dence, however, but may be proved by circumstances, like any other fact.42 If such capacity is shown, a child within these ages is just as fully responsible as an adult, the maxim being "malitia supplet aetatem." 43 And it has been held that the presumption of incapacity decreases with the increase of years.44 § 109. Presumption of capacity. Children over fourteen years of age, or the age fixed by statute in lieu thereof, are in substantially the same position with regard to criminal responsibility as an adult. evidence of his mental capacity and guilty knowledge was that he was a boy of average capacity for his age (which, as the court said, amounted to nothing), and that he put his hand over the girl's mouth, while his elder brother attempted to rape her. 42 Darden v. State, 12 Ala. App. 165, 68 So. 550; State v. Nelson, 88 S. C. 125, 70 S. E. 445; Wusnig v. State, 33 Tex. 651; Ragsdale v. State, 61 Tex. Cr. 145, 134 S. W. 234. Whether a child had such capacity must generally be determined from his conduct, and the circumstances surrounding the commission of the act. See Carr v. State, 24 Tex. App. 562, 7 S. W. 328, 5 Am. St. Rep. 905. Testimony of a witness that the defendant was a bright boy mentally, and that he talked with good sense, etc., is admissible to show capacity. Neville v. State, 148 Ala. 681, 41 So. 1011. 48"If the intelligence to apprehend the consequences of acts, to reason upon duty, to distinguish between right and wrong, if the consciousness of guilt and innocence be clearly manifested, then capacity is shown." State v. Aaron, 4 N. J. L. 231, 7 Am. Dec. 592. In York's Case, Fost. C. L. 70, a boy of ten years, who, after killing a little playmate, hid the body, was convicted of murder, and executed, and it was considered that the circumstances showed a consciousness of guilt, and knowledge of right and wrong. In another English case, a child of eight was convicted of arson. Emlyn on 1 Hale P. C. 25, note. See also Year Book 12 Edw. III, 626. In this country, also, there are cases in which children of such tender years have been convicted, and even hanged. See State v. Guild, 10 N. J. L. 163, 18 Am. Dec. 404, where a boy of twelve was hung for murder; Godfrey v. State, 31 Ala. 323, 70 Am. Dec. 494, where a child of eleven was convicted of murder, and the conviction was sustained; State v. Nickleson, 45 La. Ann. 1172, 14 So. 134, where a boy between ten and twelve was convicted of arson; State v. Hicks, 125 N. C. 636, 34 S. E. 247, where a girl of eleven was convicted of murder in the second degree; Ragsdale v. State, 61 Tex. Cr. 145, 134 S. W. 234, where a boy was convicted of burglary; and State v. Coleman, 54 S. C. 162, 31 S. E. 866, where a boy was convicted of having carnal knowledge of an unmarried woman under fourteen years of age. Other cases in which conviction of children of tender years have OCcurred are Martin v. State, 90 Ala. 602, 8 So. 858, 24 Am. St. Rep. 844; State v. Milholland, 89 Iowa 5, 56 N. W. 403. 44 McCormack v. State, 102 Ala. 156, 15 So. 438; Martin v. State, 90 Ala. 602, 8 So. 858, 24 Am. St. Rep. 844; State v. Goodsell, 138 Iowa 504, A child who has reached this age is presumed to be doli capax, and therefore responsible, unless he shows, as he may, that he was not of sufficient capacity. To escape responsibility, he has the burden of satisfying the jury that he did not have sufficient intelligence to understand the nature and consequences of his act, and to know that he was doing wrong.45 § 110. Incapacity other than mental-In general. There are some offenses which an infant cannot commit because of incapacity other than mental incapacity. Blackstone says: "The law of England in some cases privileges an infant under the age of twenty-one as to common misdemeanors, so as to escape fine, imprisonment, and the like, and particularly in cases of omission, as not repairing a bridge, or a highway, and other similar offenses; for, not having the command of his fortune till twenty-one, he wants the capacity to do those things which the law requires." 46 And it is doubtful if a minor can be convicted of vagrancy, certainly not if he has a parent.47 It has been held that a minor cannot be convicted for not supporting his wife if there is no evidence that he has been emancipated, or that he owns any property.48 But according to the weight of authority a minor may be convicted of this offense.49 116 N. W. 605; State v. Aaron, 4 N. J. L. 231, 7 Am. Dec. 592. 45 Alabama. Ragsdale v. State, 12 Ala. App. 1, 67 So. 783. Arkansas. Gilchrist v. State, 100 Ark. 330, 140 S. W. 260. Delaware. State v. Di Guglielmo, 4 Pennew. 336, 55 Atl. 350; State v. Kavanaugh, 4 Pennew. 131, 53 Atl. 335. Georgia. Vinson v. State, 124 Ga. 19, 52 S. E. 79; Irby v. State, 32 Ga. 496. Indiana. Bottorff v. South Const. Co., 184 Ind. 221, 110 N. E. 977. Kentucky. Com. v. Ferguson, 135 Ky. 34, 121 S. W. 967, 24 L. R. A. (N. S.) 1101, 21 Ann. Cas. 434. Minnesota. State v. Kluseman, 53 Minn. 541, 55 N. W. 741. North Carolina. State v. Yeargan, 117 N. C. 706, 23 S. E. 153, 36 L. R. A. 196. Rhode Island. State v. Mariano, 37 R. I. 168, 91 Atl. 21. Tennessee. State V. Davis, 104 Tenn. 501, 58 S. W. 122; State v. Goin, 9 Humph. 175. Texas. Neal v. State (Tex. Cr.), 101 S. W. 212. Vermont. State v. Kelsie, 93 Vt. 450, 108 Atl. 391; State v. Learnard, 41 Vt. 585. For a child above that age to state that he did not know the act was wrong will have no tendency to remove the presumption of capacity. State v. Kluseman, 53 Minn. 541, 55 N. W. 741. 46 4 Bl. Com. 22; 1 Hale P. C. 20-22. 47 Teasley v. State, 109 Ga. 282, 34 S. E. 577. And see § 1327 et seq., infra. 48 People v. Todd, 61 Mich. 234, 28 N. W. 79. 49 Land v. State, 71 Fla. 270, 71 So. 279, L. R. A. 1916 E 760. He is entitled to his own earnings in so far as they are necessary for his Since an infant is liable for his torts, it has been held that infancy is no defense to a charge of bastardy in a state where bastardy proceedings are regarded as civil rather than criminal.50 § 111. Physical incapacity. A boy cannot be guilty of rape, as principal in the first degree, unless he has physical capacity to have sexual intercourse with a woman. At common law a boy under fourteen years of age was conclusively presumed to be incapable of committing this crime, but in this country some of the courts have repudiated this doctrine, and allow capacity in fact to be shown.51 § 112. Effect of privilege as to contracts. Although an infant is not civilly liable on his contracts, his privilege in this respect does not exempt him from criminal responsibility for obtaining money or property by false pretenses, 52 or swindling.53 And it has been held that an infant may be convicted for failure to support his wife though the marriage is voidable because of the infancy of the parties.54 But it has been held that an infant cannot be guilty under a statute punishing any person who shall dispose of property own support and that of his wife and children, even though he married without his father's consent. Com. v. Graham, 157 Mass. 73, 31 N. E. 706, 16 L. R. A. 578, 34 Am. St. Rep. 255. This is true although the marriage is voidable because of the infancy of the parties. State v. McPherson, 72 Wash. 371, 130 Pac. 481, Ann. Cas. 1914 D 587. 50 Chandler v. Com., 4 Metc. (61 Ky.) 66. 51 See § 897, infra. 52 People v. Kendall, 25 Wend. (N. Y.) 399, 37 Am. Dec. 240. A minor who has reached the age of criminal responsibility may be convicted of the statutory crime of proeuring money or other articles of value on a contract to perform services, with intent to defraud the hirer, though such contract is voidable. Anthony v. State, 126 Ga. 632, 55 S. E. 479. Vinson v. State, 124 Ga. 19, 52 S. E. 79. An infant who induces a person to purchase land from him and pay for the same by falsely representing that he is of age may be convicted of obtaining money under false pretenses. Com. v. Ferguson, 135 Ky. 32, 121 S. W. 967, 24 L. R. A. (N. S.) 1101, 21 Ann. Cas. 434. 53 He may be convicted of swindling by substituting another horse for one that he had sold. Neal v. State (Tex. Cr.), 101 S. W. 212. A minor who induces a person to sell him certain personal property by falsely representing that he owns certain other property on which he gives a mortgage to secure the purchase price of the property bought, may be convicted of swindling, although the mortgage is voidable and the articles purchased are not necessaries. Lively v. State (Tex. Cr.), 74 S. W. 321. 54 State v. McPherson, 72 Wash. 371, 130 Pac. 481, Ann. Cas. 1914 D 587. upon which he has given a chattel mortgage, since an infant has a right to avoid a mortgage given by him, and a disposal of the property by him amounts to a disaffirmance of the mortgage.55 III. INSANITY AND OTHER MENTAL DEFECTS OR DISORDERS. § 113. As a defense in general. A man is not criminally responsible for an act, if he was so insane, at the time he committed the act, that he was incapable of entertaining a criminal intent.56 And gen 55 State v. Plaisted, 43 N. H. 413; State v. Howard, 88 N. C. 650; Jones v. State, 31 Tex. Cr. 252, 20 S. W. 578. 56 United States. Davis v. United States, 160 U. S. 469, 40 L. Ed. 499, 16 Sup. Ct. 353. California. People v. Kelley, 7 Cal. App. 554, 95 Pac. 45. Illinois. Chase v. People, 40 Ill. 352. Indiana. Fritz v. State, 178 Ind. 463, 99 N. E. 727; Stevens v. State, 31 Ind. 485, 99 Am. Dec. 634. Mississippi. Bishop v. State, 96 Miss. 846, 52 So. 21. Montana. State v. Keerl, 29 Mont. 508, 75 Pac. 362, 101 Am. St. Rep. 579. New York. People v. Nyhan, 171 N. Y. Supp. 466. North Carolina. State v. Cooper, 170 N. C. 719, 87 S. E. 50, 8 A. L. R. 1214. Oklahoma. Roe v. State, Okla. Cr., 191 Pac. 1048; Adair v. State, 6 Okla. Cr. 284, 118 Pac. 416, 44 L. R. A. (N. S.) 119. Pennsylvania. Com. v. Tompkins, 265 Pa. 97, 108 Atl. 350. Washington. State v. Strasburg, 60 Wash. 106, 110 Pac. 1020, 32 L. R. A. (N. S.) 1216, Ann. Cas. 1912 B 917. West Virginia. Gruber v. State, 3 W. Va. 699. England. Beverley's Case, 4 Coke 124. There is no criminal responsibility where the accused was not of sound mind, but was affected. with insanity and such affection was the efficient cause of the act, and he would not have done the act but for it. Lilly v. People, 148 Ill. 467, 36 N. E. 95; Hopps v. People, 31 Ill. 391, 83 Am. Dec. 231. One who has been adjudged insane cannot be punished for an offense committed by him while out on bail. Hazlewood v. State, 79 Tex. Cr. 483, 186 S. W. 201. But the fact that the defendant was ordered committed to an asylum immediately prior to the commission of the crime does not of itself exempt him from responsibility, where such commitment does not conclusively establish that he was insane at all, but the question remains one for the jury. Also he may have been suffering from partial insanity such as would justify his detention but would not relieve him from responsibility. People v. Willard, 150 Cal. 543, 89 Pac. 124. In State v. Strasburg, 60 Wash. 106, 110 Pac. 1020, 32 L. R. A. (N. S.) 1216, Ann. Cas. 1912 B 917, a statute attempting to take away from persons erally this is true regardless of the cause of the insanity, or how it was produced.57 But it has been held that insanity arising during the course of a difficulty voluntarily brought on by the defendant, and as a result of a blow rightfully inflicted by his adversary, is not an excuse for his after conduct in such difficulty.58 As a rule, insanity, if found to exist, is a complete defense, entitling the defendant to an acquittal, and cannot operate to reduce the degree of the crime,59 or be used as an extenuating circumstance.60 But, according to some of the courts, the existence of a mental disorder not amounting to legal insanity, and hence not sufficient to relieve from responsibility, may reduce the grade or degree of a crime by negativing the existence of a specific intent or of premeditation or deliberation necessary to constitute the higher offense.61 accused of crime the right to interpose the defense of insanity, and providing for the commitment of the accused to an asylum by the judge trying the case if, in his judgment, he was insane when the offense was committed, was held to violate the constitutional provisions as to due process of law and guaranteeing the right to a jury trial, and to be void. 57 Duthey v. State, 131 Wis. 178, 111 N. W. 222, 10 L. R. A. (N. S.) 1032; Schissler v. State, 122 Wis. 365, 99 N. W. 593. Though it was the result of his own wrongful or illegal acts. State v. Porter, 213 Mo. 43, 111 S. W. 529, 127 Am. St. Rep. 589. As to insanity produced by the use of drugs, see § 138, infra. As to insanity produced by the use of intoxicating liquors, see § 130, infra. 58 State v. Coyle, 86 S. C. 81, 67 S. E. 24, 138 Am. St. Rep. 1022. 59 It cannot operate to reduce a homicide from murder in the first degree to murder in the second degree or to manslaughter. People v. Kelley, 7 Cal. App. 554, 95 Pac. 45; United States v. Lee, 4 Mackey (15 D. C.) 489, 54 Am. Rep. 293; Sage v. State, 91 Ind. 141; Spencer v. State, 69 Md. 28, 13 Atl. 809; Com. v. Cooper, 219 Mass. 1, 106 N. E. 545; State v. Maioni, 78 N. J. L. 339, 74 Atl. 526, 20 Ann. Cas. 204; Com. v. Barner, 199 Pa. 335, 49 Atl. 60; Com. v. Hollinger, 190 Pa. 155, 42 Atl. 548; Com. v. Wireback, 190 Pa. 138, 42 Atl. 542, 70 Am. St. Rep. 625; Witty v. State, 75 Tex. Cr. 440, 171 S. W. 229; Cannon v. State, 41 Tex. Cr. 467, 56 S. W. 351. 60 Gage v. State, 91 Ind. 141; State v. Cooper, 170 N. C. 719, 87 S. E. 50, 8 A. L. R. 1214; Kirby v. State, 68 Tex. Cr. 63, 150 S. W. 455. 61 Though a person's mental condition may not be such as to excuse a homicide, it may prevent the deliberation and premeditation necessary to constitute murder in the first degree, and hence prevent his conviction for murder in that degree. State V. Saxon, 87 Conn. 5, 86 Atl. 590; Com. v. Gilbert, 165 Mass. 45, 42 N. E. 336; State v. Schilling, N. J. L. 112 Atl. 400; State v. Anselmo, 46 Utah 137, 148 Pac. 1071; Hempton v. State, 111 Wis. 127, 86 N. W. 596. And see Hopt v. People, 104 U. S. 631, 26 L. Ed. 873. In Andersen v. State, 43 Conn. 514, 21 Am. Rep. 669, it is said that in a murder case the jury ought to consider the question of moral mania in |