the consciousness of guilt and innocence be clearly manifested, then this capacity is shown. In the language of the books, the accused is capax doli, and as a rational and moral agent, must abide the results of his own conduct.

This capacity to commit a crime, it appears to the court, necessarily supposes the capacity to confess it. He who is a rational and moral agent and can merit the infliction of legal sanctions must be able to detail his motives and acts and must be judged by them. If, therefore, the defendant was of an age to be punished, he was of an age to confess his guilt. It does not seem necessary here to investigate the cases in the books, where persons of very tender years have been punished. It is sufficient to remark, that juries under the direction of judges, whose distinguishing attribute was the love of mercy, have convicted those much younger than the prisoner before us and they have made the last solemn atonement to violated law. But they were cases where the jury were satisfied that the legal capacity existed. And so ought the jury and the court here be satisfied, and satisfied beyond the possibility of question. If the slightest cloud of doubt rested upon the mind on this subject, it should insure acquittal; it ought to prove the pillar which should conduct the prisoner through all his dangers to the place of security and safety.

The confessions of any one, especially of one so very young, and in an offense so highly penal, ought to be received with the strictest caution and investigated with a desire to obviate their force. And although not induced by the impression of threats, or the delusions of hope falsely encouraged, yet if from any circumstances the jury believe that they were incorrectly made, they should be disregarded; but being legally admissible it is for the jury to ascertain their weight and deduce the necessary conclusions, and it is for the court clearly to explain the legal import of the evidence. This court feels no consciousness of neglect on this point. As far as it had ability to perform the task it left no matter of evidence and no inference of law unexplained. It was pressed upon the jury and we have no doubt that they remembered, "that a mere naked confession ought seldom to take away life;" in the case of so young an infant never. It ought to be accompanied by evidence of facts which could not fail to evince its truth. And this is believed to be the doctrine contained in Hale,1 which was so strongly pressed by the prisoner's counsel.

In reviewing the propriety of admitting the confessions in this case it will be recollected that evidence had been submitted to the jury which was intended to prove both his capacity and the fact charged against

1 p. 27.

him. I allude to the evidence of his playing with the deceased, his working in the field where the crime was committed, his manner when told that the child was lost, and also when he was found, his subsequent conduct in the evening and morning, and the estimate of many of the witnesses of his capacity. This evidence laid such a foundation for his confessions that the court did not feel authorized to withhold them for the jury. Whether under the instructions of the court, they gave them their proper weight, is not here in disptte.

New trial granted.

CHILD BETWEEN SEVEN AND FOURTEEN-PRESUMPTION OF INCAPACITY TO COMMIT CRIME.

R. v. OWEN.

[4 C. & P. 236.]

Before Mr. Justice LITTLEDALE.

1. Child Between Seven and Fourteen-Question of Fact. If a child more than seven and under fourteen years of age is indicted for felony it will be left to the jury to say whether the prisoner has a guilty knowledge that he or she was doing wrong. 2. The Presumption of Law is that a child of that age has not such guilty knowledge unless the contrary is proved by the evidence.

Indictment for stealing coals. The prisoner was ten years of age and it was proved that on the 28th of January she was standing by a large heap of coal belonging to Messrs. Harford & Brothers, and that she put a basket upon her head. This basket was found to contain a few knows of coal, which in answer to a question put to her by the witness for the prosecution, she said she had taken from the heap.

LITTLEDALE, J., was about to call upon the prisoner for her defence,

when

Carrington, amicus curiæ, suggested that she was entitled to an acquittal. He submitted that a child under seven years of age could not legally be convicted of felony, and that in cases where the accused was between the ages of seven and fourteen, it was incumbent on the prosecutor to prove, not only that the offense was committed, but also that the offender had, at the time, a guilty knowledge that he or she was doing wrong.

LITTLEDALE, J. I can not hold that a child of ten years of age is incapable of committing a felony. Many have been convicted under that age.

Carrington. No doubt that is so. A boy named York who was only ten years old was convicted of a murder, but in that case there was the strongest evidence of guilty knowledge.

LITTLEDALE, J. I think I must leave it to the jury.

LITTLEDALE, J. (in summing up), said: "In this case there are two questions, first, did the prisoner take these coals; and secondly, if she did had she at the time a guilty knowledge that she was doing wrong. The prisoner, as we have heard, 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 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 offence, had a guilty knowledge that he or she was doing wrong."

Verdict not guilty, and the foreman of the jury added, "We do not think that the prisoner had any guilty knowledge."

RESPONSIBILITY OF INFANTS FOR CRIME-FALSE SWEARING. WILLET v. COMMONWEALTH.

[13 Bush, 230.]

In the Court of Appeals of Kentucky, January Term, 1877.

1. An Infant Under Seven Years of Age is conclusively presumed to be incapable of committing a crime.

2. Between the Age of Seven and Fourteen the State may rebut this presumption by showing a guilty knowledge on the part of the accused.

3. False Swearing - Infant.-W., a boy twelve years of age, was indicted for false swearing. The judge gave no instruction to the jury as to the effect of his age on the crime, and he was convicted. Held, error.

4. A Sense of Moral guilt on the part of the infant does not authorize a conviction, unless he understands his legal responsibility.

Judge PRYOR delivered the opinion of the court.

Jesse Willet, a boy about twelve years of age, was indicted in the Pendleton Circuit Court upon a charge of false swearing, and sentenced to confinement in the State prison for fifteen months.

There being testimony conducing to show that the accused had made conflicting statements, with reference to the same matter, when examined as a witness before the grand and petit juries of Pendleton County, his counsel asked the court to say to the jury: "That the law presumed

the prisoner incapable of the crime of false swearing if, at the time, he was under fourteen years of age.” This instruction was refused, and no instruction given presenting this view of the case to the jury.

The doctrine recognized in the elementary books upon the question involved is, "that infants are prima facie unacquainted with guilt, and can not be convicted, unless at the time the offense was committed they had a guilty knowledge that they were doing wrong."

This is not even a disputable presumption when applied to an infant under seven years of age; but between seven years and fourteen the Commonwealth may rebut the presumption by showing a guilty knowl edge on the part of the accused.

Russell says that this presumption will diminish with the advance of the offender's years, and will depend upon the particular facts and circumstances of his case.1

This same author suggests that "the proper course is to leave the case to the jury to say whether, at the time of the commission of the offense, such person had guilty knowledge that he was doing wrong." The test given by Lord Hale is, "whether the accused at the time was capable of discerning between good and evil."

Taylor, in his work on Evidence, questions the philosophy of the rule laid down by Hale, for the reason that it is too indefinite, and may be applied" either to legal responsibility or to moral guilt." 2

Few infants between the ages of seven and fourteen years, with ordinary intellects, are so ignorant as not to know that to lie or steal is wrong; and, therefore, in applying the rule laid down by Lord Hale or Russell, the infant derives no benefit from the legal presumption, and, instead of being favored by the law, is dealt with in the same manner as those more advanced in life.

A sense of moral guilt only on the part of the infant, in the absence of a knowledge of his legal responsibility for his wrongful act, will not authorize a conviction.

When the prosecution satisfies the jury that the infant, at the time he committed the offense, knew it was wrong, and was aware of his legal responsibility for the commission of the crime, the legal presumption of innocence on account of his tender years no longer exists; but, in the absence of such proof, the legal presumption must produce an acquittal. The court below having erred in refusing to instruct the jury on this branch of the case, the judgment is reversed and cause remanded, with directions to award a new trial, and for further proceedings consistent with this opinion.

11 Russell, p. 2.

21 Taylor on Evidence, p. 190.

CHILD OF TEN YEARS-INSTRUMENT FOR COINING-MARRIED

WOMAN.

R. v. BOOBER.

[4 Cox, C. C. 273.]

Before Mr. Justice TALFOURD (London), February, 1850.

1. Possession of Coining Instruments-Child. - Coining implements were found in a house occupied by a man, his wife, and a child ten years old. They were all indicted for the felonious possession of coining instruments. The judge directed the jury to acquit the child.

2. Same-Liability of Wife. If coining instruments are found in a house occupied at the time by a man and his wife, the presumption is that they are in the possession of the husband alone, unless there are circumstances to show that the wife was acting separately and without her husband's sanction; they can not both be convicted.

3. The Fact of a Wife Attempting to Break up coining instruments at the time of her husband's apprehension with the object of screening him is no evidence of a guilty possession.

The prisoners, James Boober, Mary and James Boober, Jr., were indicted for feloniously having in their possession a mould on which was impressed the obverse side of a shilling. It appeared in evidence that the two first named prisoners resided together as man and wife, and the third prisoner was their son, a boy of ten years old. He was apprehended whilst in the act of passing a counterfeit half crown, and on the officer going to the house where he said he resided, the elder male prisoner was found in an upper room. In the lower room were found various coining implements, and amongst them the mould in question, and whilst the officers were searching the house the female prisoner came in and was observed soon afterwards to break something on the floor which turned out to be a mould used in casting counterfeit shillings. Counterfeit money was found upon her, but none upon the man.

Payne, who appeared for the woman and the younger prisoner, urged in behalf of the latter that, under the circumstances, the charge could not be sustained against him.

TALFOURD, J. I do not think that a boy of this age can be convicted upon such evidence as this. He is acting under the control of his parents, they are living in the house where the coining implements are found, and it would be going too far to say that one so young was a joint possessor with them of the property. A verdict of acquittal of the boy was then taken, and he was put into the witness box by the elder prisoner to prove that the latter had been absent from home for several weeks prior to Friday, the 11th January, on which night he returned. Payne submitted on, behalf of the female prisoner, that if the male prisoner was found guilty on this charge, she must be acquitted.