§ 40. Under seven years.—At common law, a child under the age of seven years is conclusively presumed incapable of committing a crime. This is owing to the fact that such a child is conclusively presumed incapable of entertaining criminal intent, which is an essential element of every common-law crime.' This rule, however, is equally applicable to statutory crimes.2 And it is immaterial whether the crime charged is a felony or a misdemeanor.3

In some states, including Illinois, the common-law age of conclusive incapacity has been raised by statute. In Illinois an infant under the age of ten years can not be found guilty of any crime or misdemeanor. In Texas the age limit has been raised to nine years.5

$ 41. Between seven and fourteen years.-At common law, an infant between the ages of seven and fourteen years 1 Angelo v. People, 96 I11. 209, 36 3 Angelo v. People, 96 Ill. 209, Am. Rep. 132; State v. Fowler, 52 36 Am. Rep. 132. Iowa 103; State v. Adams, 76 Mo. 355; Reg. v. Smith, 1 Cox Cr. C. 260.

4 Illinois: Hurd's Rev. Stat. (1916) Div. 2, ch. 38, par. 283, § 11; Angelo v. People, 96 I11. 209, 36 Am. Rep. 132.

is presumed incapable of committing a crime, but the presumption is rebuttable. The proof of capacity, however, must be clear and convincing. Proof that he knew the difference between good and evil, or that he was possessed of the intelligence of ordinary boys of his age, does not fill the requirements of the law. It must be shown that he had sufficient discretion to understand the nature and illegality of the particular act constituting the crime. But, if the intelligence to apprehend the consequences of acts, to reason upon duty, to distinguish between right and wrong and if the consciousness of guilt and innocence be clearly manifested, then the capacity is shown. And when capacity is shown, a child over seven years of age is as fully responsible as a person who has reached his majority.10

As a general rule, the question of capacity must be determined from the conduct of the accused and the circumstances which surrounded the commission of the act.11 The mere naked confession of the accused is generally held insufficient to support a conviction. 12 Where, however, the corpus delicti is established by evidence aliunde, the confession may be sufficient.13

Both in England and in this country children of tender years have been convicted of the higher crimes and executed. Thus, in England, a boy of ten years of age was convicted of murder and hanged.14 The fact that he hid the body of

6 State v. Fowler, 52 Iowa 103, 12 N. W. 983; State v. Goin, 9 Humph. (Tenn.) 175; Hampton v. State, 1 Ala. App. 136, 55 So. 1018, Derby's Cases 199.

7 Angelo v. People, 96 I11. 209, 36 Am. Rep. 132; Rex v. Owen, 4 Car. & P. 236; State v. Tice, 90 Mo. 112, 2 S. W. 269.

8 Carr v. State, 24 Tex. App. 562, 7 S. W. 328, 5 Am. St. 905. See also State v. Yeargan, 117 N. Car. 706, 23 S. E. 153, 36 L. R. A. 196n.

9 State v. Aaron, 4 N. J. L. 231, 7 Am. Dec. 592; Angelo v. People, 96 I11. 209, 36 Am. Rep. 132.

10 State v. Aaron, 4 N. J. L. 231, 7 Am. Dec. 592.

11 Carr v. State, 24 Tex. App. 562, 7 S. W. 328, 5 Am. St. 905. 12 State v. Aaron, 4 N. J. L. 231, 7 Am. Dec. 592.

13 State v. Guild, 10 N. J. L. 163, 18 Am. Dec. 404; State v. Bostick, 4 Har. (Del.) 563.

14 York's Case, Fost. Cr. L. 70.

his little playmate whom he had killed was considered sufficient evidence of a consciousness of guilt, and knowledge of right and wrong. In another English case a child of only eight years of age was convicted of arson and hanged.15 . In New Jersey a boy twelve years of age was convicted of murder and hanged.1 16 In Alabama a child only eleven years of age was convicted of murder and the conviction was sustained. And in Louisiana a boy between ten and twelve years of age was convicted of arson and the conviction was sustained.18 In Texas the death penalty can not be inflicted on an infant below seventeen years of age.

17

The burden of proving capacity is upon the state, and it must prove it beyond any reasonable doubt;19 but the burden of proving nonage of the accused rests upon him.20

The presumption of incapacity decreases with the increase of years, and is much less in case of a child slightly under fourteen than in case of one but little over seven.21

§ 42. Effect of command of parent to do the act.-The command of a husband may constitute a complete defense to a criminal charge against his wife, but the command of a parent is no defense to a criminal charge against his child.22

§ 43. Physical incapacity to commit rape.-At common law, a boy under fourteen years of age is conclusively presumed to be physically incapable of committing rape, and testimony is inadmissible to rebut this presumption.23 Some

15 Emlyn on 1 Hale, P. C. 25n.

16 State v. Guild, 10 N. J. L. 163, 18 Am. Dec. 404.

17 Godfrey v. State, 31 Ala. 323, 70 Am. Dec. 494.

18 State V. Nickleson, 45 La. Ann. 1172, 14 So. 134.

19 Godfrey v. State, 31 Ala. 323, 70 Am. Dec. 494; Angelo v. People, 96 Ill. 209, 36 Am. Rep. 132; State v. Tice, 90 Mo. 112, 2 S. W. 269. 20 State v. Arnold, 35 N. Car.

of the courts of this country, however, treat the presumption as disputable,24 while others follow the common-law rule.25

§ 44. Over fourteen years of age.-A child over fourteen years of age is presumed to have capacity to commit crimes, the same as an adult.26 And a mere statement by him that he did not realize the act was wrong is entitled to little or no weight in rebuttal of this presumption.27

§ 45. Infant's liability for counterfeiting, forgery, false pretenses and cheating.-As a general rule an infant is not civilly liable on his contracts. He may be criminally liable, however, for counterfeiting, or forgery, or false pretenses, or cheating at common law."8

§ 46. Infant's liability for bastardy.—An infant may be held liable for his torts. And, since a charge of bastardy is in the nature of a civil charge rather than criminal, a plea of infancy to this charge is no defense.20

§ 47. Infant's liability for acts of omission, such as nonsupport.-Blackstone states: "The law of England does in some cases privilege 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 command of his fortune till twentyone, he wants the capacity to do those things which the law requires."30 An emancipated minor without property is not liable for non-support, 31 nor vagrancy.

24 Heilman V. Commonwealth, 84 Ky. 457, 1 S. W. 731, 4 Am. St. 207; Gordon v. State, 93 Ga. 531, 21 S. E. 54, 44 Am. St. 189; Williams v. State, 14 Ohio 222, 45 Am. Dec. 536. See also note to 36 L. R. A. 196.

25 Foster v. Commonwealth, 96 Va. 306, 31 S. E. 503, 42 L. R. A. 589, 70 Am. St. 846; Chism v. State, 42 Fla. 232, 28 So. 399.

32

26 Irby v. State, 32 Ga. 496.

27 State v. Kluseman, 53 Minn. 541, 55 N. W. 741.

28 People v. Kendall, 25 Wend. (N. Y.) 399, 37 Ann. Dec. 240. 29 Chandler V. Commonwealth, 61 Ky. 66.

304 Bl. Comm. 22.

31 People v. Todd, 61 Mich. 234, 28 N. W. 79.

32 Teasley v. State, 109 Ga. 282, 34 S. E. 577.

§ 55. Insanity-Definition.—Mental capacity is an important essential of criminal responsibility. This is owing to the fact that a mentally incapable person can not entertain a criminal intent. In the law of crimes this idea is involved in the definition of insanity. The books disclose great judicial efforts to reach up and grasp the definition of insanity; the results have been a discord.1 It may, however, in its broadest sense, be defined as any defect or disease of the mind which renders it incapable of entertaining, or

11 Bish. New Crim. L (8th ed.), § 381.