of sensibility, pulse, secretion; and to put in evidence the history, conversation, writings, and deportment of the patient, so far as they bear on the issue." And from physical ties. 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.3 § 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.5 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 reputation is not admissible to prove that the prisoner was permanently injured in his mind, by reason of a wound which he had received. Choice v. State, 31 Ga. 424, 1861. 21 Whart. & St. Med. Jur. 378-88. See Whart. Cr. Ev. ? 731. Rogers v. State, 33, Ind. 543, 1870. 1 Whart. & St. Med. Jur. & 372; R. v. Tucket, 1 Cox C. C. 103, 1845; R. v. Oxford, 9 C. & P. 525, 1840; Smith v. Kramer, 1 Amer. Law Reg. 353; Bradley v. State, 31 Ind. 492, 1869; State v. Felter, 25 Iowa, 67, 1867; People v. Garbutt, 17 Mich. 9, 1867. Thus insanity of uncles has been received in evidence; Baxter v. collateral descendants from a common ancestor three generations back. Com. v. Andrews, cited 1 Whart. & St. Med. Jur. 2375; Edmund's Case, Ibid.; and see Com. v. Rogers, 7 Metc. 500, 1843. 5 State v. Christmas, 6 Jones, (N. C.) 471, 1858. 61 Whart. & St. Med. Jur. ? 376; Whart. Cr. Ev. 2 731. Snow v. Benton, 28 Ill. 306, 1862. In Laros v. Com., 84 Pa. 200, 1877, it is ruled that such evidence is not competent until evidence of the defendant's own insanity is given. People v. Pine, 2 Barb. 566, 1848; State v. Christmas, 6 Jones, (N. C.) 471, 1858. Other forms of uncon sciousness may be a defence. 2 injury when asleep, as when in a state of sleep-walking or somnambulism.1 Or he may be under the influence of opium, or of ether, or other anodynes. The question then arises, Was the defendant at the time of the act a free agent? 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. Infants under seven not II. INFANTS. § 67. Until an infant arrives at the age of seven, he cannot be convicted of a criminal offence. Under that age the infant 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.' Between fourteen an infant capax doli may be 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 See these cases discussed in 1 163, 1828; State v. Goin, 9 Humph. Whart. & St. Med. Jur. ?? 482-4. 175, 1848. 2 Rogers v. State, 33 Ind. 543, 1870. As to chloroform as a means of facilitating crime, see proceedings of N. Y. Med. Leg. Soc., pp. 298-317, N. Y. 1872. 3 Whart. & St. Med. Jur. ?? 245, 594. 1 Inst. 2; Burn's Justice (29th ed.), tit. Children; 1 Hale, 19, 20; 4 Bla. Com. 23; 2 Steph. Hist. Crim. Law, 98; R. v. Giles, 1 Moody, 166, 1834; Marsh v. Loader, 14 C. B. N. S. 535, 1863; Com. v. Mead, 10 Allen, 323, 1865; People v. Townsend, 3 Hill, (N. Y.) 479, 1842; State v. Guild, 5 Halst. 4 R. v. Groombridge, 7 C. & P. 582, 1836; R. v. Vanplew, 3 Fost. & F. 520 ; State v.. Doherty, 2 Tenn. 80, 1806; State v. Guild, 5 Halst. 163, 1828; Willet v. Com., 13 Bush, 230, 1877; Godfrey v. State, 31 Ala. 323, 1852. As to special provision in Massachusetts for trial of infants, see Com. v. Donahue, 126 Mass. 51, 1879. Infra, & 72. 5 Whart. Cr. Ev. 2 801. Ibid.; Hale's Sum. 43; 1 Hawk. c. 1, s. 8; 4 Bla. Com. 24; R. v. Wild, 1 Mood. C. C. 452, 1834; R. v. Smith, 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.1 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.2 When the age of fourteen arrives, full criminal responsibility, at common law, attaches.3 P. 236, 1830; R. v. Smith, 1 Cox C. C. 260, 1846; Com. v. Elliot, 4 Law Rep. 329; State v. Learnard, 41 Vt. 585, 1869; Com. v. Mead, 10 Allen, 398, 1865; Angelo v. People, 96 Ill. 132, 1880; State v. Pugh, 7 Jones, (N. C.) 61, 1859; Willet v. Com., 13 Bush, 230, 1877; State v. Toney, 15 S. C. 409, 1881; Hill v. State, 53 Ga. 578, 1876; State v. Adams, 76 Mo. 355, 1882; State v. Goin, 9 Humph. 175, 1848; State v. Fowler, 52 Iowa, 103, 1879. See note in 1 Green's Cr. R. 402. In Illinois the age of irresponsibility is extended to ten. Angelo v. People, 96 Ill. 209, 1880. In Texas the periods are nine and thirteen. McDaniel v. State, 5 Tex. App. 475, 1879. Under the N. Y. Penal Code of 1884 the limit is placed at twelve. According to an enlightened German jurist and statesman, the age of criminal responsibility is postponed in proportion to the extent to which the State assumes the responsibility of the education of its children. "The better the school discipline, the more confidently can the State defer to riper years the application of penal justice. Thus, while in the Roman and canon law responsibility began at seven years, in modern Germany it does not begin till twelve." Schaper, in Holtz. Straf. ii. 161. See State v. Bostick, 4 Harring. 563, 1847. 3 State v. Goin, 9 Humph. 175, 1848; State v. Bostick, 4 Harring. 563, 1847; State v. Handy, Ibid. 566, 1847; Irby v. State, 32 Ga. 496, 1861. "The presumption of law in favor of infants under fourteen, and the necessity of satisfying the jury that the child, when committing the act, must have known that he was doing wrong, is well illustrated by the case of R. v. Owen, 4 Carrington & Payne, 236, 1830, where a girl ten years of age was indicted for stealing coals. It was proved that she was standing by a large heap of coals belonging to the prosecutor, and that she had a basket upon her head containing a few coals which the girl herself said she had taken from the heap. Littledale, J., in summing up to the jury, remarked: 'In this case there are two questions: First, did the prisoner take the coals? and second, if she did, had she at the time a guilty knowledge that she was doing wrong? The prisoner is only ten years of age, and unless you are satisfied by the evidence that, in committing this offence, 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 1 State v. Arnold, 13 Ired. 184, 1853; she has not sufficient capacity to know infra, ¿ 73. that it is wrong; and such person ought State v. Guild, 5 Halst. 163, 1828. not to be convicted unless there be evi Parental influence, not amounting to coercion, however much it may affect a jury's conclusion on the merits, is not a technical defence.1 of rape. § 69. A boy under fourteen is presumed by law unable to commit a rape, and therefore, it seems, cannot be guilty of it; and Boy under fourteen 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.2 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 1867, where the presumption is held rebuttable; and see more fully infra, 551. See State v. Pugh, 7 Jones, (N. C.) 61, 1859. dence to satisfy the jury that the party, 1845; Moore v. State, 17 Ohio, 521, at the time of the offence, had a guilty knowledge that he or she was doing wrong.' The jury returned a verdict of 'Not guilty;' adding, 'We do not think the prisoner had any guilty knowledge.'" R. v. Smith, 1 Cox C. C. 260, 1846; People v. Davis, 1 Wheeler C. C. 230, 1823; Walker's Case, 5 City Hall Recorder, 137; Stage's Case, 5 City Hall Recorder, 177, cited 5 Bost. L. Rep. N. S. 364; State v. Doherty, 2 Tenn. 80, 1806. 1 Infra, & 94 a. 21 Hale, 360. And see R. v. Eldershaw, 3 C. & P. 396, 1828; R. v. Groombridge, 7 C. & P. 582, 1836. 4 Law v. Com., 75 Va. 885, 1880. 5 R. v. Eldershaw, 3 C. & P. 396, 1828; R. v. Groombridge, 7 C. & P. 582, 1836; R. v. Philips, 8 C. & P. 736, 1839; R. v. Jordan, 9 C. & P. 118, 1839; R. v. Brimilow, 2 Mood. C. C. 122; s. c. 9 C. & P. 366, 1840; State v. Sam, Winston, (N. C.) 300, 1864; State v. Pugh, 7 Jones, (N. C.) 61, 1859. See contra, Com. v. Green, 2 Pick. 380, 1823; People v. Randolph, 2 Parker C. R. 174, 1854; Williams v. State, 14 Ohio, 222, 1845. 3 R. v. Philips, 8 C. & P. 736, 1839; R. v. Jordan, 9 C. & P. 118, 1839; Lewis C. L. 558. But see contra, Peo- s. c. 9 C. & P. 366, 1840. ple v. Randolph, 2 Parker C. R. 174, R. v. Brimilow, 2 Mood. C. C. 122; State v. Handy, 4 Harring. 566, 1855; Williams v. State, 14 Ohio, 222, 1847. Infra, 551. Infant's cases. 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. Infant lia § 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 this can only be done when there is nothing in the infant's appearance to put parties dealing with him on inquiry as to the true facts. false repre sentations as to age. When in § 72. Upon a presentment against an infant for a misdemeanor, he has a right to appear and defend himself in person or by attorney, and it is an error to assign him a guardian, and to try the case on a plea pleaded for him by the guardian.8 fant may appear by attorney. Age is in from § 73. When age can be ascertained by inspection, the court and jury must decide." But ordinarily opinion of ferable medical experts is admissible to prove age.1 And age is circumgenerally inferable from circumstances. 10 stances. Confes § 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 11 Hawk. c. 24, s. 35. 21 Hawk. c. 64, s. 35. 3 1 Hale, 20, 21; 4 Bla. Com. 220; Bullock v. Babcock, 3 Wend. 391, 1829. 3 Bac. Abr. Infancy (H). Infra, 1148-9. missible. Kendall, 25 Wend. 399, 1841; infra, 1135. 8 Word v. Com., 3 Leigh, 743, 1831. See, as to Massachusetts, Com. v. Donahue, 126 Mass. 51, 1879. State v. Arnold, 13 Ired. 184, 1853. 5 R. v. Sutton, 5 N. & M. 354, 1826; See supra, & 70; Whart. Cr. Ev. ? 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. supra, & 68. See People v. 11 Whart. Cr. Ev. 532. |