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That eminent jurist, Sir William Blackstone, in discussing the question what persons are or are not capable of committing crimes; or, which is the same thing, who are exempted from the censures of the law upon the commission of those acts which in other persons would be severely punished, lays down the general rule that no person shall be excused from punishment for disobedience to the laws of his country, except such as are expressly defined and exempted by the laws themselves."

The same author further says, that all the several pleas and excuses which protect the committer of a forbidden act from the punishment which is otherwise annexed thereto, may be reduced to the single consideration of the want or defect of will."

There are three cases in which the will does not join with the act: first, where there is a defect of understanding; second, where there is understanding and will sufficient residing in the. party, but not called forth and exerted at the time of the action done. Here the will sits neuter, and neither concurs with the act or disagrees with it. Third, where the action is constrained by some outward force and violence.

· Idem.

14 Blac. Com., 20. C. P.-1.

We shall proceed to discuss the several cases in which there is such a deficiency of will in the party by whom the act is committed, as will amount to a plea and excuse that may be urged in his behalf as a sufficient ground of exemption from punishment.



Infancy, or non-age, properly falls under the first class mentioned above, that is, where there is a defect of understanding. An infant is a person under the age of twenty-one years; but the question as to whether or not they are to be punished by criminal prosecution, seems to depend upon the fact whether or not they are under the years of discretion.”

The case of the King agst. William York, tried at the Michael. mas.term, in 1748,3 has long been the leading case on the liability of infants for crimes. In that case it was held that a child of ten years of age might be guilty of murder if it knew what it was doing. In that case the court observed there are many crimes of the most heinous nature, such as in the present case ; the murder of young children, poisoning parents or masters, burning houses, etc., which children are very capable of committing, and which they may in some circumstances be under strong temptations to commit; and, therefore, though the taking away the life of a boy ten years old may savor of cruelty, yet, as the example of this boy's punishment may be a means of deterring other children from the like offences, and as the sparing of this boy merely on account of his age will probably have a quite contrary tendency, in justice to the public the law ought to take its course, unless there remains any doubt touching his guilt.

On the trial or examination of an infant for a crime, he has a right to appear and defend himself in person or by an attorney,

1 4 Blac. Com., 20.

? 4 Blac. Com., 22. 1 Hawk. P. C., 2. • 1 Foster's Crown Law, 70.

and it is error for the court to assign him a guardian and try the case on a plea pleaded for him by the guardian.'

The discussion of this subject presents itself under the following sub-divisions :

1. Their liability below the age of seven years.
2. Their liability between the ages of seven and fourteen.
3. Their liability above the age of fourteen.

1. It is laid down by the elementary criminal writers that an infant under the age of seven years cannot be guilty of any crime, whatever circumstances may appear proving his discretion, for it is

a presumption of law that he cannot have discretion, and no averment can be received against that presumption. And it has been held in this state that a child of seven is incapable of committing crime. Although it would seem that the maxim, malice supplies age, applies as well to one under as one over the age of fourteen years.

2. Whatever may be the law relative to persons under the age of seven, all authorities agree that at that


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.

The presumption mentioned in favor of the infant is, that he has not knowledge of good and evil, and did not know that he was doing wrong. This presumed incompetency to discern evil is technically termed doli incapax, and the distinction in relation to the conviction and punishment of infants below seven years of age, and between the ages seven and fourteen, rests in this, that although the law regards them both as doli incapax, no evidence is admissible to contradict this presumption in the case of infants below seven years; while in the case of infants between the ages of seven and fourteen it is competent to prove that the

* 3 Leigh, 743.

* 1 Hawk, P. C., 2; 4 Blac.Com., 22, 23; 1 Hale, P. C., 27; Plowden 19 a; Mirror, ch. 4, § 16; Dalton's Just., ch. 147, p. 334; Arch. Cr. Pr., 10, 11; 1 Russ on Cr., 2; Peo. v. Townsend, 3 Hill, 480.

· Walker's Case, 5 City H. Rec., 137. • 1 Lead. Cr. Cases 71, note 2.

• 4 Blac. Com., 23; Rex v. Owen, 4, C. & P. 236; 5 City H. Rec., 137; I Whee. Cr. Cases, 230.

infant has sufficient mental capacity, and may therefore be guilty of crime. The ground upon which this presumption is overcome, is found in the maxim malitia supplet aetatem (malice supplies age), and if the evidence be sufficiently strong and clear, beyond all doubt and contradiction, that the offender is doli capax, that is, able to discern between good and evil, he may be convicted and suffer death.'

In this State, where on a charge of felony against an infant under the age of fourteen years and over the age of seven, no proof of his capacity to commit crime was given, it was held that the presumption was in his favor, and he was entitled to an acquittal. The malicious intent and guilty knowledge that the prisoner was doing wrong must be proved from the evidence, and cannot be presumed from the mere commission of the act.:

Although it has been said that as his age approximates to seven the inference in his favor becomes greater, and as it approximates to fourteen the inference in his favor is less.

The fact of guilty knowledge may often appear from the circumstances of the case, as if the prisoner conceals himself, denies the act, attempts to escape, or in any way shows a consciousness that he was doing wrong, and was capable of discerning good from evil.5

By the common law it was had that an infant under fourteen years

of age was conclusively presumed to be incapable of committing the offence of rape®; but in this State the presumption is not conclusive, and may be overcome by showing that the party charged had attained to puberty,"

It was also held in this State that a boy under fourteen years of age, indicted for rape, being presumed to be physically incompetent to commit the crime, could not be convicted of an assault with attempt to commit a rape, though he might be convicted of a simple assault and battery.8

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*40. & P., 236; 1 Whee. Cr. Cases, 230; 1 Ashm., 248; 1 Hale, 25, 27; 4 Blac. Com., 23; 1 Russ on Cr., 3. ? Peo. v. Davis, 1 Whee. Cr. Cases, 230.

Rex v. Smith, 1 Cox C. C., 260. • Walker's Case, 5 City H. Rec., 137.

• State v. Doherty, 2 Overton, 80; Stoges' Case, 5 City H. Rec., 177; 1 Hale P. C., 27; 1 Russ on Cr., 3; 4 Blac. Com., 24; Arch Cr. Pr., 11.

• 3 C. & P., 396; 7 Id., 582; 8 Id., 736; 9 Id., 366, 118.
* Peo. v. Randolph, 2 Park C. R., 174.
• Id., 213.

3. The authorities all agree, with a single class of exceptions, that entire criminal responsibility commences at the age of fourteen years, and the presumption of incompetency ceases."

The exception referred to is when the infant is privileged as to common misdemeanors by an omission, as not repairing a bridge, or a highway, or other similar offences ; for not having the command of his fortune until twenty-one, he wants the capacity to do those things which the law requires.?

Our statute also makes an exception in the case of embezzle. ment committed by apprentices and persons within the age of eighteen years.

The principles above set forth may be summed up as follows

Infants below the age of seven have not legal capacity to commit crime; between the ages of seven and fourteen they have possible capacity, the burden of proof resting upon the prosecution to show such capacity; above the age of fourteen they have legal capacity unless something else other than non-age intervenes to show a want or defect of will.



The second case of a deficiency in will, which excuses from the guilt of crimes, arises from a defective or vitiated understanding, viz: in an idiot or lunntic. No question, that ever can come before a court and jury, is so embarrassing to consider and with precision to determine, as cases of real or alleged insanity. What deprivation of reason ought to protect the unfortunate from punishment, and what ought not to cover them as a shield from suffering the reward of crime, is a question of great importance and greater difficulty.”

Every person at the age of discretion is, unless the contrary be proved, presumed by law to be sane and accountable for his

11 Lead. Cr. Cases 75, note 3. • 4 Blac. Com., 22; 1 Hale's P. C., 20, 21, 22. '2 R. S., 678, § 59. • 4 Black. Com., 24.

Tripler, 1 Whee. Cr. Cas., note.

• Peo. o.

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