or who commits any offence against a law of the commonwealth." A "wayward child" is also defined in terms of "a child between seven and seventeen years of age." Proceedings against children of those ages are governed by G. L. c. 119, Sections 52-63, inclusive, and jurisdiction in the first instance lies exclusively in the juvenile session. See G. L. c. 119, Section 74, as amended through St. 1964, c. 308, Section 6. [Note 2] See also Metcalf v. Commonwealth, 338 Mass. 648; D'Urbano v. Commonwealth, 345 Mass. 466. "Limited jurisdiction over juveniles who have passed their seventeenth birthday is provided in Section 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 . . .." D'Urbano v. Commonwealth, supra, at 470. [Note 3]

Page 63

It is clear that the term "children" in c. 119, Sections 52 et seq., does not include those who have attained their eighteenth birthday. We think that the term should be given the same meaning in c. 272, Section 53. An anomaly would arise if the petitioner could on the one hand be legally married by a magistrate or clergyman despite the objections of her parents (G. L. c. 207, Section 7), and on the other hand be sentenced to the house of correction for refusing to obey her parents' command not to see her intended husband.

In view of the fact that the statute as we construe it does not apply to the petitioner, we need not decide the other issues raised by the petitioner. See Cole v. Chief of Police of Fall River, 312 Mass. 523, 526, app. dism. sub nom. Cole v. Violette, 319 U.S. 581, reh. den. 320 U.S. 810; Bowe v. Secretary of the Commonwealth, 320 Mass. 230, 245, and cases cited; Attorney Gen. v. Dover, 327 Mass. 601, 608.

The judgment of the District Court is reversed and judgment is to be entered for the defendant (petitioner here). The petitioner is entitled to costs to be paid by the county of Middlesex. G. L. c. 250, Section 12. Alegata v. Commonwealth, 353 Mass. 287, 293, 298, 301.

So ordered.


[Note 1] "Stubborn children, runaways, common night walkers, both male and female, common railers and brawlers, persons who with offensive and disorderly act or language accost or annoy persons of the opposite sex, lewd, wanton and lascivious persons in speech or behavior, idle and disorderly persons, prostitutes, disturbers of the peace, keepers of noisy and disorderly houses and persons guilty of indecent exposure may be punished by imprisonment in a jail or house of correction" or by fine or both (emphasis supplied).

[Note 2] The amendment to Section 74 embodied in St. 1967, c. 787, took effect after the petitioner's conviction.

[Note 3] Although Section 72 was substantially rewritten by St. 1964, c. 308, Section 3, the above quoted language is still pertinent. At the time of the petitioner's conviction Section 72 read in part: "Courts, including the superior court on appeal, shall continue to have jurisdiction in their juvenile sessions over children who attain their seventeenth birthday pending adjudication of their cases . . ; and if a child commits an offense prior to his seventeenth birthday and is not apprehended until between his seventeenth and eighteenth birthdays, the court shall deal with such child in the same manner as if he had not attained his seventeenth birthday . . .. Nothing herein shall authorize the commitment of a child to the youth service board after he has attained his eighteenth birthday or give any court in its juvenile session any power or authority over a child after he has attained his eighteenth birthday" (emphasis supplied). See also G. L. c. 119, Section 72A, inserted by St. 1964, c. 308, Section 4, wherein it is provided that "The case of any person who commits an offense or violation prior to his seventeenth birthday, and who is not apprehended until after his eighteenth birthday," shall be heard in the juvenile session, which "either shall order that the person be discharged . . . or shall order that the complaint be dismissed" if the public interest requires that the "person" be tried in a criminal court for the offence (emphasis supplied).