INFANCY AS DEFENSE TO CHARGED COMMISSION OF JUVENILE OFFENSE

COURTS ‑- JUVENILE ‑- CRIMES ‑- INFANTS ‑- INFANCY AS DEFENSE TO CHARGED COMMISSION OF JUVENILE OFFENSE

The provisions of RCW 9A.04.050, under which children under eight years of age are incapable of committing a crime and children between eight and twelve years of age are presumed to be incapable of committing a crime, do not apply in a proceeding in juvenile court under chapter 13.40 RCW to have such child adjudged a "juvenile offender" as defined in RCW 13.40.020(11). 

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                                                                January 11, 1980 

Honorable James E. Carty
Prosecuting Attorney
Clark County
P.O. Box 5000
Vancouver, Washington 98663

Cite as:  AGO 1980 No. 2

Dear Sir:

            By letter previously acknowledged you requested our opinion on several questions which we paraphrase as follows: 

           (1) Does RCW 9A.04.050, under which children under eight years of age are incapable of committing a crime and children between eight and twelve years of age are presumed to be incapable of committing a crime, apply in a proceeding in juvenile court under chapter 13.40 RCW to have such child adjudged a "juvenile offender" as defined in RCW 13.40.020(11)?
 

            (2) If question (1) is answered in the affirmative, what standard of proof is required to show that the child is, in fact, capable of committing the "offense" (as defined in RCW 13.40.020(14)) alleged? 

            [[Orig. Op. Page 2]]

            (3) Also, in the event of an affirmative answer to question (1), if an agency or person is designated to make an advisory determination of whether the child is "capable" of committing the "offense" alleged, is that agency or person required to go beyond a determination that the child had "sufficient capability to understand the act or neglect, and to know that it was wrong" and to consider such problems as the child's ability to understand the proceedings and assist counsel in the defense?
 

            (4) If question (1) is answered in the negative, are there nevertheless any common law principles which will apply in such a proceeding by virtue of RCW 9A.04.060? 

            We answer question (1) in the negative, thereby rendering consideration of questions (2) and (3) unnecessary; and we also answer question (4) in the negative. 

                                                                     ANALYSIS 

            Question (1): 

            A.Preliminary Observations: 

            At the outset, we note the nonequivocal statement on this subject from one of the usually authoritative encyclopedias: 

            "The fact that a child is under the commonlaw age for criminal responsibility does not oust the jurisdiction of the juvenile court to deal with him as a delinquent . . ."1/

             [[Orig. Op. Page 3]]

            Unfortunately, however, the answer is not so simple.  In this state and others, significant and fundamental changes in the apparent legislative and judicial philosophic approaches to juvenile offense matters in recent years have, in the minds of some, cast doubt on this generally stated rule's continuing validity.  Furthermore, comprehensive changes in the text and spirit of Washington's criminal code and of its juvenile code, effective in 1976 and 1977 respectively, require a careful dissection of the relevant statutory language to see if changes in consideration of this issue were intended by our state legislature.  Moreover, careful and close analysis seems doubly important in view of our understanding that prosecutors in the three most populous counties in this state appear to have conceded to defense attorneys' arguments on this issue and, as a consequence, juvenile courts in those counties are now conducting infancy determinations as a routine, threshold matter in juvenile offense adjudications involving children under the age of twelve. 

            With this perspective in mind, we will look at your first question as a matter requiring careful statutory scrutiny.  In 1975 our state legislature culminated many years of work in adopting a revised comprehensive criminal code, Title 9A RCW, effective July 1, 1976.  Then, in 1977, the legislature adopted a revised comprehensive juvenile code, Title 13A RCW.  Your question involves sections from each of these major "new" laws and requires analysis of the letter, the history and the spirit of these revised legislative directives. 

            B.Letter of the Law: 

            The fundamental objective in construing statutes is to ascertain legislative intent.  Gross v. City of Lynnwood, 90 Wn.2d 395, 583 P.2d 1197 (1978).  To determine intent, an act must be construed as a whole and effect should be given to all language used.  Likewise, all of the provisions of the act must be considered in relation to each other and, if possible, harmonized to insure proper construction of each provision.  Burlington Northern Inc. v. Johnston, 89 Wn.2d 321, 572 P.2d 1085 (1977). 

            (1)The Statutory Language:
 

            (a)RCW 9A.04.050: 

            The initial focal point of your first question is RCW 9A.04.050 which reads in material part as follows: 

             [[Orig. Op. Page 4]]

            "Children under the age of eight years are incapable of committing crime.  Children of eight and under twelve years of age are presumed to be incapable of committing crime, but this presumption may be removed by proof that they have sufficient capacity to understand the act or neglect, and to know that it was wrong . . ." 

            You ask how this section of the criminal code fits into the juvenile court offense adjudication process, if at all. 

            (b)The Juvenile Court Act: 

            The Basic Juvenile Court Act, chapter 13.04 RCW, establishes juvenile court jurisdiction.  RCW 13.04.030 provides in pertinent part as follows: 

            "The juvenile courts in the several counties of this state, shall have exclusive original jurisdiction over all proceedings:

            ". . .

            "(6) Relating to juveniles alleged or found to have committed offenses or violations as provided in RCW 13.40.020 through 13.40.230, as now or hereafter amended, unless:

            "(a) The juvenile courttransfers jurisdiction of a particular juvenile to adult criminal court pursuant to RCW 13.40.110, as now or hereafter amended; or
 

            "(b) The statute of limitations applicable to adult prosecution for the offense or violation has expired; or
 

            "(c) The alleged offense is a traffic, fish, boating, or game offense committed by a juvenile sixteen years of age or older and would, if committed by an adult, be tried in a court of limited jurisdiction, in which instance the case shall be heard in the appropriate  [[Orig. Op. Page 5]] court of limited jurisdiction:  PROVIDED, That where such an alleged offense and an alleged offense subject to juvenile court jurisdiction arise out of the same event or incident, the juvenile court may have jurisdiction of both matters:  PROVIDED FURTHER, That the jurisdiction under this subsection does not constitute 'transfer' or a 'decline' for purposes of RCW 13.40.110(1) or subsection (6)(a) of this section; and
 

            ". . ."  (Emphasis supplied) 

            The definitions of the jurisdictional terms relevant to the instant question are found in chapter 13.40 RCW, the Juvenile Justice Act of 1977, at RCW 13.40.020: 

            ". . .
 

            "(10) 'Juvenile,' 'youth,' and 'child' mean any individual who is under the chronological age of eighteen years and who has not been previously transferred to adult court;
 

            "(11) 'Juvenile offender' means any juvenile who has been found by the juvenile court to have committed an offense, including a person eighteen years of age or older, committed pursuant to RCW 13.40.300;
 

            ". . .
 

            "(14) 'Offense' means an act designated a violation or a crimeif committed by an adult under the law of this state, under any ordinance of any city or county of this state, under any federal law, or under the law of another state if the act occurred in that state;
 

            ". . .
 

            "(20) 'Violation' means an act or omission, which if committed by an adult, must be proven beyond a reasonable doubt, and is punishable by sanctions which do not include incarceration."  (Emphasis supplied) 

             [[Orig. Op. Page 6]]

            Other statutory definitions in RCW 13.40.020 of relevance to our analysis include those of "serious offender" and "minor or first offender": 

            "(1) 'Serious offender' means a person fifteen years of age or older who has committed an offense which if committed by an adult would be:
 

            "(a) A class A felony, or an attempt to commit a class A felony;
 

            "(b) Manslaughter in the first degree, rape in the first degree, or rape in the second degree; or
 

            "(c) Assault in the second degree, extortion in the first degree, indecent liberties, kidnaping in the second degree, robbery in the second degree, burglary in the second degree, statutory rape in the first degree, or statutory rape in the second degree, where such offenses include the infliction of grievous bodily harm upon another or where during the commission of or immediate withdrawal from such an offense the perpetrator uses a deadly weapon or firearm as defined in RCW 9A.04.110;
 

            ". . .
 

            "(13) 'Minor or first offender' means a person sixteen years of age or younger whose current offense(s) and criminal history fall entirely within one of the following categories:
 

            "(a) Four misdemeanors;
 

            "(b) Two misdemeanors and one gross misdemeanor;
 

            "(c) One misdemeanor and two gross misdemeanors;
 

            "(d) Three gross misdemeanors;
 

            "(e) One class C felony (except for any felony which is listed in subsection (1)(b) or (c) of this section) and one misdemeanor or gross misdemeanor; 

             [[Orig. Op. Page 7]]

"(f) One class B felony (except for any felony which is listed in subsection (1)(a), (b) or (c) of this section. 

            "For purposes of this definition, current violations shall be counted as misdemeanors;
 

            ". . ."  (Emphasis supplied) 

            The juvenile court process begins with an initial "probable cause" screening by the prosecutor.  Thus, RCW 13.40.070 provides in part as follows: 

            "(1) Complaints referred to the juvenile court alleging the commission of an offense shall be referred directly to the prosecutor.  The prosecutor, upon receipt of a complaint, shall screen the complaint to determine whether:
 

            "(a) The alleged facts bring the case within the jurisdiction of the court; and
 

            "(b) On a basis of available evidence there is probable cause to believe that the juvenile did commit the offense.
 

            "(2) If the requirements of subsections (1)(a) and (b) of this section are met, the prosecutor shall either file an information in juvenile court or divert the case, as set forth in subsections (4), (5) and (6) of this section.  If the prosecutor neither files nor diverts the case, he shall maintain a record, for one year, of such decision and the reasons therefor.  In lieu of filing an information or diverting an offense a prosecutor may file a motion to modify community supervision where such offense constitutes a violation of community supervision.
 

            ". . ." 

            If an information is filed, the next step is the service of a summons.  Here, RCW 13.40.100 provides in part as follows: 

             [[Orig. Op. Page 8]]

            "(1) Upon the filing of an information the alleged offender shall be notified by summons, warrant, or other method approved by the court of the next required court appearance.
 

            "(2) If notice is by summons, the clerk of the court shall issue a summons directed to the juvenile,if the juvenile is twelve or more years of age, and another to the parents, guardian, or custodian, and such other persons as appear to the court to be proper or necessary parties to the proceedings, requiring them to appear personally before the court at the time fixed to hear the petition.  Where the custodian is summoned, the parent or guardian or both shall also be served with a summons.
 

            ". . ."  (Emphasis supplied) 

            The prosecutor has discretion, in certain statutorily articulated circumstances, to "divert" (as defined and provided for under chapter 13.40 RCW) or to not divert the alleged juvenile offender after he has made his probable cause determination; in other designated circumstances the statute restricts his exercise of discretion.  RCW 13.49.070.  In those discretionary situations in which he decides not to divert, the prosecutor must "maintain a record, for one year, of such decision and the reasons therefor."  RCW 13.40.070(2). 

            Consistent with the ruling inIn Re Gault, 387 U.S. 1, 18 L.Ed.2d 527, 87 S.Ct. 1428 (1967) and its progeny of cases, chapter 13.40 RCW also articulates in detail the procedural rights of the alleged offender in the juvenile court adjudicatory hearing and the related pre‑ and post-adjudicative phases.  Included in these protections are the following waiver of rights' provisions in RCW 13.40.140: 

            ". . .
 

            "(9) Waiver of any right which a juvenile has under this chapter must be an express waiver intelligently made by the juvenile after the juvenile has been fully informed of the right being waived. 

             [[Orig. Op. Page 9]]

"(10) Whenever this chapter refers to waiver or objection by a juvenile, the word juvenile shall be construed to refer to a juvenile who is at least twelve years of age.  If a juvenile isunder twelve years of age, the juvenile's parent, guardian, or custodian shall give any waiver or offer any objection contemplated by this chapter."  (Emphasis supplied) 

            If the Court decides that the juvenile offender is "guilty" of the offense charged, it must then hold a disposition hearing and, unless to do so would result in an articulable "manifest injustice," the Court must impose disposition within a range of standards established by the Department of Social and Health Services.  See, RCW 13.40.160.  Under RCW 13.40.030 those standards "may include terms of confinement and/or community supervision" and are to be based upon the following factors: 

            ". . .a youth's age, the instant offense, and the history and seriousness of previous offenses, but in no case may the period of confinement and supervision exceed that to which an adult may be subjected for the same offense(s) . . ."  (Emphasis supplied) 

            In terms of the age of an alleged offender, the upper limit of the juvenile court's jurisdiction is detailed in RCW 13.40.300 as follows: 

            "(1) In no case may a juvenile offender be committed by the juvenile court to the department of social and health services for placement in a juvenile correctional institution beyond the juvenile offender's twenty-first birthday.  A juvenile may be under the jurisdiction of the juvenile court or the authority of the department of social and health services beyond the juvenile's eighteenth birthday only if prior to the juvenile's eighteenth birthday:
 

            "(a) The juvenile court has committed the juvenile offender to the department of social and health services for a sentence consisting  [[Orig. Op. Page 10]] of the standard range of disposition for the offense and the sentence includes a period beyond the juvenile offender's eighteenth birthday; or
 

            "(b) The juvenile court has committed the juvenile offender to the department of social and health services for a sentence outside the standard range of disposition for the offense and the sentence includes a period beyond the juvenile's eighteenth birthday and the court by written order setting forth its reasons extends jurisdiction of juvenile court over the juvenile offender for that period; or
 

            "(c) Proceedings are pending seeking the adjudication of a juvenile offense or seeking an order of disposition and the court by written order setting forth its reasons extends jurisdiction of juvenile court over the juvenile beyond his or her eighteenth birthday.

            "(2) In no event may the juvenile court have authority to extend jurisdiction over any juvenile offender beyond the juvenile offender's twenty-first birthday.
 

            "(3) Notwithstanding any extension of jurisdiction over a person pursuant to this section, the juvenile court has no jurisdiction over any offenses alleged to have been committed by a person eighteen years or age or older." 

            Appeal from an order of the juvenile court is provided for in part by RCW 13.04.033 as follows: 

            "Any person aggrieved by a final order of the court may appeal the order as provided by this section.  All appeals in matters other than those related to commission of a juvenile offense shall be taken in the same manner as in other civil cases.  Except  [[Orig. Op. Page 11]] as otherwise provided in this title, all appeals in matters related to the commission of a juvenile offense shall be takenin the same manner as criminal cases and the right to collateral relief shall bethe same as in criminal cases. . ."  (Emphasis supplied) 

            If, subsequent to the charging stage but prior to juvenile adjudication, the prosecutor, the juvenile or the Court believes that the matter should be heard in adult court, any of those persons may file for a "decline hearing" pursuant to RCW 13.40.110 which provides as follows: 

            "(1) The prosecutor, respondent, or the court on its own motion may, before a hearing on the information on its merits, file a motion requesting the court to transfer the respondent for adult criminal prosecution and the matter shall be set for a hearing on the question of declining jurisdiction.  Unless waived by the court, the parties, and their counsel, a decline hearing shall be held where:
 

            "(a) The respondent issixteen or seventeen years of age and the information alleges a class A felony or an attempt to commit a class A felony; or
 

            "(b) The respondent isseventeen years of age and the information alleges assault in the second degree, extortion in the first degree, indecent liberties, kidnaping in the second degree, rape in the second degree, or robbery in the second degree.
 

            "(c) The court after a decline hearing any order the case transferred for adult criminal prosecution upon a finding that the declination would be in the best interest of the juvenile or the public.  The court shall consider the relevant reports, facts, opinions, and arguments presented by the parties and their counsel.
 

            "(3) When the respondent is transferred for criminal prosecution or retained for prosecution in juvenile court, the court shall set forth in writing its finding which shall be supported by relevant facts and opinions produced at the hearing."  (Emphasis supplied)

             [[Orig. Op. Page 12]]

            (2)The Legislative Message Interpreted: 

            On the face of it, the foregoing statutory scheme of Title 13 RCW would appear to establish a system whereby all children, from the newborn to age eighteen, as to whom there is both probable cause and a complaint of an "offense" or "violation" are to be subject to the exclusive jurisdiction of the juvenile court unless (1) the prosecutor chooses to not file as he may under RCW 13.40.070(2)‑-in which case the matter would become a nullity; (2) jurisdiction is declined by motion to the Court pursuant to RCW 13.40.110‑-in which case the matter would, upon transfer to adult criminal court, be tried in all respects as an adult criminal trial; or (3) there has been a previous declination with respect to the juvenile in question.  (RCW 13.40.020(10)) 

            The statutory scheme clearly envisions juvenile court exercise of jurisdiction over persons under twelve years of age.  See,e.g., waiver of rights, RCW 13.40.130(1) and service of summons, RCW 13.40.110(1).  And a more general sliding-scale consideration of the varying ages of offenders is envisioned in the statutory language mandating development of disposition standards by the Department of Social and Health Services.  RCW 13.40.030.2/ 

             By clear and explicit mention of age (a) as a factor for consideration in the decline process (RCW 13.40.110); (b) in the definitions and categories of offenses (RCW 13.40.020); (c) in the service of process requirements (RCW 13.40.110); (d) in the waiver of rights requirements (RCW 13.40.130); and (e) in the Department of Social and Health Services' mandate to develop sentencing standards, the legislature has manifested its concern that the system consider carefully the factor of age in each of these aspects of the juvenile court offense adjudication process.  Conversely, legislative silence on the infancy defense of RCW 9A.04.050,supra, implies‑-under the rule of inclusio unius est exclusio alterius‑-that the legislature did not intend for that defense to apply in juvenile offense adjudications. 

             [[Orig. Op. Page 13]]

            We find support for this view in the legislature's definition of an "offense" as "an act designated a violation or a crime if committed by an adult. . ."  RCW 13.40.020(14).  See also the above definitions of "violation" and "serious offender" which incorporate this same qualifying language;i.e., RCW 13.40.020(20) and (1). 

            The legislature is presumed not to engage in needless acts or to include superfluous or insignificant language in statutes.  Snow's Mobile Homes, Inc. v. Morgan, 80 Wn.2d 283, 494 P.2d 216 (1972).  But the words "if committed by an adult" in the excerpted portion of these definitions would indeed be needless verbiage if capacity in terms of chronological age (RCW 9A.04.050) had to be proven in every juvenile case even though the elements of the crime‑-the act or omission and the requisite criminal intent‑-are otherwise present.  And presumably, the definitions also imply that we are to assume that a juvenile "offender" does not commit a "crime" unless he is formally transferred into adult court under RCW 13.40.110 and convicted there; instead the juvenile has committed an "offense" only. 

            Another section of Title 13 RCW reflecting the legislature's labelling of juvenile offense adjudications as "noncriminal" is RCW 13.04.033 which provides for appeal rights and rights to collateral relief "in the same manner as criminal cases."  If the offenses themselves were to be deemed to be "crimes" or the adjudications to be "criminal cases," the legislature could easily have said so instead of drawing the "same manner" distinction. 

            It should also be noted that the current statutory scheme includes RCW 13.04.240 which provides that: 

            "An order of court adjudging a child delinquent or dependent under the provisions of this chapter shall in no case be deemed a conviction of crime." 

            In the context of a case involving an attempt to impeach testimony of a juvenile "delinquent" under the pre‑1977 statutory scheme, it was noted that this last quoted provision (also found in the former juvenile code) is 

            ". . . based in part on the philosophy that the purpose of our laws is not to punish a child, but rather to inquire into his welfare  [[Orig. Op. Page 14]] where reasonable cause exists and to provide an environment which will enable him to grow into a useful and happy individual . . ."State v. Matthews, 6 Wn.App. 201, 492 P.2d 1076 (Div. II, 1971). 

            As will be noted in the "spirit" discussion, infra, this remedial flavor and purpose apparently continues to exist under our current code.  SeeState v. Lawley, 91 Wn.2d 654, 591 P.2d 772 (1979).  But since RCW 13.04.240 in its current form, and the Matthews case interpreting it, predated the adoption of the 1977 legislation here in question, the legislature must be presumed to have taken this gloss on the statutes into consideration when it made RCW 13.04.240 a part of the new Title 13 RCW.  See, Daly v. Chapman, 85 Wn.2d 780, 539 P.2d 831 (1975). 

            For the foregoing reasons, we therefore believe that the legislature‑-by both express provision and by clear implication‑-manifested in the language used in Title 13 RCW its intent that the infancy defense in RCW 9A.04.050,supra, not be applicable in juvenile court offense adjudications. 

            C.  Statutory History: 

            So far, we have looked only at the face of the applicable statutes.  We will now attempt to explore the relevant historical development (see,Ropo, Inc. v. Seattle, 67 Wn.2d 574, 409 P.2d 148 (1965)), both at common law and under prior Washington enactments on this subject.

            (1)The Common Law:
 

            ". . . At common law, children under seven were considered incapable of possessing criminal intent.  Beyond that age, they were subjected to arrest, trial, and in theory to punishment like adult offenders. . . ."3/

             [[Orig. Op. Page 15]]

            Justice Harlan's concurring and dissenting opinion in the Gault case then notes that in the Nineteenth Century:

            ". . . there were no juvenile proceedings, and a child was tried in a conventional criminal court with all the trappings of a conventional criminal trial.  So it was that a 12-year-old boy named James Guild was tried in New Jersey for killing Catharine Beaks.  A jury found him guilty of murder, and he was sentenced to death by hanging.  The sentence was executed. . . .2/______________
 

            "2. State v Guild, 5 Halst 163, 18 Am.Dec. 404 (N.J.Sup.Ct).
 

            "'Thus, also, in very modern times, a boy of ten years old was convicted on his own confession of murdering his bed-fellow, there appearing in his whole behavior plain tokens of a mischievous discretion; and as the sparing of this boy merely on account of his tender years might be of a dangerous consequence to the public, by propagating a notion that children might commit such atrocious crimes with impunity, it was unanimously agreed by all the judges that he was a proper subject of capital punishment.'  4 Blackstone, Commentaries 23 (Wendell ed 1847)."  387 U.S. at 80, 18 L.Ed.2d at 575, 576.
 

            (2)Prior Statutes: 

            In 1891 this rigid common law rule of adult punishment for the wrongdoing juvenile was softened somewhat in this state with an enactment which allowed the criminal court to exercise its sentencing discretion in cases other than murder or manslaughter and to send juvenile criminals between the ages of eight and sixteen to the state reform school rather than to the adult prisons.  See, chapter 103, Laws of 1891.  At  [[Orig. Op. Page 16]] that time, however, all prosecutions of "juvenile" criminal code violators nevertheless occurred in the adult criminal courts.4/ 

             Then in 1905 (six years after the state of Illinois became the first state in the country to establish a separate juvenile court) this state's first provision for separate juvenile courts was adopted.  See, chapter 18, Laws of 1905 which provided for separate hearing for and sentencing of, among others, delinquent "children under the age of seventeen years," not previously incarcerated as "delinquents."  "Delinquency" was defined as part of § 1 of that act which read as follows: 

            "This act shall apply only to children under the age of seventeen years, not now or hereafter inmates of any State institution, or any Training School for boys, or Industrial School for Girls, or some institution incorporated under the laws of this State, for the care and correction of 'delinquent children' shall include any child under the age of seventeen years, who violates any law of this State, or any City or Town ordinance; or who is incorrigible, or who knowingly  [[Orig. Op. Page 17]] associates or lives with thieves, vicious, immoral or disreputable persons; or who is growing up in idleness or crime; or habitually begs or receives alms; or who is found living in any house of ill fame; or who knowingly visits or enters a house of ill repute; or who knowingly patronizes or visits any policy shop or place where any gambling device is or shall be operated; or who patronizes or visits any saloon or dram shop where intoxicating liquors are sold; or who patronizes or visits any public pool room or bucket shop; or who wanders about the streets in the night time without being on any lawful business or occupation; or who habitually wanders about any railroad yards or tracks, or jumps or hooks onto any moving train, or enters any car or engine without any lawful authority; or who habitually uses vile, obscene, vulgar, profane or indecent language; or is guilty of immoral conduct in any public place, or about any school house; and any child under the age of eight years who is found peddling or selling any articles; or singing or playing any musical instrument upon the street, or giving any public entertainment.  Any child doing any of the acts herein mentioned shall be deemed a Juvenile Delinquent Person, and shall be proceeded against as such in the manner hereinafter provided.  A disposition of any child under this act, or any evidence given in such cause, shall not in any civil, criminal or other cause or proceeding whatever, in any court, be lawful or proper evidence against such child for any purpose whatever, excepting in subsequent cases against the same child under this act.  The word 'child' or 'children' may mean one or more children, or the word 'parent' or 'parents' may mean one or both parents when consistent with the intent of this act.  The word 'association' shall mean any incorporation which includes in its purpose the care and disposition of children consistent with the intent of this act."           [[Orig. Op. Page 18]]

            Four years later, by chapter 190, Laws of 1909, the legislature modified this enactment‑-providing a slight variation on the definition of "delinquent," raising the maximum age of the juvenile court's original jurisdiction to include "children under eighteen years of age," and providing for a separate category of juveniles labelled "neglected children."  Another provision of this 1909 legislation was the first predecessor version of the current decline provisions of RCW 13.40.110, supra.  The final sentence of § 12 of chapter 190, Laws of 1909 provided that: 

            ". . . If upon investigation it shall appear that a child has been arrested upon the charge of having committed a crime the court, in its discretion, may order such child to be turned over to the proper officers for trial under the provisions of the criminal code."5/ 

             In that same year, in an apparent modification of the common law infancy rule, Washington's legislature also adopted the predecessor version of RCW 9A.04.050, supra, when this state's first comprehensive criminal code was enacted as chapter 249, Laws of 1909.  Section 5 of that enactment was in the same form as the current version of RCW 9A.04.050.  Repeated here for ease of reference, that section provided in relevant part as follows: 

            "Children under the age of eight years are incapable of committing crime.  Children of eight and under twelve years of age are presumed to be incapable of committing crime, but this presumption may be removed by proof that they have sufficient capacity to understand the act or neglect, and to know that it was wrong. . ."  (Emphasis supplied) 

            Prior to this 1909 enactment, the common law rule of (1) irrebutable incapacity for those under seven and (2) presumed criminal incapacity for those between seven and fourteen seemingly applied in Washington.  Accord, RCW 4.04.010.  Where criminal capacity could be proven, however, such a juvenile, if above age seven and found capable of committing a crime, would be punished alongside and equally with adult criminals. 

             [[Orig. Op. Page 19]]

            Chapter 160, Laws of 1913 provided further refinement to the juvenile code by, among other things, further redefining "delinquent child" in part as follows: 

            ". . . any child under the age of eighteen years who violates any law of this state, or any ordinance of any town, city, county or city and county of this state defining crime; or who habitually uses vile, obscene, vulgar, profane or indecent language, or is guilty of immoral conduct; or who is found in or about the railroad years or tracks; or who jumps on or off trains or cars; or who enters a car or engine, without lawful authority." 

            The statutory definition of "delinquent child" did not undergo any additional modification until 1961 when its scope was narrowed somewhat to read as follows: 

            "The words 'delinquent child' mean any child under the age of eighteen years who violates any law of this state, or any ordinance of any town, city, or county of this state defining a crime or who has violated any federal law or law of another state defining a crime, and whose case has been referred to the juvenile court by any jurisdiction whatsoever."6/

             It is thus clear then that since 1913, or at the latest, 1961, Washington's juvenile courts have faced the same basic statutory interpretation question you have posed.  The predecessor to RCW 9A.04.050 was in existence in its current form prior to that date.  So were the decline provisions in the juvenile code.  And the juvenile code from that time to the present has provided similarly for juvenile court jurisdiction over "any child under the age of eighteen" who, among other things, violates a law or an ordinance defining crime.  It is, however,  [[Orig. Op. Page 20]] our understanding that until enactment of the new, 1977, Juvenile Justice Act, juvenile delinquency proceedings conducted in the juvenile courts of this state were commonly understood not to require infancy-capacity determinations.  The general understanding, apparently, was that the legislature did not intend to make this question a part of the juvenile court process. 

            In light of the fact that there has been no significant statutory amendment in any of the relevant provisions of the criminal code or of the juvenile code, this long-time construction of the relevant language by the courts must be given considerable deference.  The legislature is presumed to be familiar with the construction given its past enactments,Daly v. Chapman, 85 Wn.2d 780, 539 P.2d 831 (1975); and implied repeal is not favored,State v. Ensminger, 77 Wn.2d 535, 463 P.2d 612 (1970).  For this reason, we believe that analysis of the statutory history behind the relevant legislation leads to the same conclusion as analysis of the face of the statute;i.e., that infancy was (and is) not intended to be an issue in a juvenile court offense adjudication.  With this in mind, we will turn to the third, and most ephemeral prong of our statutory analysis‑-analysis of the spirit of the legislation. 

            D.  Spirit of the Law: 

            Our courts have said that an interpretation within the letter of the law but not within its spirit may be held inoperative where it would otherwise lead to an absurd conclusion.  Murphy v. Campbell Inv. Co., 79 Wn.2d 417, 486 P.2d 1080 (1971). 

            The question in the instant context is whether the absolute rejection of infancy as a defense in juvenile offense adjudications is "absurd" in the context of the modern statutory scheme.  It could be asserted that one absurd result from application of the interpretation offered in the preceding pages might be that a child under eight could be subject to a juvenile offense adjudication under some set of circumstances only technically coming within the terms of chapter 13.40 RCW; e.g., a five‑year-old "three time loser" who must be punished under the law.7/ 

             The fundamental "spirit" argument here is that the juvenile adjudicative proceeding was transformed from a civil or quasi-criminal proceeding to one totally criminal in nature  [[Orig. Op. Page 21]] with the adoption of the Juvenile Justice Act of 1977.  Cf.,State v. Lawley, 91 Wn.2d 654, 591 P.2d 772 (1979).  With the procedural transformation, so the argument goes, came a requirement that the prosecution prove all elements of both the act or omission and the mens rea, including both specific intent and general "criminal" capacity; e.g., age, sanity and lack of intoxication; thus, a proof of guilt "beyond a reasonable doubt" on all such elements just as is required in adult criminal court. 

            Any such question concerning the procedural requirements arguably mandated under the philosophy of the new juvenile code (as compared against the philosophy of the old code) must be reviewed in the light of the majority opinion inState v. Lawley, supra.  In that case the Court, by a 5-4 majority, ruled that the philosophy of the new juvenile code did not entitle juvenile offenders to the same right to a jury trial as is afforded adult defendants.  In so ruling, the majority opinion discussed the philosophy of the new statutory scheme as follows: 

            "Standing alone these legislative declarations of purpose might seem to indicate an intent to convert the juvenile procedures into traditional adult criminal proceedings.  However, there are three reasons why we believe the legislature did not intend to accuse, treat and sentence juveniles the same as adult offenders.
 

            "First, the legislature may well have determined that the accountability for criminal behavior, the prior criminal activity and punishment commensurate with age, crime and criminal history does as much to rehabilitate, correct and direct an errant youth as does the prior philosophy of focusing upon the particular characteristics of the individual juvenile.  Whether that approach, compared to the prior philosophy is potentially more effective is not for this court to decide.  The legislature was dealing with a social problem, the solutions to which do not lie within any peculiar expertise of judges.  The legislature has made a considered decision that this act is more appropriate than the one which has not succeeded heretofore. 

             [[Orig. Op. Page 22]]

"Second, the legislature in fact has done more than merely mandate punishment for the juvenile offender.  For example, in RCW 13.40.010(2)(f) it declares a purpose to provide necessary treatment, supervision and custody for juvenile offenders. Likewise in subdivision (j) there is specific reference to punishment, treatment or both in dealing with the juvenile.  Counseling may be part of community supervision which is provided for in RCW 13.40.020(3)(d).  Accused juveniles are provided their full range of constitutional rights such as the right to an attorney, to confront witnesses, the privilege against self-incrimination and suppression of evidence illegally obtained.  RCW 13.40.140. 

            "While the act does set certain determinate disposition standards, it expressly reserves to the juvenile court judge the right to alter an otherwise mandated disposition if the court finds that such disposition would impose an excessive penalty on the juvenile.  RCW 13.40.020(12) and RCW 13.40.160.
 

            "Further at the disposition hearing, the court is empowered to receive and consider all relevant and material evidence including (1) recommendations from the prosecutor and counsel for the juvenile, (2) information and arguments offered by the parties and their counsel, (3) predisposition reports and (4) statements from the juvenile and his or her parent, guardian or custodian.  Additionally, the court may consider both mitigating or aggravating circumstances.  RCW 13.40.150.
 

            "Commitment of a juvenile to an institution is still limited to juvenile facilities established pursuant to chapter 72.05 RCW and chapters 72.16 through 72.20 RCW.  RCW 13.40.020(9).  Looking at those referenced statutes we find again emphasis upon the interest, welfare and rehabilitation of the individual child.  For example, RCW 72.05.010 refers to providing certain facilities and services which will best serve the welfare of the child and society.  RCW 72.05.130 refers to programs for treatment, guidance and rehabilitation.  Likewise, RCW 72.19.060 establishes a polity of reformation, training and rehabilitation." 

             [[Orig. Op. Page 23]]

            While the instant question does not pose such a fundamental question as the Sixth Amendment right to jury trial, we find the Lawley discussion instructive.  Its message, as we see its applicability here, is that the juvenile proceedings are to take on adult criminal procedural requirements only if (1) the legislature clearly intends it or (2) the state or federal constitution requires it.  In our opinion, neither of those circumstances exist here. 

            E.Cases from Other Jurisdictions: 

            Finally, we note that your question regarding availability of the infancy defense in juvenile court offense proceedings, either as a matter of statutory interpretation or as a common law defense, has been answered in different ways by courts in several other jurisdictions.  See,Juvenile Court v. State, 139 Tenn. 549, 201 S.W. 771 (1918); Borders v. U.S., 256 F.2d 458 (5th Cir. 1958);K.P. v. State, 327 So.2d 820 (First Dist., Fla. App., 1976);R.D.C. v. State, 332 So.2d 134 (Third Dist., Fla. App., 1976);In Interest of E.P., 297 So.2d 238 (Fourth Dist., Fla. App., 1974);State v. D.H., 309 So.2d 601 (Second Dist., Fla. App., 1975);In Re Gladys R., 83 Cal.Rptr. 671, 1 Cal.3d 855, 464 P.2d 127 (1970);In Re Davis, 17 Md.App. 98, 299 A.2d 856 (1973).  See also Note, 34 Md.L.Rev. 178 (1974), and Fox, Responsibility in the Juvenile Court, 11 Wn. & Md.L.Rev. 659 (1970), collecting some of these cases and analyzing the issues.  The two case note authors reach differing conclusions regarding the better modern view on this question.  In the next several pages of this opinion we will discuss each of the referenced cases and will endeavor to determine their relevance for an analysis of Washington's legislation. 

            InJuvenile Court v. State, 139 Tenn. 549, 201 S.W. 771 (1918) a seven-year-old who killed his companion with a shotgun was held to be subject to juvenile court jurisdiction without regard to the common law infancy rule.  The Court's rationale was that the Tennessee juvenile proceedings were not criminal in nature and hence the common law rule was inapplicable.  201 S.W. at 772, 773. 

            More recently decided are four cases out of the lower appellate courts of Florida which leave this issue unsettled in that state.  Two circuits held the common law rule to be  [[Orig. Op. Page 24]] inapplicable in juvenile court proceedings:  K.P. v. State, 327 So.2d 820 (First Dist., Fla. App., 1976) in the theft of a lawn mower by a twelve‑year-old; andR.D.C. v. State, 332 So.2d 134 (Third Dist., Fla. App., 1976) in a first degree assault by a twelve‑year-old.  Two other circuits found the rule to be applicable:  In Interest of E.P., 291 So.2d 238 (Fourth Dist., Fla App., 1974) involving manslaughter by a twelve‑year-old; State v. D.H., 309 So.2d 601 (Second Dist., Fla. App., 1975) in a burglary and petty theft by a nine‑year-old. 

            The opinion writers in each of those four Florida cases attempted to answer the question by characterizing the juvenile proceeding as either "criminal" or "non-criminal" in nature, and then dividing equally on the basis of their result-oriented characterizations.  As is discussed,infra, at page 26 of our analysis, this analytical approach would appear to be too broad in its scope, at least under the statutory scheme for Washington State. 

            Taking the view that an infancy determination is required under the California juvenile code were five members of the California Supreme Court (against two dissenters) inIn Re Gladys R., 83 Cal.Rptr. 671, 1 Cal.3d 855, 464 P.2d 127 (1970).  But that decision hinges in large part on the special wording of the California delinquency laws.  This, of course, limits the application of that holding to Washington's situation.  Both the majority and the dissenting opinion writers did engage, however, in a spirited discussion regarding the better view of this issue in light of the apparent philosophical approach of modern juvenile delinquency legislation. 

            The dissent inIn Re Gladys R., made much of the proposition that the "remedial and beneficent purposes" of the code8/ were not necessarily effectuated when some children under the age of fourteen have clearly gone wrong but because of the infancy defense would not receive attention.  83 Cal.Rptr. at 683.  The dissent pointed out that the very children who often most need early attention and guidance are those who don't understand the nature of the act or its wrongfulness.In Re Gladys R., 83 Cal.Rptr. 671, 1 Cal.3d 855, 464 P.2d 127 (1970) (dissenting opinion of Judge Richardson).  The dissent argued that an interpretation which puts these offenders outside the reach of the juvenile court does not appear to square with the  [[Orig. Op. Page 25]] remedial role of the court.  See also discussion of this question in Note, 34 Md.L.Rev. at 183-185; cf., Fox, 11 Wn. & Md.L.Rev. at 672-674. 

            One rebuttal argument suggested by the majority in In Re Gladys R., is that California's juvenile code contains other provisions (relating to so-called "dependency") which deal with most of these excluded juveniles in a less punitive, alternative fashion.  Such alternatives appear to be available to a lesser extent under the new Washington scheme than under California's system.  Therefore, to the extent that the dissent's philosophical concern in In Re Gladys R., regarding lack of attention to the "incapable" category of juvenile has any validity, it would have more weight in this state. The so-called "grossly immature" (34 Md.L.Rev. at 183) child arguably deserves some early attention from the system even if it is only a diversion program, and, to the extent that the dependency process fails to fill this need, application of the infancy defense will leave a hole in the juvenile code of Washington through which this category of child would fall. 

            In Re Davis, 17 Md.App. 98, 299 A.2d 856 (1973) involved a twelve‑year-old Maryland car prowler who attempted to invoke the common law infancy presumption (for ages 7-14) in juvenile court.  The court of appeals rejected his argument on the rationale that juvenile court delinquency proceedings in that state are not "criminal" in nature.  (Maryland's "delinquency" statute resembles the pre‑1977 Washington version.)  The Court declared that "a child does not commit a crime when he commits a delinquent act and therefore is not a criminal.  He is not to be punished but afforded supervision and treatment to be made aware of what is right and what is wrong so as to be amenable to the criminal laws."  299 A.2d at 860. 

            The stated rationale, but not the result, underlying this Maryland decision has been criticized in that state.  See Note, 34 Md.L.Rev. 178 (1974).  The notewriter emphasized in an analysis of an excerpt from the statute that the Maryland Juvenile Court Act defines delinquency as an act which "would be a crimeif committed by an adult."  Impliedly then, he argued, the legislature has thus said that infancy should not be an issue in juvenile court.  34 Md.L.Rev.,supra, at 182, 183.9/ 

             [[Orig. Op. Page 26]]

            The notewriter criticized, however, the broader rationale of the opinion (i.e., that such juvenile proceedings are "non-criminal" and for that reason do not require full blown criminal prosecution protections).  This rationale, he argued, could lead to a future rejection of an insanity or intoxication defense in a juvenile delinquency hearing.  34 Md.L.Rev.,supra, at 183-187.  He argued compellingly that such defenses should be allowed in juvenile adjudications.10/ 

             We agree with this analysis of the Maryland decision.  It is our view that similar logic would be applicable to analysis of the relevant Washington State statutes.  In Washington, as in Maryland, age, alone, is a unique factor for consideration in juvenile offense adjudications.  The entire scheme of chapter 13.40 RCW has been developed to deal with the perceived need for special treatment for most of these members of our society who are under eighteen years of age and have gone wrong.  It is not inconsistent with this scheme to incorporate in chapter 13.40 RCW all provisions of our state and local criminal codes except those provisions relating to the minimum age of offenders. 

            In our review of the referenced cases from other jurisdictions,supra, and in our review of the philosophic approach of Washington's Juvenile Justice Act of 1977, we do not find a clear message in the "spirit" of the legislation which would either mandate or preclude consideration of the infancy issue in the juvenile court offense adjudication.  We find a mixture of both "penal" and "remedial" elements (see State v. Lawley, supra) in the new code such that the legislature can exercise either option on this question without creating an inconsistent or confusing scheme.  At present, however, in our view, the  [[Orig. Op. Page 27]] legislature's current scheme precludes consideration of this question.  It appears that only a legislative amendment incorporating the substance of RCW 9A.04.050 into chapters 13.04 and 13.40, RCW, would make the infancy defense available in juvenile court offense adjudications. 

            Conclusion: 

            For the foregoing reasons we are, in response to your first question, of the opinion (1) that the letter of the juvenile laws, viewed alone and in the context of statutory history, excludes the infancy question from the juvenile offense adjudication process and (2) that the spirit of the legislation, though giving a mixed message, does not compel a contrary reading of the statute.  We therefore answer that question in the negative.