Do the Constitution of the United States and the Constitution of the State of New York apply to children or only to adults? By the Fifth Amendment to the Federal Constitution, applicable to Federal courts, no person shall be compelled in a criminal case to be a witness against himself, nor deprived of his liberty, without due process of law. The latter provision, by the Fourteenth Amendment, is made binding on all the States.
These provisions are also in the New York State Constitution. Article 1, section 6, says that no person shall be compelled in any criminal case to be a witness against himself nor deprived of his liberty without due process of law. Again, I ask the question, do these protections and safeguards, found necessary against arbitrary and abusive power, apply only to grown-ups, or do our children share the protection? May a child be incarcerated and deprived of his liberty in a public institution by calling that which is a crime by some other name; and if so, at what age may the Legislature take from him the constitutional right? Again, let me put this more concretely, that we may realize just what we are doing. A man charged with burglary or larceny cannot be compelled to be a witness against himself. He cannot be forced to testify and then be convicted on his *Page 180 own statement. This law is as old as our Constitution. Can a child be deprived of his liberty, taken from his home and parents and incarcerated in an institution for a term of years, by changing the name of the offense from "burglary" or "larceny" to "juvenile delinquency?" If the Legislature can thus wipe out the constitutional protection by changing a name, the substance and reality remaining the same, at what age of an accused does this power begin and end? May the Legislature call forgery, larceny, burglary, assault, "moral delinquency," and send a person twenty years of age to Elmira Reformatory, or some other correctional institution, on his own confession, wrung from him by an inquisitorial process in court, compelling him to be a witness against himself? If this legislative power exists regarding a boy fifteen years of age, why is it not also possible to do the same thing to a young man twenty years of age? At what age do the constitutional safeguards and protection begin? The Constitution of this State and the Federal Constitution, in so far as it is applicable, cannot be nullified by a mere nomenclature, the evil or the thing itself remaining the same.
In this case, young Arthur L. Lewis, a boy fifteen years of age, was charged with violating section 486 of the Penal Law, by willfully, wrongfully and unlawfully forcibly breaking and entering a building, to wit, the Grand Union grocery store, situated at 126 Schubert street in the city of Binghamton, N.Y., and stealing and carrying away therefrom lawful money of the United States. Section 486 of the Penal Law provides that a child over seven, and under sixteen years of age, is a delinquent, who commits an act, which, if committed by an adult, would be a crime, not punishable by death or life imprisonment. This is theonly act of delinquency charged against young Lewis. If he had been sixteen years of age, the act charged would have been a crime.
Under the provisions of the Constitution, above mentioned, *Page 181 he could not be forced to be a witness against himself, which means that the charge could not be proved by questioning him about it as a witness in court.
Other provisions of the Code of Criminal Procedure would also apply to him, such as the inability to convict him on his own confession, without corroboration and the right to be confronted with witnesses and to cross-examine them. We brush these aside for the present, and deal only with the constitutional provision, which the Legislature cannot undermine. Therefore, Lewis, if he were sixteen years of age, would be charged with a crime, and the crime would have to be proved in accordance with the restrictions and prohibitions of the Constitution; he could not be compelled to be a witness against himself, or convicted and sent away on such testimony. Lewis being under sixteen years of age, all these safeguards have been brushed aside; the Constitution means nothing. The acts committed are exactly the same for a boy over sixteen as for a boy under sixteen, but the Legislature has called the one a "crime" and the other "juvenile delinquency." Changing the name for the same series of acts, the Legislature permits and authorizes a judge to question the accused in his court or in his chambers on the charge made against him; can compel him to be a witness against himself, and on his sworn or unsworn statement unsupported by any other evidence, send him to an institution until he is twenty-one years of age. This court should be very slow in sustaining any such arbitrary power.
We fully realize that all these measures were adopted in behalf of the infant, and out of so-called charitable considerations for his welfare. The motives behind all our reform movements are probably commendable and beyond criticism. Some are ever on the lookout to improve civic conditions and the morals of the individual by the force of law, and yet, we must be careful that in these endeavors to correct others, we do not exceed *Page 182 well-recognized principles of municipal government. Absolute power in the hands of a careful and just man may be a benefit, but most of our Constitutions have been adopted out of experience, with human nature as it is, and is apt to be in the future. We must minimize the chance of abuse and place limitations even upon those who have the best of purposes and the most benevolent dispositions. To send a young man to prison for a crime is a serious matter for him and his family. To take a young lad, filled with the wild dreams of childhood, from his parents and his home and incarcerate him in a public institution until he is twenty-one years of age, is equally as serious, and the consequences are not lessened by the emollient term, "juvenile delinquency."
The Children's Court Act of the State of New York (Laws of 1930, ch. 393) provides that a delinquent child is a person less than sixteen years of age who commits any act which, if committed by an adult, would be a crime, not punishable by death or life imprisonment. This is the part we are dealing with here in this case, but the act provides much more. It deals mainly with those children who are incorrigible, ungovernable, habitually disobedient and beyond the control of their parents, those who are habitually truant, and repeatedly desert their home, or who associate with unmoral and vicious persons, or who habitually use obscene or profane language or beg or solicit alms or money in public places. Juvenile delinquency is the commission by a child of any of the offenses enumerated in the foregoing, none of which are crimes if committed by adults or by anybody else. These charges are more or less informal, although records of the proceedings must be kept and sufficient evidence must be produced to prove the condition covered by the act. We are dealing here, however, with a charge of a crime, or that which would be a crime in an adult; it is a single act, not a continuing one. The doing of the deed constitutes the offense which this law calls "juvenile *Page 183 delinquency," and which in a child a year older would be called "a crime." It is such acts and deeds, call them what you will, which lead to the consequences or punishment; permit incarceration in a protective institution. When the only charge is one of crime — called out of charity "juvenile delinquency" — it must be surrounded in prosecution by the safeguards and limitations of the Constitution. This fundamental document of our State government, if it protects a boy sixteen years of age, must also protect a boy fifteen years of age. Once remove the barriers and where will we stop? If we say sixteen years of age is the limit today, the next Legislature may say twenty. Wise it is for this court to follow the Constitution as it is written, for even under it the field remains wide open for all experiments in the upbringing and development of our citizenry.
The Children's Court Act refers to neglected children and abandoned and destitute children and those physically handicapped. Surely here the Children's Court, as established, performs a most human function in caring for these unfortunates. In dealing with this subject, even at the expense of repetition, we must be careful to note that we are here touching upon only one minor portion of this progressive legislation, and that is, the juvenile delinquency existing solely upon the charge of an offense which in an adult would be a crime. That recognized procedure is to be followed as far as the circumstances permit is evidenced by section 14 of the Children's Court Act, which reads: "Where the method of procedure in a case or proceeding in which the court has jurisdiction is not provided in this act, such procedure shall be the same as provided by law, or by rules formally adopted by the court within the scope of this act, but the court may hear and determine causes in which it has jurisdiction with or without a jury, in the discretion of the court. If there be a jury, the number of jurors shall be six and the jury shall be drawn and a trial had in the *Page 184 same manner as obtains in the trial of criminal actions in the county court of said county, and the jury shall be in charge of the county officers the same as though said trial was in fact held in the county court."
Section 22 also provides that upon the return of a summons after a child has been taken into custody, the court shall proceed "to hear and determine the case * * * and inquire into the habits, surroundings, conditions and tendencies of the child." The judge made no such inquiry. What did the judge do in this case?
Arthur Lewis, a boy fifteen years of age, was, as already stated, charged with willfully, wrongfully and unlawfully breaking and entering a building and stealing money, that is, he was charged with acts which would constitute burglary and larceny if he had been one year older. The record shows that the boy appeared before the judge and was questioned by him. Whether he was sworn does not appear. The recital in the judgment of conviction says that the judge advised the boy and his mother that they might have the aid of counsel if they so desired. He at least must have had an idea that the proceedings were in the nature of a judicial inquiry. The questions put by the judge and the answers given by the boy have been written out and form thesole record of the proceeding. The boy confessed and the judge sent him to the State Industrial and Agricultural School at Industry, N.Y., to stay there until he was twenty-one years of age, unless sooner discharged. No other evidence was taken and no other proof given outside the confession. The accused having been forced to be a witness against himself, was sent away to be locked up on his own testimony. This was in direct violation of the Constitution of this State, and the Appellate Division was right in reversing the judgment.
We had this same question before us in People v. Fitzgerald (244 N.Y. 307, 313), and while it arose under the Children's Court Act of Buffalo (Laws of 1925, *Page 185 ch. 385), in essence there is no difference. This court was unanimous in saying: "Where, therefore, a child is arrested and charged with being a delinquent child because it has committed an offense which would be a crime in an adult, that offense must be proved, and proved by competent evidence. If our own good sense and judgment did not tell us this, the act itself creating the Children's Court of Buffalo would remind us of it. Section 344-x of the act notes the difference between a trial for an offense requiring competent proof before conviction and the other informal hearings whereby children may be provided with homes or proper guardianship. This section says:
"`Upon the return of the summons * * * after any child has been taken into custody, and at the time set for the hearing, the court shall proceed to hear and determine the case. The court from time to time may adjourn the hearing and inquire into the habits, surroundings, conditions and tendencies of the child.'"
These are the identical words as now found in section 22 of the Children's Court Act of the State of New York (Laws of 1930, ch. 393).
Reference may again be made to the caution suggested by JUDGE ANDREWS in People ex rel. Van Riper v. New York CatholicProtectory (106 N.Y. 604, 609), in dealing with this summary jurisdiction for the disposition of children. It was quoted at length in the Fitzgerald case.
The judgment of the Appellate Division should be affirmed.
POUND, Ch. J., LEHMAN, O'BRIEN and HUBBS, JJ., concur with CROUCH, J.; CRANE, J., dissents in opinion in which KELLOGG, J., concurs.
Judgment accordingly. *Page 186