46

may judge of the age from the child's appearance before them, and in a recent case in New York it was held that where the defense of infancy depended on the defendant's uncorroborated testimony the jurors were authorized to consider his personal appearance, and, if it was such as to render his nonage at the time of the transaction in question improbable, they could disregard his testimony as to his age. So, as elsewhere shown, age may be proved by entries in the family Bible, registers of birth and family tradition in proper cases.48

47

§ 2274. Admissions and testimony of infant.-The admissions of a party made during nonage are evidence against him, in a proper case, and a promise after majority "to pay what I owe," when connected with such admission, is sufficient.49 Thus, in an action to recover money lent to an infant his admissions of the amount received by him, though made during his infancy, are admissible as evidence of the sum loaned.50 And it has frequently been held that the acts and admissions of a minor relative to the subject matter of his suit are admissible in evidence against him, although his infancy may be shown to lessen their effect, and the weight to be attached to them must depend upon the circumstances.51 But, in an action by an infant by guardian ad litem, a letter written by such guardian to defendant is not admissible.52 An infant may testify, in a proper case, as to his age at the time of a certain transaction. Thus, in an action for goods sold and delivered, to which the defense is infancy, the defendant may testify that he was of a certain age at the time of the sale.53

48 Vol. I §§ 317, 373, 375, 377.

49 Ackerman v. Runyon, 1 Hilt. (N. Y.) 169, 3 Abb. Prac. 111, so his admissions and declarations as to his age are admissible against him; State v. Joest, 51 Ind. 287, and he may testify as to his own age; State v. Best, 108 N. Car. 747, 12 S. E. 907.

50 Ackerman v. Runyon, 1 Hilt. (N. Y.) 169, 3 Abb. Pr. (N. Y.) 111. 61 Hamblett v. Hamblett, 6 N. H. 333.

52 Chipman v. Union Pac. R. Co., 12 Utah 68, 41 Pac. 562.

53 Hill v. Eldridge, 126 Mass. 234.

§ 2275. Evidence in general.-In the federal court it has been decided that infancy may be given in evidence, in an action of trover, on the plea of not guilty, not as a bar, but to show the nature of the act which is supposed to be a conversion. In a suit by a minor for wages for labor defendant offered to prove that he had furnished a home, schooling, clothing and washing to the minor as a return for the labor, and in accordance with an agreement between defendant and an older brother of the minor. It was held that this evidence was admissible, for if the minor knew of the agreement and acted under it he thereby gave his assent to, and was bound by, it.55 Evidence of a new consideration moving to a minor who has reached his majority has been held unnecessary in order to hold him to his original agreement when he has made a promise after reaching his majority. Thus, where a minor purchased lands and two of his friends of full age gave their joint note for the purchase money which the minor promised he would sign and pay on arrival at full age, and afterwards having come to full age, by a memorandum on the bottom of the note he acknowledged himself a co-surety. In an action by a payee against him as an original promisor it was held that the promise was for the defendant's debt, and proof of new consideration was unnecessary.56 It has been held where the only evidence in support of a defense of infancy is that of the defendant alone, although it is uncontradicted on that point, but contradicted on other material facts, the jury may properly deem defendant's testimony insufficient to support his plea of infancy. When a question arises as to the capacity of an infant to entertain a criminal intent it would seem that no witness, and certainly no ordinary witness, should be heard to testify in so many words that he did or did not have such capacity, but it has been held that witnesses who are acquainted with him may testify that he was or was not bright or of quick mind.58 It has also been held that the testimony of experts may be received to prove capacity

57

Vasse v. Smith, 6 Cranch (U. S.) 226.

Squier v. Hydliff, 9 Mich. 274. 5 Thompson v. Linscott, 2 Me. 186, 11 Am. Dec. 57.

57 Klason v. Rieger, 22 Minn. 59. 59 Martin v. State, 90 Ala. 602, 24 Am. St. 844.

50 State v. Nickleson, 45 La. Ann. 1172, 14 So. 134, but the question in this case was as to the intelligence of the accused, and it does not appear that the witness was asked to express an opinion upon the exact point of mental capacity to entertain a criminal intent, al

for committing crimes. And circumstantial evidence is admissible on such question.60

though the court referred to opinions as to insanity as being analogous.

(Mass.) 380; State v. Handy, 4 Harr. (Del.) 566; see also, Carr v. State, 24 Tex. App. 562, 5 Am. St.

60 Commonwealth v. Green, 2 Pick. 905, and note.

CHAPTER CIX.

Sec.

2276. Presumptions.

2277. Burden of proof.

INSANITY.

2278. Question of law or fact.
2279. Inquisition and records as ev-
idence on question of insan-
ity.

2280. Conduct and appearance as
evidence of insanity.

2281. Insanity at time in question— Evidence as to insanity at other times.

2282. Evidence of conduct in other

Sec.

2284. Letters and diaries.
2285. Nature of act in question as
evidence of insanity.

2286. Absence of motive as evidence
of insanity.

2287. Suicide as evidence of insanity.

2288. Evidence of insanity of ancestors.

2289. Reputation as evidence of insanity.

2290. Opinion evidence-Experts. matters and at other times. 2291. Declarations.

2283. Instruments executed by par

the

ty claimed to be insane.

§ 2276. Presumptions.-The general rule, as elsewhere shown, in both civil and criminal cases, is that all persons who have reached age of discretion are presumed to be sane until the contrary is shown.1 But when permanent or habitual insanity is once established it is presumed to continue; and it is said in many cases that the party who would take advantage of the fact of restoration to a sane condition or of a lucid interval of reason, must prove it. It is not

'Vol. I, § 126, and numerous authorities there cited.

2

Robeson, 2 Harr. (Del.) 375; Armstrong v. State, 30 Fla. 170, 11 So. * Attorney-General v. Parnther, 3 618; Terry v. Buffington, 11 Ga. 337, Bro. (U. S.) 441; Osmond v. Fitz- 56 Am. Dec. 423; Emery v. Hoyt, roy, 3 P. Wms. 129; Stevens v. Van- 46 Ill. 258; Langdon v. People, 133 cleve, 4 Wash. (U. S.) 262; Hoge v. Ill. 382, 24 N. E. 874; Rush v. MeFisher, Pet. (U. S.) 163; Pike v. gee, 36 Ind. 69; Wade v. State, 37 Pike, 104 Ala. 642, 16 So. 689; Saxon Ind. 180; Corbit v. Smith, 7 Iowa V. Whitaker, 30 Ala. 237; McDaniel 60, 71 Am. Dec. 431; State v. Redv. Crosby, 19 Ark. 533, 545; People dick, 7 Kans. 143; Chandler v. Barv. Francis, 38 Cal. 183; Duffield v. rett, 21 La. Ann. 58, 99 Am. Dec.

necessary, however, to show that the person has been restored to the full possession of his former mental vigor. The test of his mental capacity is the same as if he had never been insane, and a comparison of his present with his former mental strength is generally irrelevant or at least of no use. And the rule that where insanity is once shown it is presumed to continue, does not apply when it is merely temporary in its nature.*

§ 2277. Burden of proof.-As sanity, rather than insanity, is presumed, the burden of proving insanity is often said to be upon the party asserting such insanity." Thus, the burden of proving