L INFANCY As Defense to Charge of CRIME. 1. Common-law rule as to infants under seven years of age.

2. Same-As to infants between ages of seven and fourteen years.

3. Illegal act of child in obedience to command of parent.

4. Infant within seven years of ageNot punishable for capital offense. 5-7. Infant between seven and fourteen years of age-Presumption as to.

8. Infant under seven as witness.
9. Texas rule fixing age of accounta
bility.

10. Under Missouri statute infants pun-
ishable with death though exempt
from imprisonment in penitentiary.

II. EVIDENCE OF INFANT'S CAPACITY PRE

SUMPTIONS.

11. Evidence-Capacity to commit crime implies capacity to confess it.

12. Same-Confession of infant, effect

of.

13. Same-Knowledge of unlawfulness. 14. Same-Presumption as to incapacity -How overcome.

15. Same-Proof of capacity by state. 16. Same-Strength of presumption as to incapacity variable.

17. Question of incapacity is one of fact. III. IDIOCY-DEAF MUTES.

18. Deaf mute-Presumption as to deaf mute from birth.

19. Same-Presumption of idiocy repelled.

20. Same-Rule where person becomes deaf and dumb by accident.

21. Imbecility-Incapacity to distinguish. right from wrong.

22. Mentally deficient (subdivision 3). 23. Practice Confession of weakminded person, effect of.

IV. INSANITY AS DEFENSE-TEST OF CAPACITY-KINDS OF INSANITY.

24. Capacity, test of-Present insanity of defendant.

25, 26. Same-Standard of accountability. 27. Same-Same-Mental ability to distinguish between right and wrong is general test.

28. Same Same-Rule as to loss of power to choose between right and wrong.

29. Criminality-Depends upon mental condition at time of commission of offense.

30. Circumstances of inhumanity and barbarity-Effect of.

31-33. Defense of insanity-Care required in examining, etc.

34. Same-Proof required to establish insanity.

35. Homicide committed under insane impulse-When sufficient defense.

36. Insanity produced by intoxicationEffect of.

37. Same-Settled insanity.

38, 39. Irresistible impulse-Conflict of authority as to whether a defense.

40. Same-No defense, when.

41, 42. Same-Same-Restraining force as determining accountability.

43. Same-Knowledge

wrong.

of right and

69. Same-Insanity, how established. 70. Same-Same-As to civil actions. 71. Same-Same-Defense must be es tablished by satisfactory proof. 72. Same Same-Same-Contrary rule. 73. Same Same-Same-Editorial note -Distinction between grades of proof.

74. Same Same-Proof beyond reasonable doubt not required.

75. Same Same Compare-Reasonable doubt as to insanity not sufficient as defense.

76. Evidence-Action and demeanor of defendant on trial as circumstance in determining insanity.

77. Same-Amount of proof required not changed where question of sanity is raised by prosecution.

78. Same-Same-Any evidence tending to show mental status admissible.

79. Same Same-Appellate court not empowered to act upon evidence.

80. Same-Character of evidence required.

81. Same-Same-Commitment sane asylum.

to in

82. Same-Same-Declarations made by defendant, when hearsay.

83. Same Same-Expert witness

Impression, etc., produced by hearsay inadmissible.

107, 108. Same-Parent or relative-Insanity of, as evidence.

109. Same-Petition for writ of habeas

corpus.

110. Same-Prior condition of mind— Evidence of admissible. 111. Same-Same-Evidence of insanity, when not admissible.

112. Rational conduct, question as to. 113. Same-Test of pertinency of evidence as to mental condition. 114. Same-Weakness of mind, evidence as to.

115. Same-Wife's evidence as to confession made to husband, effect of-How far admissible.

in

116. Instruction held

erroneous-Court

131, 132. Same-As to emotional insanity. 133. Same As to "insane impulse." 134. Same-As to insanity through intoxication.

135, 136. Same-As to irresistible impulse. 137. Same-Modification of instructionAs to generally.

138. Same-Same-As to "momentary
incapacity."

139. Same As to partial insanity.
140. Same As to presumption of con-
tinuance of insanity.

141. Same As to proof required, degree
of-Proof beyond a reasonable
doubt, etc.

142. Same-Delirium tremens.
143. Same-As to insanity.

144-146. Same-As to sanity at time of trial.
147. Same As to test of insanity.
148. Plea of insanity-Not required.
149. Same As to present insanity.
150-152. Same-Same-Duty of court.
153. Same-Same-Instruction.
of jury-To determine
question of insanity.

154, 155. Province

156, 157. Same-Weight of evidence-Settled

insanity.

158. Sanity presumed until contrary shown.

159. Trial of insane person.

160. Same-Duty of court to submit question of insanity upon special issue, when arising.

161. Same-Insanity at time of trial does
not entitle to acquittal.

162. Same-Refusal to instruct jury to
acquit, when not erroneous.
163. Same-Waiver of inquiry into ques-
tion of sanity by counsel not per-
mitted.

VI. UNCONSCIOUSNESS AS DEFENSE.

164. Construction - Subdivision contem-
plates somnambulists, etc.

165. Same-Persons of unsound mind not
included in subdivision 5.
166. Same As to burden of proof.

VII. INEVITABLE ACCIDENT MISFORTUNE-
CULPABLE NEGLIGENCE.

167. Accident to wife-When not warranting conviction of crime.

168. Absence of proper care in performing lawful act-Effect of.

169-172. Same-Actual or specific intent not necessary.

173. Inevitable accident-Burden of proof
upon defendant.
174. Infant as actor.

175. Practice Act of criminal negligence
question of fact.

VIII. COERCION, ETC.-REASONABLE GROUND FOR FEAR.

176. Command of superior to inferior, etc.-Not justification of criminal

act.

177. Duress of compulsion-What degree of will excuse criminal act.

178. Exception must be proved. 179. Same-Need not be pleaded. 180, 181. Hypnotism-When the evidence of properly excluded.

182. Same-When not a defense to a charge of murder.

183. Murder-No fear of consequences
will excuse crime of.

184. Threats, etc.-Minor defendant.
185. Same-Infant under thirteen years
of age acting under.

186, 187. Same-Reasonable ground for fear alone is excuse for criminal act.

I. INFANCY AS DEFENSE TO CRIME. 1. Common-law rule.-At common law, infants under seven years of age are conclusively presumed incapable of committing crime.-Ky. Willett 13 v. Commonwealth, Bush 230. N. Y. People v. Townsend, 3 Hill 479. Eng. Marsh v. Loader, 14 C. B. N. S. 535, 108 Eng. C. L. 534; Rex v. Inhabitants of Kings Langley, 1 Str. 631.

2. Same-Infants between the ages of seven and fourteen are, at common law, prima facie presumed to be incapable of committing crime, but this presumption decreases in strength with age.-Irby v. State, 32 Ga. 496. See Ga. Hill v. State, 63 Ga. 578. 36 Am. Rep. 120. m. Angelo v. People, 96 Ill. 209, 36 Am. Rep. 132. Iowa. State v. Fowler, 52 Iowa 103, 2 N. W. 983; State v. Milholland, 89 Iowa 5, 56 N. W. 403. Mass. Commonwealth v. Mead, 92 Mass. (10 Allen) 398. Mo. State v. Adams, 76 Mo. 355, 4 Am. Cr. Rep. 392; State v. Tice, 90 Mo. 112, 2 S. W. 269. N. J. State v. Aaron, 4 N. J. L. (1 South.) 231, 7 Am. Dec. 592; State v. Guild, 10 N. J. L. (5 Hal.) 163, 18 Am. Dec. 404. N. Y. People v. Townsend, 3 Hill 479; People v. Kendall, 25 Wend. 399, 37 Am. Dec. 240. Tex. McDaniel v. State. 5 Tex. App. 475; Allen v. State, 15 Tex. App. 320; Parker v. State, 20 Tex. App. 451; Carr v. State, 24 Tex. App. 562, 5 Am. St. Rep. 905, 7 S. W. 328; Keith v. State, 33 Tex. Cr. Rep. 341, 26 S. W. 412. Fed. Allen V. United States, 150 U. S. 551, 37 L. ed. 1179, 14 Sup. Ct. Rep. 196. Eng. Rex v. Owen, 4 Car. & P. 236, 19 Eng. C. L. 362; Marsh v. Loader, 14 C. B. N. S. 535, 108 Eng. C. L. 534.

4. Infant within age of seven yearsCan not be punished for any capital offense, whatever circumstances of mischievous intention may be proved against him, for by the presumption of the law he can not have discretion to discern between good and evil, and against this presumption no averment can be admitted.-Godfrey v. State, 31 Ala. 323, 70 Am. Dec. 592.

5. Infant above seven but under fourteen years of age is presumed not to have such knowledge and discretion as would make him accountable for a felony committed during that period.-Godfrey v. State, 31 Ala. 323, 70 Am. Dec. 494.

6. A boy under fourteen years of age is presumed incapable of committing a crime, and if there is no evidence of his knowledge of the wrongfulness of the act, he can not be regarded as an accomplice.-People v. Camp, 26 Cal. App. 385, 147 Pac. 95.

7. Where in a prosecution under section 288 a boy under fourteen was asked whether or not he knew the wrongfulness of the act, and the court sustained the objection on the ground that it was immaterial, there was no prejudicial error unless the counsel crossexamining called the attention of the court to the purpose of his question.-People v. Love, 29 Cal. App. 521, 157 Pac. 9.

8.

Infant under age of seven as witness. -A minor, though under seven years of age, may be sworn in criminal proceeding. -People v. Bernal, 10 Cal. 67, 68. See People v. Swist, 136 Cal. 522, 69 Pac. 223. Mass. Commonwealth v. Reagan, 175 Mass. 335, 339, 78 Am. St. Rep. 496, 56 N. E. 577. Ore. State v. Jackson, 9 Ore. 458. Wis. State v. Juneau, 88 Wis. 180, 182, 43 Am. St. Rep. 877, 24 L. R. A. 857, 59 N. W. 580.

As to children as witnesses, see Kerr's Cyc. Code Civ. Proc. (2d ed.), §§ 1879, 1880 and notes; also 1 Am. Crim. Rep. 185; 3 Am. Crim. Rep. 272; 10 Am. Crim. Rep. 347, 445. 9. Texas rule fixing age of accountability. -In Texas age is fixed at nine years at which accountability begins, subject to presumption of incapacity to age of fourteen.McDaniel v. State, 5 Tex. App. 475; Parker v. State, 20 Tex. App. 451.

10. Under Missouri statute infant under the age of eighteen years is subject to the death penalty, notwithstanding statute exempting him from imprisonment from the penitentiary.-State v. Adams, 76 Mo. 355, 4 Am. Cr. Rep. 392. See State ex rel. Simms v. Barton, 72 Mo. 288.

II. EVIDENCE OF INFANT'S CAPACITYPRESUMPTIONS.

11. Evidence-Capacity to commit crime necessarily includes capacity to confess it. -State v. Aaron, 4 N. J. L. (1 South.) 231, 7 Am. Dec. 592.

12. Same-Confession of infant, effect of. -A mere naked confession of an infant should never be sufficient to take away life; it ought to be accompanied by evidence of facts which could not fail to evince its truth. State v. Aaron, 4 N. J. L. (1 South.) 231, 7 Am. Dec. 592.

13. Same Knowledge of unlawfulness not essential.-If sufficient legal capacity to commit crime is proven, it is not necessary to show actual knowledge by defendant of unlawfulness of act, for, if capacity is established, knowledge may be presumed.— Commonwealth v. Mead, 92 Mass. (10 Allen)

398.

14. Same-Presumption as to incapacity -How overcome.-State must prove infant under fourteen years of age had discretion sufficient to understand nature and illegality of act constituting the offense, and it is not sufficient that accused knew the difference between good and evil, or that he was possessed of intelligence of ordinary boys of his age.-Keith v. State, 33 Tex. Cr. Rep. 341, 26 S. W. 412. See Parker v. State, 20 Tex. App. 451; Carr v. State, 24 Tex. App. 562, 5 Am. St. Rep. 905, 7 S. W. 328.

15. state

Same-Proof of capacity by state.—If would establish infant to be doli capax, prima facie case of incapacity to commit crime must be overcome by "evidence strong and clear beyond all doubt and contradiction."-State v. Adams, 76 Mo. 355, 4 Am. Cr. Rep. 392. See State V. Handley, 4 Harr. (Del.) 566; Angelo v. People, 96 Ill. 209, 36 Am. Rep. 132.

16. Same-Strength of presumption as to incapacity, how varies.-Between the age of seven and fourteen years an infant is presumed to be incapable of committing crime. Upon the same principle, the presumption is very strong at seven and decreases with the progress of his years; but presumption in this case may be encountered by proof, and if it shall appear by strong and irresistible evidence that he had sufficient discernment to distinguish good from evil, to apprehend the nature and consequences of his acts, he may be convicted and have judgment of death.-State V. Aaron, 4 N. J. L. (1 South.) 231, 7 Am. Dec. 592.

17. Question whether, in committing an offense, child acted with intelligence and capacity and an understanding of the unlawfulness of the act charged, is to be determined by the jury upon the evidence and in view of the circumstances attending the alleged criminal transaction.-Commonwealth v. Mead, 92 Mass. (10 Allen) 398. See Rex v. Owen, 4 Car. & P. 236, 19 Eng. C. L. 362.

III. IDIOCY-DEAF MUTES, ETC. 18. Deaf mute from nativity is, in contemplation of law, incapable of guilt, upon presumption of idiocy.-King v. Steel, 1 Leach C. C. 451.

19. Same-Presumption of idiocy arising where a person is a deaf mute from nu