PART I. OF CRIMES AND PUNISHMENTS. TITLE I. OF PERSONS LIABLE TO PUNISHMENT FOR CRIME. SECTION 26. Who are capable of committing crimes. 27. Who are liable to punishment. 26. (§§ 4, 5, 7, 9, 10). All persons are capable of committing crimes, except those belonging to the following classes: 1. Children under the age of fourteen years, in the absence of clear proof that at the time of committing charged against them, they knew its wrong fulness; 2. Idiots; 3. Lunatics and insane persons; 4. Persons who committed the act or made the omission charged, under an ignorance or mistake of fact which disproves any criminal intent; 5. Persons who committed the act charged, without being conscious thereof; 6. Persons who committed the act or made the omission charged, through misfortune or by accident, when it appears that there was no evil design, intention, or culpable negligence; 7. Married women (unless the crime be punishable Same. with death) acting under the threats, command, or coercion of their husbands; 8. Persons (unless the crime be punishable with death) who committed the act or made the omission charged, under threats or menaces sufficient to show that they had reasonable cause to and did believe their lives would be endangered if they refused. From this article we make the following extracts: 1. Their liability below the age of seven years.—It is laid down by most elementary writers on criminal law that if an infant be under seven years of age he cannot be guilty of felony, whatever circumstances may appear proving his discretion; for ex presumptione juris he cannot have discretion, and no averment shall be received against that presumption.-1 Hale's Pleas of the Crown, p. 27; Plowden, p. 19a; Dalton's Justice, Chap. 147, p. 334; 1 Hawk. P. C., p. 2; 4 Bl. Com., pp. 22, 23. It is conceived, however, that this question is not well founded, and that if an infant under seven is proved to have sufficient discretion, and to know good from evil, he is liable to prosecution, as well as above that age. The maxim, malitia supplet ætatem, applies as well to one under as to one above the age of seven years. There seems to be no reason why any one like Crichton, Pascal, or White, at a very early age exhibiting evidence of unusual mental development and strong powers of mind, and capacity of knowing good from evil, should not be as responsible for his intelligent acts on the day before as well as the day after his arrival at the age of seven years. The assumption of seven years as the commencement of criminal responsibility is entirely arbitrary, and the fact that elementary writers have quite generally agreed upon such a principle of law can hardly be relied upon as a defense should a case arise where the facts clearly show that an infant under seven had, with actual malice and knowledge of his wrongful act, committed an offense under the law. Besides, this point may be considered not entirely without direct authority, for there is a precedent in the Register, fol. 3096, of a pardon granted to an infant within seven years who was indicted for homicide, the jury having found that he did the act before he was seven years old.-1 Hale's Pleas of the Crown, p. 28 (N. E.) 2. Their liability between the ages of seven and fourteen.-But whatever may be the law relative to persons under the age of seven, all authorities agree that at that age criminal responsibility commences, and subject to the presumption in favor of infants, they are amenable for any and all crimes committed by them, whether felonies or misdemeanors. This may be considered: a. In the instances where infants under fourteen have been indicted. b. To convict children under fourteen, the prosecution must clearly prove that the infant, in doing the act, knew that he was doing wrong. c. The liability of infants for the crime of rape, d. The fact of guilty knowledge must be distinctly made out. The presumption of law in favor of infants under fourteen, and the necessity of satisfying the jury that the child, when committing the act, must have known that he was doing wrong, is well illustrated by the case of R. vs. Owen, 4 Carrington & Payne, p. 236 (1830), where a girl ten years of age was indicted for stealing coals. It was proved that she was standing by a large heap of coals belonging to the prosecutor, and that she had a basket upon her head containing a few coals which the girl herself said she had taken from the heap. Littledale, J., in summing up to the jury, remarked: "In this case, there are two questions: First, did the prisoner take the coals? and second, if she did, had she at the time a guilty knowledge that she was doing wrong? The prisoner is only ten years of age, and unless you are satisfied by the evidence that, in committing this offense, she knew that she was doing wrong, you ought to acquit her. Whenever a person committing a felony is under fourteen years of age, the presumption of law is that he or she has not sufficient capacity to know that it is wrong, and such person ought not to be convicted unless there be evidence to satisfy the jury that the party, at the time of the offense, had a guilty knowledge that he or she was doing wrong." The jury returned a verdict of "Not guilty," adding: "We do not think the prisoner had any guilty knowledge." So in People vs. Davis, Wheeler C. C., p. 230 (1823), in an indictment for larceny, the defendant being not yet fourteen years old by a few weeks. The taking was clearly proved, but no evidence was offered of his capacity to commit crime, and the jury was instructed that the law presumes an infant under fourteen incapable of committing crimes," and in order to show his liability, it was necessary to prove his capacity;" and there being no evidence either way upon the point the defendant was acquitted. The same principle was adopted in Walker's Case.-5 City Hall Recorder, p. 137 (1820). This doctrine was again distinctly affirmed in the Queen vs. Smith, 1 Cox C. C., p. 260 (1845), where a boy ten years of age was indicted for maliciously setting fire to a hayrick. The act of firing was clearly proved, but there was no proof of a malicious intention. Erle, J., told the jury: "Where a child is under the age of seven years the law presumes him incapable of committing a crime; after the age of fourteen he is presumed to be responsible for his actions as entirely as if he were forty, but between the ages of seven and fourteen no presumption of law arises at all, and that which is termed a malicious intent, a guilty knowledge that he was doing a wrong, must be proved by the evidence, and cannot be presumed from the mere commission of the act." This fact of guilty knowledge may often be proved from the circumstances of the case: as, if the prisoner conceals himself, denies the act, or in any way shows a consciousness that he was doing wrong. Thus, in the case of State vs. Doherty, 2 Overton (Term 1806), where a girl between twelve and thirteen years of age was indicted for murder, the jury was instructed: "That if an infant is under fourteen and not less than seven, the presumption of law was that he could not discern between right and wrong. But this presumption is removed, if from the circumstances it appears the person discovered a consciousness of wrong." That this fact of guilty knowledge may appear from the circumstances of the case, see Stage's Case, 5 City Hall Recorder, p. 177 (1821), where a boy of the age of eight years was indicted for the larceny of a lady's dressing box and jewelry. The owner detected the boy going out of the house with the box under his am; she seized him, and he tried to bite her and retain the box by force. He then began to cry, and said another boy told him to take away the box. No other evidence of capacity was offered. The jury were told that they |