(dissenting). I find myself compelled to dissent in this case because I differ basically with the approach and reasoning of the majority opinion.
In In re Mei, 122 N. J. Eq. 125 (E. & A. 1937), it was held that the provisions of N. J. S. 2A :85-4 and R. S. 9 :18 — 12 did not deprive the grand jury or the courts in finding a murder indictment against the defendant under the age of 16 years and trying it. In that case it was held that the accused, who was 15 years and 4 months of age when the crime was committed, could not be held under a charge of murder by the Juvenile and Domestic Relations Court because “a charge * * * of murder cut so deeply into human emotions, collides so violently with life’s experiences and fair expectations, and is so horrible in fact and in the contemplation of society, that it remains a crime within the *60purview of the Constitution, whatever name and whatever treatment may be appended to it by the legislature.”
This observation goes to the very heart of the problem in attempting to bring the crime of murder within the statutory definition of “juvenile delinquency” over which subject the Juvenile and Domestic Delations Court is vested with jurisdiction by the statute. N. J. S. 2A :85-4 merely re-enacted the provisions of L. 1935, c. 285, which was passed in conjunction with L. 1935, c. 284, defining juvenile delinquency. Both statutes became effective June 27, 1935, two years prior to the decision in the Mei case. The Mei case turned on the question oC constitutional power and not of policy.
The legislative, enactments subsequent to tire Mei case, L. 1943, c. 97; L. 1946, c. 77 and L. 1948, c. 284, were likewise prior to the. decision in State v. Smigelski, 137 N. J. L. 149 (Sup. Ct. 1948), appeal dismissed 1 N. J. 31 (1948). I discern no clear-cut legislative intention in these statutes to ignore the. flat holding in the 2Iei case that murder was beyond the purview of the jurisdiction of the Juvenile and Domestic Delations Court. T am compelled to follow the established rule tliat whore a statute has been construed by the courts and this construction has been supported by long acquiescence on the part, of the. Legislature or by continued use of the same, language, or by failure to amend the statute with respect to the particular question, that this is evidence that such construction is in accordance with the legislative intent. Commissioner of Banking & Insurance v. Moresh, 122 N. J. L. 77 (E. & A. 1939) ; Barringer v. Miele, 6 N. J. 139 (1951) ; Miller v. Board of Chosen Freeholders, 10 N. J. 398 (1952), Therefore, I conclude that the holding in the Mei case is still controlling and that the Juvenile and Domestic Delations Court is without jurisdiction to try a charge of murder as defined by N. J. S. 2A :113 — 1, 2.
The majority, however, have, in effect overruled the holding in the Mei case and assert that under the parens patriae doctrine, both on psychological and sociological grounds, the State and the Legislature have the power to treat such a crime when committed by an infant on a psychological or *61sociological basis and bring it within the definition of juvenile delinquency as set forth in the statute.
The right of punishing malefactors derives its origin from that which every individual originally had in the society of nature to repel the injuries committed against himself, or against members of the society; a right that has been yielded and transferred to the State. The principal end of punishment is the welfare of society, but there are many various means of arriving at this end according to varying circumstances, and the State in inflicting punishment may propose different and particular views consistent with the welfare of society. In the words of Grotius, “In punishments we must either have the good of the criminal in view, or the advantage of him whose interest it was that the crime should not have been committed, or the good of all indifferently.” So it is universally acknowledged that if the State proposes to correct the criminal and impose a punishment, the punishment, if the criminal is reformed by it, tends to the public good. But punishment ought to be strictly subordinate to the principal end of criminal processes; namety, the safety of the public. Prudence dictates that the justice established fox the preservation of society should not be exercised in such a manner as to subvert the State. Within this general ambit the action of the Legislature is free from judicial restraint under our doctrine of the separation of the powers, and whether punishment for a crime should be solely pimitive or correctional or a combination of both is strictly within the Legislative province.
But the nub of the problem here presented revolves around the statutory provision, N. J. S. 2A :85 — 4, which provides:
“A person nuclei- the age of 16 years is deemed incapable of committing a crime.”
This provision seemingly ignores the fundamental fact of the law of nature as applied to man and facts of everyday existence which are of common knowledge and public notice.
I cannot comprehend the reasoning that suggests that marauding gangs of little hoodhrms armed with guns, knives, *62switch knives or other lethal weapons are to be considered as a matter of law incapable of committing the crime of murder. Infants under the age of 21 years, according to statistics, perpetrate a high percentage of the heinous crimes committed throughout the country, and the situation has reached such serious proportions that it is a threat to the public welfare and safety of the law-abiding citizen. In one instance it reached the alarming situation where a confirmed criminal had organized a gang of teenagers “to murder and rob” while he himself never took physical part in the crimes. This gang of little hoodlums committed 50 holdups and burglaries in a period of eight months with weapons supplied by the confirmed criminal. Murder by an individual criminal is bad enough, but when it appears that a confirmed criminal has organized a group of teenagers for the sole purpose to murder and rob, then the time has come to examine the underlying philosophy of the treatment of juvenile offenders particularly where the crime of murder is involved.
Homicide or the killing of any human creature is of three kinds: justifiable, excusable and felonious. The first has no share of guilt at all, the second very little, but the third is the highest crime against the law of nature that man is capable of committing. 2 Chitty’s Blackstone *178.
The constituents of a criminal offense are an evil intention and an unlawful act, State v. Labato, 7 N. J. 137 (1951), so that the effect of the legislative declaration above quoted is that any infant who is mentally capable of forming an evil intent and commits the overt act of homicide is not guilty or cannot be found guilty of the highest crime against nature, because he is incapable of a criminal intent merely because of his age.
The principal end of civil government on society is to secure to mankind all their natural advantages, and especially their lives. Of all the natural rights the preeminent one is the right to life. Man is not a master of his own life nor can he voluntarily accede to the proposition that the State is master of his life except in two situations: (1) in the indirect manner for the defense of the State, and (2) in the *63direct manner for the punishment of crimes. His right to life is based upon a natural law; otherwise he would be the creature of the State, he would have no rights based upon his own nature as a rational being except the rights given to him by the State. What rights the State might give to him it could take away from him, and if this were so the word “unalienable” as used in Article I of the Constitution of 1947 wrould become another synonym for “expendable.”
Article I of our Constitution provides:
“All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.”
Thus there is reserved to the individual citizen his unalienable rights, including that of life and liberty.
Natural liberty is the right, which nature gives to all mankind, of disposing of their persons and property after the manner they judge most convenient to their happiness, on condition of their acting within the limitation of the larv of nature and of their not abusing it to the prejudice of their fellowman. To this reciprocal right of liberty there is a reciprocal corresponding obligation, by which the law of nature binds all mankind to respect the liberty of other men and not to disturb them in the use they make of it so long as they do not abuse it.
Civil liberty, on the other hand therefore, is nothing more than natural liberty so far restrained by positive law as is necessary for the preservation of human rights and the maintenance of peace and order in society. Civil liberty is natural liberty, regulated by such laws as are necessary for the maintenance of justice and attended with the right of every citizen and person of insisting that the government shall make the proper use of its authority, and the security that this unalienable right of natural and civil liberty shall be respected and protected. Thus it is that the highest duty of the State is to protect the life of man. Man as a citizen of the State has a right to insist that the positive law of the State discharge this duty. He and his children have rights *64in this respect that are superior to those of the, child malefactor.
In every civilized society in history murder has been considered to be naturally and inherently wrong. It is malum per se because from the very nature of the transaction it violates the highest natural right of man. Every civilization or society has considered murder the highest offense against the law when committed by a rational human being, and it has never been questioned that murder is wrong and malum per se. This principle of the natural law is immutable and indisputable and was well understood by the founding fathers, and the mere fact it is not specifically mentioned in the Constitution is of no moment in view of the general guarantees of unalienable rights of man found in Article I.
As is stated in the. Mei case, the mere restatement of this proposition as part of the positive law adds nothing to the turpitude of the crime of murder. In murder by a felonious act the right of life is wiped out, and if this can be done with impunity or lack of guilt on a psychological or sociological basis, then the other unalienable rights, among which are the right to personal liberty, to freedom of speech, to liberty of conscience and to private property, would be utterly futile and sterile. All attempts to protect and defend them in the judicial forum would be without meaning or purpose if the right to life is not inviolable and by legislative fiat the positive law can say that an infant mentally capable of criminal intent is incapable of committing the crime of murder. Man, including children, is a rational animal, a psycho-physical being capable of rational thought and free will. Unless he is mentally incompetent and thus irrational, there comes a point in the life of each when he becomes capable of distinguishing between right and wrong. This is in the nature- of man himself, although the point at which it is reached depends upon the type of society or civilization in which he lives and will also vary somewhat with each individual.
At the common law and in this State, insofar as a crime is concerned, the inability to form a criminal intent is a matter of defense. As to children under the age of seven *65years there is a conclusive presumption that the child was doli incapaz, or incapable of entertaining a criminal intent, and no evidence can or should be received to show capacity in fact. Between the ages of seven and 14 the presumption is rebuttable, but the State or prosecution has the burden of showing that the infant has sufficient intelligence to distinguish between right and wrong and to understand the nature and illegality of the particular act. Over the age of 14 children were and are presumed to be doli capax and therefore responsible. The presumption is rebuttable but the burden of proof is upon the defendant to establish that he did not have sufficient intelligence to understand the nature and consequences of his act. These rules are consistent with the nature of man and the natural use of his faculties of intellect and will, and his freedom to acquire the necessary knowledge to make the distinction between right and wrong. They are rules to determine the ultimate fact of the ability of an individual to distinguish between right and wrong. The point in life when a person is capable of making this distinction may vary, but once it is reached that person, whether it be an adult or a child, is capable of criminal intent.
The trial and conviction for a crime is strictly within the judicial province and the determination of the ultimate fact of criminal intent is likewise within the judicial province. And this being so, as I see it, the constitutional guarantees with respect to indictment and trial are applicable. Once an indictment is found, the trial of the ultimate fact of criminal intent, which is the most important element in a charge of murder, must be tried by a jury.
The views expressed here were of sufficient moment to induce the Legislatures in many states to remove the charge of murder from the field of juvenile delinquency. It is indeed a curious anomaly that in this country, where civilization in some respects has reached its highest peak insofar as the welfare and comfort of an individual is concerned and where the educational opportunities are practically unlimited for a child, we are brought face to face with a statute that in effect denies that the normal child is a rational human *66being insofar as the highest crime against nature is concerned. I doubt that even in the primitive state of civilization there is any society that subscribes to such a proposition. Bluntly, the statute practically says that a child, •within defined age limits, is not a rational being but merely an animal without the will or mind to control its baser animal instincts.
The appellant makes the argument that all previous pertinent decisions of the court of last resort in this State, In re Daniecki, by Ralner, 117 N. J. Eq. 527 (Ch. 1935), affirmed 119 N. J. Eq. 359 (E. & A. 1936); In re Mei, supra; State v. Smigelski, supra, are cases in which the infant defendant was a willful, deliberate, premeditated killer or was the actual killer in the perpetration of a robbery or other felony. He refers to such murders as “designed murders.” He contends that these cases are not in point here where the infant defendant was not the actual killer and that there is no case in this State involving “a felony murder” by an infant-where the criminal intent or scienter is predicated upon the commission of crimes listed in N. J. S. 2A :113 — 1, 2.
Murder, by statute, is defined as follows, N. J. S. 2A :113-1:
“If any person, in committing or attempting to commit arson, burglary, kidnapping, rape, robbery, sodomy or any unlawful act against the peace of this state, of which the probable consequences may be bloodshed, kills another, or if the death of anyone ensues from the committing or attempting to commit any such crime or act; or if any person kills a judge, magistrate, sheriff, coroner, constable or other officer of justice, either civil or criminal, of this state, or a marshal or other officer of justice, either civil or criminal, of the United States, in the execution of his office or duty,' or kills any of his assistants, whether specially called to his aid or not, endeavoring to preserve the peace or apprehend a criminal, knowing the authority of such assistant, or kills a private person endeavoring to suppress an affray, or to apprehend a criminal, knowing the intention with which such private person interposes, then such person so killing is guilty of murder.”
The degrees of murder and the punishments are fixed by N. J. S. 2A:113-2, which reads:
“Murder which is perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, or which is committed in perpetrating or attempting to perpetrate arson, burglary, kidnapping, rape, robbery or sodomy, is *67inurcler in the first degree. Any other kind of murder is murder in the second degree. A jury finding a person guilty of murder shall designate by their verdict whether it be murder in the first degree or in the second degree.”
The statutes make no distinction between those who do the actual killing and those who do not where the killing occurs in the commission or attempt to perpetrate any of the crimes enumerated therein. Under these sections one who aids, abets, counsels or procures another to commit murder provided he is near enough to render assistance, is a principal and not an accessory. State v. Giberson, 99 N. J. L. 85 (E. & A. 1924); State v. Mule, 114 N. J. L. 384 (E. & A. 1935).
The appellant further argues that the commission of the crime, in this instance robbery, provided the criminal or felonious intent for the crime of murder and that under the provisions of N. J. S. 2A :85-4 the defendant is deemed incapable of committing the crime of robbery. He relies principally- upon the case of People v. Roper, 259 N. Y. 170; 181 N. E. 88 (Ct. App. 1932), and many other cases in other jurisdictions not dealing with the crime of murder.
But our law is to the contrary. In State v. Mowser, 92 N. J. L. 474, 479, 483 (E. & A. 1919), it is held that the heinous offense is the killing and the crime of robbery, while it is an essential and integral part of the principal offense, is not a distinct affair but grows out of the same transaction. All murder at the common law was a capital offense and there was no grading of murder or definition of degrees of the crime, and such is the situation in England today. The reason for grading or fixing degrees of murder is to provide different punishments in different situations, and I do not challenge the legislative competency in this respect. The history of legislation of this type is discussed at some length in 22 Fordham L. Rev. 274.
Our Legislature, following this theory, set up two classifications of murder, murder of the first degree and murder of the second degree, and it made the crime of robbery a constituent element of murder in the first degree where death *68results from the perpetration or the attempt to perpetrate a robbery. In so doing it reiterated the doctrine of the common law that if death results in the prosecution of a felonious intent or in its consequences naturally tended to bloodshed, it will be murder. 4 Chitty's Blackstone *193. It made murder in the first degree a capital offense punishable by death unless the jury recommends life imprisonment. N. J. S. 2 A :113-4. We have but two capital offenses in this State; they are murder in the first degree, N. J. S. 2A :113 — 1, 2, 4, and treason, N. J. S. 2A :148-1.
Whether in the matter of punishment of murder the Legislature feels it desirable to place children in a different classification is purely a matter of public policy and within the legislative power. But insofar as guilt for the commission of the crime of murder is concerned I cannot disregard the enormity of the offense by fine spun legal reasoning and agree that it can be treated as mere juvenile delinquency.
I am unable to subscribe to nor can I find support for the legal theory by which the Legislature can declare that those young in 3rears but old in crime and depravity are incapable of committing the crime of murder. Many such are experienced criminals. A prominent jurist recently said: “The whole problem of juvenile and adolescent delinquency has become worse and is now a scandal.”
x\ peaceful citizen has the right to be protected by his government and to have a spade called a spade, and if young hoodlums are mentally incapable of a criminal intent they should be put to the burden of establishing that proposition in a court of law under established rules and are only entitled as a matter of right to the constitutional guarantees afforded to other citizens.
I would affirm the order of the court below in denying the motion for the transfer of the indictments to the Juvenile and Domestic Relations Court.