In Re William A.

ELDRIDGE, Judge. This case presents the question of whether the common law infancy defense is applicable in juvenile delinquency proceedings. On July 6, 1984, the defendant, William A., accompanied his father and uncle to a food warehouse in Baltimore City. There, his father and uncle cut and removed copper piping from the premises.

William assisted by carrying various materials from the storage facility. When the police arrived, they observed William’s father and uncle carrying copper piping from the premises and William carrying a box of paper for a copying machine. A second incident occurred on September 25, 1984. On that date, William A. accompanied his uncle to the premises of a car wash.

When police arrived at the scene, they found that the car wash had been broken into, and they found William in a van nearby. His uncle had apparently fled the scene. When the police questioned William, he explained that he was “junking” with his uncle “as he always did.” He also stated that he had been paid to accompany his uncle. At the time of both incidents, William was 13 years old. ⁶⁹² On October 4, 1984, the State filed two petitions alleging that William A. had committed acts which, if committed by an adult, would be crimes, and that, therefore, William was delinquent.

See Maryland Code (1974, 1984 Repl. Vol.), § 3-801(k) and (l) of the Courts and Judicial Proceedings Article. The petitions alleged that the acts, if they had been committed by an adult, would constitute the crimes of storehouse breaking, felony theft, and malicious destruction of property. On February 27, 1985, William was found delinquent by a juvenile master.

William filed exceptions to the Master’s recommended findings and conclusions, and a hearing was held in the Circuit Court for Baltimore City. At the hearing, the defendant argued, inter alia, that, because juvenile delinquency adjudications are based upon acts constituting crimes if committed by adults, the infancy defense should be available to children in delinquency proceedings. The defendant argued that children between ages 7 and 14 were entitled to a presumption of incapacity in juvenile delinquency proceedings and that the State in the instant cases had failed to rebut the presumption. The circuit court overruled the defendant’s exceptions, concluding that the infancy defense was inapplicable in juvenile delinquency proceedings.

At a later disposition hearing, William was committed to the Juvenile Services Administration. William appealed to the Court of Special Appeals. In an unreported opinion, the appellate court affirmed the circuit court’s judgment. The court held that the infancy defense does not apply in delinquency proceedings, relying on an earlier Court of Special Appeals decision to the same effect, In re Davis, 17 Md.App. 98 , 299 A.2d 856 (1973).

Thereafter, we granted William’s petition for a writ of certiorari. The common law defense of infancy, or doli incapax as it was otherwise known, was explained by the Court of Special Appeals in Adams v. State, 8 Md.App. 684, 687-689 , 262 A.2d 69 , cert. denied, 258 Md. 725 , cert. denied, 400 ⁶⁹³ U.S. 928, 91 S.Ct. 193 , 27 L.Ed.2d 188 (1970), as follows (footnotes omitted): “Since the Code of Hammurabi (circa 2250 B.C.) and down through the ages, society, under the law, has viewed and treated offenders of tender years in a light differently and more favorably than that accorded adults accused of breaching the law. Over the centuries and during the evolution of the common law of England, there emerged a rule of law governing ‘the responsibility of infants’ under which an individual below the age of seven years cannot be found guilty of committing a crime; an individual above fourteen years charged with a crime is to be adjudged as an adult; and between the ages of seven and fourteen there is a rebuttable presumption that such individual is incapable of committing a crime. In the absence of any pertinent legislative enactment in this State, the common law principles, as stated above, would appear to govern in Maryland and we so hold. “In the case at bar, the appellant was shown to be thirteen years, ten and a half months of age at the time the crime was committed.

It was, therefore, incumbent upon the State to produce sufficient evidence to overcome the presumption that the appellant was doli incapax, an expression ordinarily employed by the text writers. The proof necessary to meet this burden has been variously phrased: It must be shown that the individual ‘had discretion to judge between good and evil;’ ‘knew right from wrong;’ had ‘a guilty knowledge of wrong-doing;’ was ‘competent to know the nature and consequences of his conduct and to appreciate that it was wrong.’ Perhaps the most modern definition of the test is simply that the surrounding circumstances must demonstrate, beyond a reasonable doubt, that the individual knew what he was doing and that it was wrong. “It is generally held that the presumption of doli incapax is ‘extremely strong at the age of seven and diminishes gradually until it disappears entirely at the age of fourteen * * *.’ Since the strength of the pre ⁶⁹⁴ sumption of incapacity decreases with the increase in the years of the accused, the quantum of proof necessary to overcome the presumption would diminish in substantially the same ratio.” See L. Hochheimer, A Manual of Criminal Law as Established in the State of Maryland, § 16 (1889); I Bishop on Criminal Law §§ 368-370, at 260-262 (9th ed. 1923); W. LaFave, A. Scott, Criminal Law § 4.11, at 398-403 (2d ed. 1986); R. Perkins, Criminal Law 837-840 (2d ed. 1969); Ludwig, Rationale of Responsibility For Young Offenders, 29 Neb.L.Rev. 521, 526-529 (1950). See also, e.g., Godfrey v. State, 31 Ala. 323 (1858); State v. Fowler, 52 Iowa 103 , 2 N.W. 983 (1879); Angelo v. People, 96 Ill. 209 (1880); Heilman v. Commonwealth, 84 Ky. 457 , 1 S.W. 731 (1886); State v. Guild, 10 N.J.L. 163 (1828); State v. Pugh, 7 Jones (52 N.C.) 61 (1859); State v. Toney, 15 S.C. 409 (1881); Juvenile Court of Shelby County v. State, 139 Tenn. 549 , 201 S.W. 771 (1918); Gardiner v. State, 33 Tex. 692 (1871); State v. Learnard, 41 Vt. 585 (1869); Law v. Commonwealth, 75 Va. 885 (1881). With the advent of juvenile delinquency proceedings in lieu of criminal prosecutions, the issue arose in a number of jurisdictions as to whether, absent express statutory language, the infancy defense remained applicable in the delinquency proceedings.

Some courts, like the Court of Special Appeals in In re Davis, supra, took the position that the defense was inapplicable. See, e.g., Jennings v. State, 384 So.2d 104 (Ala.1980); Gammons v. Berlat, 144 Ariz. 148 , 696 P.2d 700 (1985); State v. D.H., 340 So.2d 1163 (Fla.1976); In Interest of Dow, 75 Ill.App.3d 1002 , 31 Ill.Dec. 39 , 393 N.E.2d 1346 (1979); In the Matter of Skinner, 272 S.C. 135 , 249 S.E.2d 746 (1978). The rationale of these cases is essentially the same, and was expressed by the Court of Special Appeals in Davis as follows ( 17 Md.App. at 104 , 299 A.2d at 860 ): “Under the [juvenile] statute, by its purpose and the very principles it advances, the child under the jurisdiction of a juvenile court is conclusively presumed doli incapax. ⁶⁹⁵ The child is delinquent, not because he committed a crime, but because he committed an act which would be a crime if committed by a person who is not a child, and because he requires supervision, treatment or rehabilitation. He must be doli capax to commit a crime, but not to commit a delinquent act.

The raison d’etre of the Juvenile Causes Act is 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.” Or, as another writer expressed it (Walkover, The Infancy Defense in the New Juvenile Court, 31 UCLA L.Rev. 503, 516-517 (1984)), “[b]ecause parens patriae theory depends on the notion that the child is being helped and thus is not being tried for a crime and punished as a criminal, there was no need to determine whether the child had the capacity to act in a culpable fashion. Indeed, assertion of the defense could be viewed as wrongfully precluding treatment for those very children most susceptible to the benefits of intervention, children who had committed wrongs without a clear sense of the wrongfulness of their acts.” In the instant case the State, essentially reflecting the above view, argues that the mental state of the defendant is irrelevant in a juvenile delinquency adjudicatory proceeding and that, therefore, the infancy defense has no place. The State asserts (brief, p. 4): “In effect, a juvenile proceeding is an acknowledgment that the person before the court is doli incapaz and therefore subject to treatment, not punishment.

As a result, the question of mental state is irrelevant to the question of whether a ‘delinquent act’ has been committed. The mental awareness of wrongdoing is relevant only to the question of whether a child needs guidance, treatment, or rehabilitation and, if so, the nature of the remedy.” ⁶⁹⁶ Other courts, however, have reached the contrary conclusion, holding that the defense of infancy is fully applicable in juvenile delinquency proceedings. See, e.g., In re R, 1 Cal.3d 855 , 464 P.2d 127 , 83 Cal.Rptr. 671 (1970); Matter of Andrew M, 91