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of sensibility, pulse, secretion ;' and to put in evidence the history, conversation, writings, and deportment of the patient, so

And from far as they bear on the issue.”

physical It is admissible, in order to show mental incapacity peculiariwhen the defendant, under trial for larceny, has been shown to be an opium-eater, and to have been deprived of his accustomed supply of the drug, to prove by competent testimony the effect of such deprivation on his mental condition.

$ 65. As a rule, it is competent to prove insanity in the family of the party whose sanity is under examination. It has been said that where hereditary insanity is

And from offered as an excuse for crime, it must appear that the hereditary

tendency. kind of insanity proposed to be proven is no temporary malady, and that it is notorious, and of the same species as that with which other members of the family have been afflicted. But this qualification cannot be sustained, as insanity rarely descends in the same common type, but varies with individuals.

Proof of hereditary insanity can only be admitted as cumulative evidence. By itself, the insanity of ancestors is no defence.

Evidence that certain causes might induce insanity is not admissible without laying or offering to lay a basis of proof to show that insanity actually existed.8

7. Other Forms of Unconsciousness. § 66. Other forms of unconsciousness may be noticed as constituting a defence to a criminal charge. A man may commit an

1 Ibid. & 347. But it has been ruled Abbott, 7 Gray, 71, 1856 ; and even of that family and neighborhood reputa- collateral descendants from a common tion is not admissible to prove that the ancestor three generations back. Com. prisoner was permanently injured in v. Andrews, cited 1 Whart. & St. Med. his mind, by reason of a wound which Jur. 2375; Edmund's Case, Ibid. ; and he had received. Choice v. State, 31 see Com. v. Rogers, 7 Metc. 500, 1843. Ga. 424, 1861.

• State v. Christmas, 6 Jones, (N. C.) 21 Whart. & St. Med. Jur. % 471, 1858. 378–88. See Whart. Cr. Ev. 2 731. 6 1 Whart. & St. Med. Jur. $ 376;

Rogers v. State, 33 Ind. 1870. Whart. Cr. Ev. 2 731. * 1 Whart. & St. Med. Jur. § 372; 7 Snow v. Benton, 28 Ill. 306, 1862. R. v. Tucket, 1 Cox C. C. 103, 1845; In Laros v. Com., 84 Pa. 200, 1877, it R. v. Oxford, 9 C. & P. 525, 1840; is ruled that such evidence is not Smith v. Kramer, 1 Amer. Law Reg. competent until evidence of the de353; Bradley v. State, 31 Ind. 492, fendant's own insanity is given. Peo1869; State v. Felter, 25 Iowa, 67, ple v. Pine, 2 Barb. 566,1848; State v. 1867 ; People v. Garbutt, 17 Mich. 9, Christmas, 6 Jones, (N. C.) 471, 1858. 1867. Thus insanity of uncles has Sawyer v. State, 35 Ind. 80, 1871; been received in evidence; Baxter v. Bradley v. State, 31 Ind. 492, 1869.

3

8

forms of unconsciousness

injury when asleep, as when in a state of sleep-walking or som

nambulism.? Or he may be under the influence of opium, Other

or of ether, or other anodynes.” The question then arises,

Was the defendant at the time of the act a free agent? may be a

If not, the act is not criminally imputable to him. But

we have to keep in mind two possible conditions which may greatly vary the case. If the abnormal state was artificially induced in order to facilitate the commission of the crime, then the offence is malicious. If such state was negligently induced, then the defendant may be chargeable with a negligent offence.

defence.

II. INFANTS.

of

Infants under seven not

Between

§ 67. Until an infant arrives at the

age seven,

he cannot be convicted of a criminal offence. Under that age the in

fant may be chastised by his parents or tutors, but penally re- cannot be judicially punished, for he cannot be guilty in sponsible.

such a way as involves the ordinary penalty of crime.3 § 68. Between the age of seven and fourteen responsibility is

conditioned on capacity. If it appear that a child within seven and these limits is capax doli, which is to be determined by

the circumstances of the case, he may be convicted and

condemned. convicted.

The presumption that an infant is not capax doli, as to a child under seven, is irrebuttable. As to a child between seven and fourteen the presumption is rebuttable, the burden of overthrowing it being on the prosecution; the intensity of proof varying with age and other circumstances. It has been held in North

an infant capax doli may be

2

See these cases discussed in 1 163, 1828; State v. Goin, 9 Humph. Whart. & St. Med. Jur. 2% 482-4. 175, 1848.

Rogers v. State, 33 Ind. 543, 1870. * R. v. Groombridge, 7 C. & P.582, As to chloroform as a means of facili- 1836; R. v. Vanplew, 3 Fost. & F. 520; tating crime, see proceedings of N. State v. Doherty, 2 Tenn, 80, 1806; Y. Med. Leg. Soc., pp. 298–317, N. State v. Guild, 5 Halst. 163, 1828 ; Y. 1872. 3 Whart. & St. Med. Jur. Willet v. Com., 13 Bush, 230, 1877; 88 245, 594.

Godfrey v. State, 31 Ala. 323, 1852. As '1 Inst. 2; Burn's Justice (29th to special provision in Massachusetts ed.), tit. Children; 1 Hale, 19, 20; 4 Bla. for trial of infants, see Com. v. DonaCom. 23; 2 Steph. Hist. Crim. Law, hue, 126 Mass. 51, 1879. Infra, & 72. 98; R. v. Giles, 1 Moody, 166, 1834; 5 Whart. Cr. Ev. & 801. Marsh v. Loader, 14 C. B. N. S. 535, 6 Ibid. ; Hale's Sum. 43; 1 Hawk. 1863; Com. v. Mead, 10 Allen, 323, c. 1, s. 8; 4 Bla. Com. 24; R. v. Wild, 1865; People v. Townsend, 3 Hill, (N. 1 Mood. C. C. 452, 1834; R. v. Smith, Y.) 479, 1842; State v. Guild, 5 Halst. L. & C. 607, 1863; R. v. Owen, 4 C. &

Carolina that" as the reputed age of every one is peculiarly within his own knowledge,” a defendant setting up infancy has the burden on him to establish it.

An exceptional case is reported in New Jersey, where a boy of twelve years was convicted, on his own confession, imperfectly sustained by circumstantial corroboration, of murder, and was sentenced and executed.?

When the age of fourteen arrives, full criminal responsibility, at common law, attaches.3

P. 236, 1830; R. v. Smith, 1 Cox C.C. See State v. Bostick, 4 Harring. 563, 260, 1846; Com. v. Elliot, 4 Law Rep. 1847. 329; State v. Learnard, 41 Vt. 585, 3 State v. Goin, 9 Humph. 175, 1848; 1869; Com, v. Mead, 10 Allen, 398, State v. Bostick, 4 Harring. 563, 1847; 1865; Angelo v. People, 96 Ill. 132, State v. Handy, Ibid. 566, 1847 ; Irby 1880; State v. Pugh, 7 Jones, (N. C.) v. State, 32 Ga. 496, 1861. 61, 1859; Willet v. Com., 13 Bush, “The presumption of law in favor 230, 1877; State v. Toney, 15 S. C. of infants under fourteen, and the ne409, 1881; Hill v. State, 53 Ga. 578, cessity of satisfying the jury that the 1876; State v. Adams, 76 Mo. 355, child, when committing the act, must 1882 ; State v. Goin, 9 Humph. 175, have known that he was doing wrong, 1848; State v. Fowler, 52 Iowa, 103, is well illustrated by the case of R. 1879. See note in 1 Green's Cr. R. v. Owen, 4 Carrington & Payne, 236, 402. In Illinois the age of irrespon- 1830, where a girl ten years of age sibility is extended to ten. Angelo v. was indicted for stealing coals. It was People, 96 Ill. 209, 1880. In Texas proved that she was standing by a the periods are nine and thirteen. large heap of coals belonging to the McDaniel v. State, 5 Tex. App. 475, prosecutor, and that she had a basket 1879. Under the N. Y. Penal Code upon her head containing a few coals of 1884 the limit is placed at twelve. which the girl herself said she had

According to an enlightened Ger- taken from the heap. Littledale, J., man jurist and statesman, the age of in summing up to the jury, remarked : criminal responsibility is postponed ‘In this case there are two questions : in proportion to the extent to which First, did the prisoner take the coals ? the State assumes the responsibility and second, if she did, had she at the of the education of its children. “The time a guilty knowledge that she was better the school discipline, the more doing wrong? The prisoner is only confidently can the State defer to riper ten years of age, and unless you are years the application of penal justice. satisfied by the evidence that, in comThus, while in the Roman and canon mitting this offence, she knew that she law responsibility began at seven was doing wrong, you ought to acquit years, in modern Germany it does not her. Whenever a person committing begin till twelve.” Schaper, in Holtz. a felony is under fourteen years of age, Straf. ii. 161.

the presumption of law is, that he or State v. Arnold, 13 Ired. 184, 1853; she has not sufficient capacity to know infra, 273.

that it is wrong; and such person ought State v. Guild, 5 Halst. 163, 1828. not to be convicted unless there be evi

fourteen

of rape.

Parental influence, not amounting to coercion, however much it may affect a jury's conclusion on the merits, is not a technical defence.

§ 69. A boy under fourteen is presumed by law unable to commit Boy under

a rape,

and therefore, it seems, cannot be guilty of it; and

though in other felonies malitia supplet aetatem in some presumed incapable cases, yet it seems that as to rape the law presumes him

impotent as well as wanting discretion. Nor at common law is any evidence admissible to show that in fact he had arrived at the full state of puberty, and could commit the offence. But he may be a principal in the second degree, if he aid and assist in the commission of this offence, as with other felonies, and if intelligent evil purpose on his part be shown by the prosecution, which must, however, be plainly established. And though an infant under fourteen cannot be convicted of an assault with an intent to commit a rape;" he may be convicted of an indecent assault under the 7 Will. IV. s. 1; 10 Vict. c. 85, s. 11. After he passes fourteen the presumption vanishes; and in Delaware a boy just arrived at that age has been held in law capable of the offence."

$ 70. An infant, under the limitations which have been above expressed, may be guilty of forcible entry, if concerned in actual

dence to satisfy the jury that the party, 1845; Moore v. State, 17 Ohio, 521, at the time of the offence, had a guilty 1867, where the presumption is held knowledge that he or she was doing rebuttable; and see more fully infra, wrong. The jury returned a verdict 551. See State v. Pugh, 7 Jones, (N. of ‘Not guilty ;' adding, 'We do not C.) 61, 1859. think the prisoner had any guilty 4 Law v. Com., 75 Va. 885, 1880. knowledge.'” R. v. Smith, 1 Cox C. 5 R. v. Eldershaw, 3 C. & P. 396, C. 260, 1816; People v. Davis, 1 1828; R. v. Grooinbridge, 7 C. & P. Wheeler C. C. 230, 1823; Walker's 582, 1836; R. v. Philips, 8 C. & P. Case, 5 City Hall Recorder, 137; 736, 1839; R. v. Jordan, 9 C. & P. Stage's Case, 5 City Hall Recorder, 177, 118, 1839; R. v. Brimilow, 2 Mood. cited 5 Bost. L. Rep. N. S. 364; State C. C. 122; 8. C. 9 C. & P. 366, 1840; v. Doherty, 2 Tenn. 80, 1806.

State v. Sam, Winston, (N. C.) 300, Infra, % 94 a.

1864; State v. Pugh, 7 Jones, (N. C.) 61, 1 Hale, 360. And see R. v. Elder- 1859. See contra, Com. v. Green, 2 shaw, 3 C. & P. 396, 1828; R. v. Groom- Pick. 380, 1823; People v. Randolph, bridge, 7 C. & P. 582, 1836.

2 Parker C. R. 174, 1854; Williams 3 R. v. Philips, 8 C. & P. 736, 1839; v. State, 14 Ohio, 222, 1815. R. v. Jordan, 9 C. & P. 118, 1839; 6 R. v. Brimilow, 2 Mood. C. C. 122; Lewis C. L. 558. But see contra, Peo- s. C. 9 C. & P. 366, 1840. ple v. Randolph, 2 Parker C. R. 174, ? State v. Handy, 4 Harring. 566, 1855; Williams v. State, 14 Ohio, 222, 1847. Infra, 8 551.

1

2

Infant's

casos.

Infant lia

personal violence, and the justices may fine him therefor; though it is doubtful whether under the old English statutes he could be imprisoned for this offence. As to other mis- liability in demeanors attended with a notorious breach of the peace, special such as riot, battery, or the like, an infant is liable under the above limitations, and he is indictable for perjury or cheating. But it is otherwise as to quasi civil suits. Thus, an infant under twenty-one is not responsible for not repairing a bridge or highway, or other such acts of omission of civil duty, though he may be convicted on a penal statute. An infant under seven cannot be punished criminally for a nuisance on his land.

$ 71. As will hereafter be seen, an infant over fourteen, who falsely claims to be of age, and thus obtains money,

is indictable for obtaining money by false pretences. But ble for

false reprethis can only be done when there is nothing in the in- sentations fant's appearance to put parties dealing with him on inquiry as to the true facts.

§ 72. Upon a presentment against an infant for a misdemeanor, he has a right to appear and defend himself in person or hy attorney, and it is an error to assign him a guardian, fant may and to try the case on a plea pleaded for him by the appear by

attorney. guardian. $ 73. When age can be ascertained by inspection, the

Age is incourt and jury must decide. But ordinarily opinion of ferable medical experts is admissible to prove age. And age is circumgenerally inferable from circumstances.

$ 74. We have elsewhere seen" that no conviction should be permitted to rest on a confession without proof of the corpus delicti, and that a confession is dependent for sions of incredibility on the character and circumstances of the fants addeclarant. To children these cautions are peculiarly

as to age.

When in

8

from

10

stances.

missible.

3

9 State v.

11 Hawk. c. 24, s. 35.

Kendall, 25 Wend. 399, 1841; infra, ? 1 Hawk. c. 64, s. 35.

2 1135. 1 Hale, 20, 21; 4 Bla. Com. 220; 8 Word v. Com., 3 Leigh, 743, 1831. Bullock v. Babcock, 3 Wend. 391, 1829. See, as to Massachusetts, Com. v. Don

* 3 Bac. Abr. Infancy (H). Infra, ahue, 126 Mass. 51, 1879. & 1148-9.

Arnold, 13 Ired. 184, 1853. 5 R. v. Sutton, 5 N. & M. 354, 1826; See supra, & 70; Whart. Cr. Ev. 2 310. Bla. Com. 22; Co. Lit. 257.

10 State v. Smith, Phill. (N. C.) L. • See People v. Townsend, 3 Hill, 302, 1867. As to burden of proof, see (N. Y.) 479, 1842. ' Infra, & 1149. See People v.

11 Whart. Cr. Ev. & 532.

supra, & 68.

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