This record may be searched in vain to find any such proof. There was no witness examined on that question, nor did any one refer to it. There is simply evidence as to his age. For aught that appears, he may have been dull, weak, and wholly incapable of knowing good from evil. It does not appear, from even the circumstances in evidence, that he may not have been mentally weak for his age, or that he may not have even approached idiocy. The law presumes that he lacked mental capacity at his age, and that presumption has not been overcome by the requisite proof, or, in fact, any proof. The court below should, therefore, have granted a new trial, and erred in refusing it. Reversed. Angelo v. P., 96 Ill. 209, 36 Am. Rep. 132, Kn. 34, 3 L. 123.

(Mo. Sup. Ct., 1886.) Same. Defendant, a boy under 14, was convicted of assault. Becoming involved in a school-boy scuffle, resulting in a fight, he cut one of the boys with a pocket knife. "Under seven years of age an infant cannot be guilty of felony. In the interval between that age and that of 14 years he is prima facie adjudged to be doli incapax. And when an infant is arraigned for a felony, this disputable presumption of the law, for the onus in such cases is on the state, is to be rebutted; and the evidence of that malice which is to supply age ought to be strong and clear, beyond all doubt and contradiction. 4 Bl. Comm. 24. In this way only can the legal maxim be applied that malitia supplet aetatem. Here there was no attempt made by the state to prove that the boy in question was possessed of that 'mischievous discretion' which supplies the place of age, and rendered him amenable to legal punishment. This case, therefore, falls within the rule announced in S. v. Adams, 76 Mo. 355." Per SHERWOOD, J. Judgment reversed. S. v. Tice, 90 Mo. 112, 2 S. W. 269, F. 65.

(Mich. Sup. Ct., 1886.) CAMPBELL, C. J. Todd, who was a minor, was prosecuted criminally for not supporting his wife, and making her a public burden, while he was of sufficient ability. * Upon a careful scrutiny of the testimony we discover no legal testimony tending to show that respondent was emancipated, or that he owned any property. This is a fatal defect, and the attention of the court below was called to it. * * Respondent discharged. P. v. Todd, 61 Mich. 234, 28 N. W. 79.

*

*

(Minn. Sup. Ct., 1893.) Boys of 15 Convicted of Placing Obstructions on Railway Track. GILFILLAN, C. J. * Their own testimony, that they did not know it was wrong to put the ties on the track, and did not know that the ties might throw the train off the track and injure the passengers, did not, in the absence of any evidence upon the question of their general mental capacity, raise any issue as to their responsibility for their acts, for the jury to pass on. It did not tend to prove either of them to have been an

idiot, imbecile, lunatic, or insane person.

*

There was no error, therefore, in the charge of the court or in its refusals to charge. S. v. Kluseman, 53 Minn. 541, 55 N. W. 741.

*

(N. Car. Sup. Ct., 1895.) Simple Misdemeanor. The state appealed from judgment dismissing defendant on indictment for gambling by "shooting craps." Defendant was 13 years old. FAIRCLOTH, C. J. Our case presents the question of a simple misdemeanor by one who, the jury say, knew right from wrong, but did not know he was violating any law, and presumably had no intention of committing any offense. Among persons of full age ignorance of the law is no excuse, nor is the absence of any intent to violate it available as a defense; but it is the intent to do an act which is a violation of law that makes the actor guilty. In our examination of the early criminal law books, such as Blackstone, Russell, Hale, and Wharton, we have been unable to find an instance in which, for a simple misdemeanor, unattended with aggravating circumstances, such as the above, an infant under 14 years had been indicted and punished. All the cases treated by those writers are felonies. No error. S. v. Yeargan, 117 N. Car. 706, 23 S. E. 153, 36 L. R. A. 196.

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*

Attempted Rape by boy under 14 years old, see C. v. Green, § 62; Foster v. C., § 62; McKinny v. S., § 62; and S. v. Jones, § 62.

§ 56. "That the Defendant was Idiotic or Demented."

(Conn. Superior Ct., 1873.) Imbecility. Indictment for burning a barn, and plea of not guilty. Lack of mental capacity was the defense. SEYMOUR, J., to the jury: The evidence seems ample to warrant you in finding that the burning complained of was caused by the prisoner. Your attention has been turned mainly to the question whether the act was done with the felonious intent charged, and this question depends mainly upon another, whether the accused has sufficient mental capacity to warrant us in imputing to him a felonious intent. That he is considerably below par in intellect is apparent to us all. This is indicated by his countenance and general appearance. The same thing is indicated by his extraordinary conduct at the fire. As the flames were bursting out he was seen on all fours crawling back from under the burning barn, with no clothing upon him except his shirt and trousers. The day was excessively cold. He remained some half hour, thus scantily clothed, gazing stupidly at the blaze, until ordered into the house. All this took place in broad daylight, in plain view of Mr. Gallup's house. But it is undoubtedly true, as the attorney for the state contends, that mere inferiority of intellect is no answer to the prosecution. We are, therefore, called upon in this case to decide an interesting and difficult question, to-wit: whether the accused has sufficient mind to be held responsible as a criminal. He is not a

*

mere idiot, nor does he appear to be a lunatic. He suffers from want of mind rather than from derangement or delusion, and the question is whether the want of mind is such as to entitle him to acquittal on the ground of what in law is termed dementia.

It is often said in the books that a person is to be deemed responsible for crime if he understands the consequences and effects of the act laid to his charge. This is undoubtedly and obviously true if he has such understanding and appreciation of consequences as pertain to other men. But if he has less of it than is common to men in general, how much less must it be to escape responsibility? I think the accused had some knowledge of the consequences of his acts. He probably knew that by igniting a match and throwing it into a hay-mow a fire would be kindled and that the barn would thereby be consumed. He perhaps also had some appreciation of the loss and destruction of property which would ensue. But I am not willing to say that some knowledge of consequences, however faint and imperfect, is sufficient to warrant you in convicting the prisoner. I can give you no precise rule, but I think it clear that if the prisoner's perception of consequences and effects was only such as is common to children of tender years he ought to be acquitted. And this leads me to refer to the rule adopted by an eminent English judge, Lord Hale. He reasoned that, inasmuch as children under fourteen years of age are prima facie incapable of crime, imbeciles ought not to be held responsible criminally unless of capacity equal to that of ordinary children of that age.

I am inclined to recommend Lord Hale's rule to your adoption, not however without qualifications which I think it important to observe. And first, this test, like all others which I know of, is imperfect. Probably no two of us have the same idea of the capacity of children of 14 years of age; and then there is this further difficulty, that there can be no accurate comparison in detail between the healthy and properly balanced, though immature, mind of a child, and the unhealthy, abnormal, and shriveled intellect of an imbecile. The comparison, therefore, is only of the general result in their respective appreciation of right and wrong and of consequences and effects. This further consideration ought also to be borne in mind: that though in modern times persons under 14 are seldom subjected to the penalties of the criminal code, yet in law children between 7 and 14 may be subjects of punishment if they are shown to be of sufficient capacity to commit crimes. In applying Lord Hale's rule, therefore, the child to be taken as the standard ought not to be one who has had superior advantages of education, but should rather be one in humble life, with only ordinary training. Verdiet, not guilty. S. v. Richards, 39 Conn. 591, B. 238.

§ 57. "That the Defendant was Intoxicated.'

(Eng. Assize, 1823.) Rape When Drunk. The prisoner being indicted for rape, urged that he was in liquor. HOLROYD, J., addressed the jury as follows: "It is a maxim of law that if a man gets himself intoxicated, he is answerable to the consequences, and is not excusable on account of any crime he may commit when infuriated by liquor, provided he was previously in a fit state of reason to know right from wrong. If, indeed, the infuriated state at which he arrives should continue and become a lasting malady, then he is not amenable." Burrow's Case, 1 Lewin C. C. 75.

(U. S. C. C., for Mass., 1828.) Homicide During Delerium Tremens. Drew was indicted for the murder of C. L. Clark on the high seas, on board the John Jay, of which Drew was captain and Clark second mate. Drew had been in the habit of excessive indulgence in drink, and was almost continually drunk. About five days before the homicide, he ordered all liquor on board thrown over, which was done. Soon he became restless, fretful, irritable, expressed fear that the crew intended to murder him, complained of persons unseen talking to him and urging him to kill Clark, feared he would do so, could not sleep, was in motion continually day and night, and said persons threatened to kill him every time he laid down unless he killed Clark. STORY, J. We are of opinion that the indictment upon these admitted facts cannot be maintained. The prisoner was unquestionably insane at the time of committing the offense. And the question made at the bar is, whether insanity, whose remote cause is habitual drunkenness is, or is not, an excuse in a court of law for a homicide committed by the party, while so insane, but not at the time intoxicated or under the influence of liquor. We are clearly of opinion that insanity is a competent excuse in such a case. In general, insanity is an excuse for the commission of every crime, because the party has not the possession of that reason, which includes responsibility. An exception is, when the crime is committed by a party while in a fit of intoxication, the law not permitting a man to avail himself of the excuse of his own gross vice and misconduct, to shelter himself from the legal consequences of such crime. But the crime must take place and be the immediate result of the fit of intoxication, and while it lasts; and not, as in this case, a remote consequence, superinduced by the antecedent exhaustion of the party, arising from gross and habitual drunkenness. However criminal in a moral point of view such an indulgence is, and however justly a party may be responsible for his acts arising from it to Almighty God, human tribunals are generally restricted from punishing them, since they are not the acts of a reasonable being. Had the crime been committed while Drew was in a fit of intoxication, he would have been liable to be convicted of murder. As he was not then intoxicated, but merely insane

from an abstinence from liquor, he cannot be pronounced guilty of the offense. The law looks to the immediate, and not to the remote cause. Verdict, not guilty. U. S. v. Drew, 5 Mason 28, Fed. Cas. No. 14, 993, 1 B. & H. 113, 2 L. 601.

Acc. R. v. Davis, 14 Cox C. C. 563, B. 262, C. 81.

(Ga. Sup. Ct., 1860.) Dipsomania. Defendant convicted of murder, excepted to the refusal of the court below to instruct the jury that if they believed the prisoner had suffered from injury or otherwise a pathological or organic change of the brain, which produced the disease of oenomania, and by this disease was irresistibly impelled to drink liquor, and from the liquor thus drank became insane, and while so insane killed deceased, he was not guilty of murder. In speaking for the court in holding this instruction properly refused, LUMPKIN, J., said: That this controlling thirst for liquor may be acquired by the force of habit, until it becomes a sort of second nature, in common language, I entertain no doubt. Whether even a long course of indulgence will produce a pathological or organic change in the brain, I venture no opinion. Upon this proposition, however, I plant myself immovably, and from it nothing can dislodge me but an act of the legislature; namely, that neither moral nor legal responsibility can be avoided in this way. This is a new principle sought to be ingrafted upon criminal jurisprudence. It is neither more nor less than this-that a want of will and conscience to do right will constitute an excuse for the commission of crime; and that, too, where this deficiency in will and conscience is the result of a long and persevering course of wrong doing. If this doctrine be true-I speak it with all seriousness-the devil is the most irresponsible being in the universe. For, from his inveterate hostility to the Author of all good, no other creature has less power than Satan to do right. The burglar and the pirate may indulge in robbing and murder until it is as hard for an Ethiopian to change his skin as for them to cease to do evil, but the inability of Satan to control his will, to do right, is far beyond theirs; and yet our faith assures us that the fate of Satan is unalterably and eternally fixed in the prison house of God's enemies. The fact is, responsibility depends upon the possession of will-not the power over it. Nor does the most desperate drunkard lose the power to control his will, but he loses the desire to control it. No matter how deep his degradation, the drunkard uses his will when he takes his cup. It is for the pleasure of the relief of the draught, that he takes it. His intellect, his appetite, and his will, all work rationally, if not wisely, in his guilty indulgence. Choice v. S., 31 Ga. 424, B. 269, 2 L. 539.

(New York Ct. of App., 1858.) To Reduce Crime. The supreme court reversed the judgment of the general sessions, where Rogers was convicted of murder. The state brings error. The prisoner, without any provocation on the part of the deceased, who was a