seven, however, the law considers a child not possessed of sufficient reason to be accountable or answerable for his acts; and in Hungary, it is said that the date of the birth of the child runs from the date of baptism. The absurdity of this fiction was illustrated in 1866, in a case which occurred in the neighborhood of Presburg, in which a woman was charged with being the receiver of stolen goods. She had been, up to within the six months previous, a Jewess, when she was converted by a priest of the church of Rome. Therefore, the woman, on her trial, made the ingenious plea that she was an infant, not come to the years of discretion, and could not be legally convicted. The tribunal held her defense to be a good one, and acquitted her! § 129a. But the more sensible practice, as before suggested, has been adopted in most civilized countries, not to look so much to the age of the delinquent as to his strength of understanding and judgment; and yet it is a general rule that infants, who have not arrived to seven years of age, cannot be punished as criminals, for before that age they are not supposed to have a will that can concur with a forbidden act, in contemplation of law, and it is only from the age of fourteen that the law holds a person entirely responsible. Under that age infants are prima facie considered unacquainted with guilt, and incapable of crime; and the fact of guilty knowledge of the prisoner must be distinctly made out by the prosecution. (Rex v. Owen, 19 Eng. C. L. R. 493. Commonwealth v. McKeagy, 1 Ashmead's [Pa.] R. 248. State v. Aaron, 1 Southard's [N. J.] R. 231. State v. Doherty, 2 Overton's [Tenn.] R. 80.) This rule is especially observed and adhered to in capital cases. An infant of tender years cannot be guilty of murder, and when under seven years he will be excused from the guilt and punishment of felony, whatever circumstances proving discretion may appear, for, ex presumptione juris,-on account of the presumption of right, he cannot have discretion, and no averment must be received against that presumption. But, if above seven, and under fourteen, years of age, though prima facie not guilty, yet if it appear, by strong circumstances and pregnant evidence, that he had discretion to judge between good and evil, judgment of death, even may be given against him. (Reniger v. Fogossa, Plowdon's R. 19, note f.) In such cases the intellectual capacity of the child may be proved by the testimony of witnesses. (State v. Aaron, supra.) But herein the circumstances must be inquired of by the jury, and, according to the English cases, the infant is not to be convicted upon his confession; although, in the State of New Jer. sey, a boy of the age of twelve years and five months was convicted, on his own confession, of the crime of murder and executed. (State v. Guild, 5 Halstead's R. 163.) If an infant be indicted under the age of fourteen, and put upon his trial, the petit jury may either find him generally not guilty, or they may find the matter specially that he committed the fact, but that he was under the age of fourteen, scilicet ætatis, 13 annorum, and had not discretion to discern between good and evil; et non per felonian. (Bing. on Inf. 115.) With regard to capital crimes the law is, very properly, more minute and circumspect, distinguishing with greater nicety the several degrees of age and discretion, than in cases of inferior grade; but if it appear to the court and jury that the offender was doli capax, and could discern between good and evil when he committed the offense, he may be convicted and suffer death. Thus a girl of thirteen has been burnt for killing her mistress; and one boy of ten, and another of nine years old, who had killed their companions, have been sentenced to death, and he of ten years actually hanged, because it appeared on the trials that the one hid himself, and the other hid the body he had killed, which hiding manifested a consciousness of guilt, and a discretion to discern between good and evil; and there is an instance, in the seventeenth century, where a boy of eight years old was tried in England for firing two barns; and it appearing that he had malice, revenge and cunning, he was found guilty, condemned and executed. Thus, also, in the eighteenth century, in England, 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 this boy, merely on account of his tender years, might be of dangerous consequence to the public, by propagating a notion that children might commit such atrocious crimes with impunity, it was unanimously agreed by the judges that he was a proper subject of capital punishment. (4 Black. Com. 23, 24.) In the case of rape, the law presumes that an infant under the age of fourteen years is unable to commit the crime, and, therefore, it seems, at common law, he cannot be guilty of it; but this is upon the ground of impotency, rather than the want of discretion, for he may be a principal, in the second degree, ་ by aiding and assisting in this offense, as well as in other felonies, if it appear, by sufficient circumstances, that he had a mischievous intent. (1 Hale's R. 630.) Although, at common law, a person under fourteen years of age is conclusively presumed incapable of committing rape, yet, in this country, since males often arrive at puberty at an earlier age, the presumption is not conclusive, and may be rebutted by competent evidence. (The People v. Randolph, 2 Parker's Cr. R. 174.) Without proof of puberty, in such a case, the infant can only be convicted of a simple assault and battery. (Ib. Vide also Commonwealth v. Lanigan, 2 Law R. 49.) And in Massachusetts and Ohio it has been held that an infant under fourteen may be indicted for an assault with intent to commit a rape. (Commonwealth v. Green, 2 Pick. R. 380. Williams v. The State, 14 Ohio R. 222.) But it seems that such indictment will not be sustained in England. (Eldershaw's case, 14 Eng. C. L. R. 367. Phillips' case, 34 ib. 610. Jordan's case, 38 ib. 63.) Nor in New York. (The People v. Randolph, supra.) § 130. When an act is made felony or treason by a statute, it extends as well to infants if above the age of fourteen, as to others, but not to an infant under the age of discretion. (1 Hale's R. 706.) That is, this is the rule, unless the statute contains an exception in favor of infants. Said Chief Justice Nelson, in giving the opinion of the court in a case decided by the supreme court of the State of New York: "All the books agree that when an act is denounced as a crime, even of felony or treason, by a general statute, it extends as well to infants, if above years, as to others." (The People v. Kendall, 25 Wend. R. 399, 401.) It has, however, been held that general statutes that give corporal punishment are not to extend to infants; and therefore, if an infant be convicted of a ravishment of ward, he will not be imprisoned, though the statute of England upon the subject be general. (Stowell v. Zouch, Plowdon's R. 364.) But this must be understood when the corporal punishment is, as it were, collateral to the offense, and not the direct intention of the proceeding against the infant for his misdemeanor; in many cases of which kind, the infant under the age of twenty-one will be spared, though possibly the punishment be enacted by parliament. (10 Petersdorff's Abridgment, 402, note.) In other words, if the statute punishes corporally an act that was not an offense at common law, or that was an offense, but not before punished corporally, and does not constitute it an offense by name, which, by the common law, is punished corporally, an infant, if infants are not named in the statute, will not be punished corporally. Tenderness to infants led to this construction of the statutes, that minors should not be ousted of their common law privilege, unless the legislature had expressly declared that they should be. (Reeve's Dom. Rel. 258.) As a general rule, an infant at any age is not liable for a misdemeanor which consists in not doing what the law commands to be done, that is to say, for an offense which is a mere nonfeasance. (Foster, 70.) But when the offense is a notorious breach of the peace, such as a riot, or battery, an infant above the age of fourteen is as liable to suffer fine and punishment for such a misdemeanor, as a person of full age. (McPherson on Inf. 451.) And in the State of Tennessee in such a case, the property of the infant will be liable for the fine and costs. (Beardsley v. The State, 2 Yerg. R. 481.) In Alabama it was held, that an infant between the ages of seven and fourteen is prima facie incapable of committing a crime; but if, after allowing due consideration to his age, and to the additional fact that he is a slave, the evidence convinces the jury beyond a reasonable doubt, that he fully knew the nature and consequences of his act, and plainly showed intelligent design and malice in its execution, he may be convicted of murder. (Godfrey v. The State, 31 Ala. R. 323.) A minor may be indicted and punished for obtaining goods by false pretenses against the provisions of the statute of New York, in such a case; the statute containing no exception in favor of infants. (The People v. Kendall, 25 Wend. R. 399.) And in England an infant is liable to an indictment for neglecting to repair a bridge, which he is otherwise bound to repair, provided there is no other person against whom performance of repairs can be enforced. It is otherwise, however, when the land of the infant charged with the repair of the bridge is occupied by his guardian. (Rex v. Sutton, 30 Eng. C. L. R. 279.) In England it has been held in general terms that an infant, after he has arrived to the years of discretion, is liable criminally, for permissive waste, for escapes, for perjury, for not coming to church, for cheating with false dice, for batteries and for slanders. (Anonymous, 3 Salk. R. 196.) § 131. On the trial or examination of an infant for a crime, he may appear and defend himself in person, or by attorney; and it has been held in Virginia, to be error for the court to assign the infant a guardian, and try the case on a plea pleaded for him by the guardian. (Word v. The Commonwealth, 3 Leigh's R. 743.) In cases of simple misdemeanor, the infant may not, as a general thing, appear and plead to the indictment personally, though in cases of felony he must. In case infancy is set up as a defense to a criminal prosecution, the infancy must be proved by competent evidence. The mere opinion of a witness respecting the age of a person, judging from his appearance, unaccompanied by the fact on which the opinion is founded, is inadmissible evidence. (Morse v. The State, 6 Conn. R. 9.) As a general thing, the rule with respect to the indictment, arraigning and trial of infants on charges of crime, is the same as in case of adults. CHAPTER XII. ACTIONS ACTION IN FAVOR OF INFANTS-HOW INFANTS MUST SUE- § 132. Ir may be laid down as a general rule, that, in all cases personal in their nature, such as assaults, batteries, libels, verbal slander, and other injuries to the person, infants have their action the same as adults, and the same principle with respect to damages and the like applies to them as to adults. So when an infant has been emancipated by his parents he is entitled to his action for personal services in the same manner as though he was of full age. And whenever a party enters into a contract with a minor personally, or purchases property of him, or deals with him on his own account, such party must respond to him in an action the same as though he was an adult. So in all cases when an infant has the possession and control of his property, he may bring his action for its conversion, or any damage or injury to it, the same as though he was of full age. In a word, when the infant has a just cause |