R. 551; State v. Aaron, 7 Am. Dec. 592; Marsh v. Loader, 14 C. B. (N. S.) 535: 3 Lawson Crim. Def. 119; Willet v. Com., 13 Bush, 230.

Evidence is not admissible to rebut this presumption. Barb. Crim. Law, 263; 1 Colby Crim. Law, 3.

§ 19. Presumption of responsibility in general, as to child of seven years or more — evidence as to age.- A child of the age of seven years, and under the age of twelve years, is presumed to be incapable of crime, but the presumption may be removed by proof that he had sufficient capacity to understand the act or neglect charged against him, and to know its wrongfulness. Whenever in any legal proceedings it becomes necessary to deter mine the age of a child, the child may be produced for personal inspection, to enable the magistrate, court or jury to determine the age thereby; and the court or magistrate may direct an examination by one or more physicians, whose opinion shall also be competent evidence upon the question of age. A copy of the record of baptism of any child in any parish register, or register kept in a church, or by a clergyman thereof, or a certificate of baptism duly authenticated by the person in charge of such regis ter; or who administered said baptism, and also a transcript of the record of birth recorded in any bureau of vital statistics or board of health, duly authenticated by its secretary or under its seal, and the entries made in a family Bible, shall also be competent evidence upon the question of the age.

See Laws 1888, chap. 145.

The common law presumes an infant under fourteen incapable of committing crime, but this presumption is only prima facie. Unless proof of capacity be given, the jury must acquit. People v. Davis, 1 Wheel. C. C. 230; People v. Teller, id. 231; People v. Randolph, 2 Park. Cr. 174; People v. Walker, 5 City Hall Rec. 137; Stage's Case, id. 177; Barb. Crim. Law, 262; State v. Tice (Mo.). 6 West. Rep'r, 677; State v. Adams, 76 Mo. 355; Willet v. Com., 13 Bush, 230; Stone v. Dry Dock Co., 115 N. Y. 109.

A charge of felony can be established against an infant of eleven years of age, only by the strongest and clearest proof of his capacity to entertain a criminal intent. Angelo v. People, 96 Ill. 29; 36 Am. Rep. 132; 3 Lawson Crim. Def. 123.

A male infant, about twelve years old, put his hand over the mouth of a girl ten years old, while his elder brother attempted to commit a rape upon her. Held, not sufficient to warrant his conviction as principal in the second degree. Law v. Com., 75 Va. 885; 40 Am. Rep. 750.

An infant may be convicted of Murder.- Rex v. York, Foster, 70; 1 Bennett & Heard Lead. Cas. 71; Godfrey v. State, 31 Ala, 323.

Manslaughter.-1 Arch. Cr. Pl. 13; Irby v. State, 32 Ga. 496.

Rape. If it is proved that he has reached the age of puberty, and is capable of committing the crime. Penal Code, § 279; Com. v. Green, 2 Pick.

380.

Felony.- Angelo v. People, 36 Am. Rep. 132.

Breach of the peace.- Bullock v. Babcock, 3 Wend. 391.

False pretenses.- People v. Kendall, 25 Wend. 399; Doran v. Smith, 49 Vt. 353.

Nuisance. An infant of tender age is not responsible for maintaining. People v. Townsend, 3 Hill, 479.

Age.- Under the act of 1882, chap. 340, which was incorporated in the above section in 1888 (Laws 1888, chap. 145), a magistrate has the power to determine the age of the child by personal inspection, and he is not obliged to direct an examination by a physician for that purpose. Matter of Serafino, 66 How. Pr. 178.

The court may rely upon its own judgment as to the child's age. People v. Cardillo, N. Y. Gen. Sess., Jan., 1883. Contra, Shinger v. State, 53 Ind. 251; 28 Eng. Rep. 516.

The magistrate is justified in disregarding the statement made by the child that he is sixteen years of age if his appearance warrants his belief that he is a child under that age; that being the only evidence, the question of age is one of fact entirely for the magistrate. Reg. v. Viasani, 31 Justice of the Peace, 260; 15 L. T. (N. S.) 240; State v. Arnold, 13 Ired. 184.

The jury have the right to determine the age by personal inspection and by general appearance in connection with other competent evidence. People v. Plath, 3 N. Y. Cr. Rep. 129; reversed on other grounds, 100 N. Y. 590; People, ex rel. Zeigler, v. Special Sessions, 10 Hun, 224; People v. Townsend, 3 Hill, 479; People v. Stott, 4 N. Y. Cr. Rep. 388. Contra, Shinger v. State, 53 Ind. 251. "An entry in a family Bible has been considered to derive credit from the circumstances of its being entered in a book which is kept as the ordinary register of families, and as admissible, therefore, on account of its publicity in the family, without proofs that such entry was made by a member of the family. But memoranda inserted in other books, as an album, a missal, prayer book, and any other family documents and papers, have been admitted in evidence to show the fact of date of the birth, marriage or death of a child, or other relative of the family. This latter class of entries, however, should be shown either to have been acknowledged or treated by the relatives as a correct family memorial; or, in the case of ancient writings, at least, that they were made at the period when they purport to have been written." 1 Phillips Ev. 255; 1 Greenl. Ev., § 104.

An entry of the date of the birth of a child, made by the father in a family Bible, is not admissible to prove the date of such birth, where the father is living and no effort to find and produce him is shown. People v. Sheppard, 5 N. Y. Cr. Rep. 132; 55 Hun, 565.

An infant may testify as to his own age. Banks v. Metcalfe, 1 Wheel. Cr. Cas. 381; Cheerer v. Congdon, 34 Mich. 296; Morrison v. Emsley, 53 Mich. 564; Central Railroad Co. v. Coggin, 73 Ga. 689; Whart. Ev. (3d ed.). § 208. See also as to proof of age, 28 Eng. Rep. 516; 37 id. 702; 37 Alb. L. J. 130; 10 Am. and Eng. Encyc. of Law, 697; Whart. Ev. (3d ed.), §§ 512, 653; Code Civ. Proc., § 933.

§ 20. Irresponsibility, etc., of idiots, lunatics, etc.-An act done by a person who is an idiot, imbecile, lunatic or insane, is not a crime. A person cannot be tried, sentenced to any punishment or punished for a crime when he is in a state of idiocy, imbecility, lunacy or insanity so as to be incapable of understanding the proceeding or making his defense.

See notes under next section.

§ 21. Irresponsibility, etc., of idiots, lunatics, etc.—A person is not excused from criminal liability as an idiot, imbecile, lunatic, or insane person, except upon proof that, at the time of committing the alleged criminal act, he was laboring under such a defect of reason as either,

1. Not to know the nature and quality of the act he was doing; or

2. Not to know that the act was wrong.

For discussions of the subject of insanity as a defense to crime, see 1 N. Y. Cr. Rep. 29; Abbott Trial Brief (Cr. Causes.) 333, 461; 12 Alb. L. J. 150; 13 id. 210; Guiteau's Case, 10 Fed. Rep. 161, and notes by Desty and Wharton, 189-204; 1 Crim. Law Mag. 32, 431; 7 id. 431, 567; 12 id. 1; 16 Cent. L. J. 282; 2 Am. and Eng. Encyc. of Law, 658; 4 id. 715; 31 Am. Rep. 360; 35 id. 20; 38 id. 375; 36 id. 462, 795; 45 id. 397; 44 id. 426; 46 id. 778.

Weakness of intellect, not amounting to insanity, is no defense. Patterson v. People, 46 Barb. 625; Wartina v. State, 105 Ind. 445; Conway v. State, 118 id. 482; 11 Crim. Law Mag. 640; Anderson v. State, 25 Neb. 550.

A lunatic is responsible for a crime committed during a lucid interval. Clark's Case, 1 C. II. Rec. 176.

But where previous insanity is proved, the crime was committed during a lucid interval. Pr. (N. S.) 207.

prosecution must show that the People v. Montgomery, 13 Abb.

Insanity resulting from intermittent fever, etc. People v. Beno Ville, 3 Abb. N. C. 195.

A phrenzy, which is the result of violent passion, will not excuse the commission of a crime. Pierrovis' Case, 3 C. H. Rec. 123; Sanchez v. People, 4 Park. 535; 18 How. 72; 22 N. Y. 147.

What facts may be given in evidence to show insanity on part of the prisoner. Lake v. People, 1 Park. 495.

Moral insanity not recognized as an excuse for crime.. 12 Crim. Law Mag. 7; Charci v. State, 31 Ga. 424; Guiteau's Case, 10 Fed. Rep. 161; 4 Crim. Law Mag. 586; Boswell v. State, 63 Ala. 307; 35 Am. Rep. 20; 2 Crim. Law Mag. 32; People v. Kerrigan, 73 Cal. 222; State v. Potts, 100 N. C. 457.

See, however, People v. Kleim, 1 Edm. Sel. Cas. 13; People v. Devine, id. 594; People v. Pine, 2 Barb. 566; Krom v. Schoonmaker, 3 id. 467.

It is no defense that in consequence of an uncontrollable influence a prisoner had no power over his will. Waltz's Case, 50 How. Pr. 204.

If a person retains the use of his reason, there is no such thing as uncontrollable impulse to commit crime. Waltz's Case, 50 How. Pr. 204. See, also, 4 Crim. Law Mag. 586; Bolling v. State, 16 S. W. Rep'r, 658.

Where the evidence has disclosed no circumstance indicating that the crime was committed under the influence of provocation at the time or sudden anger, it is not error to exclude evidence that the accused was irascible and subject to fits of passion from slight cause. Sindram v. People, 88 N. Y. 196.

Where the defense is that defendant was an epileptic, and that the homicide was the unconscious result of epileptic mania as bearing upon the issue so presented, the absence of motive is important. People v. Barber, 115 N. Y. 475. As to what facts necessary to excuse an epileptic, see Stauderman's Case, 3 Abb. N. C. 187; Jenisch's Case, id. 200.

Evidence that the prisoner's father was afflicted with epilepsy, and that epilepsy is hereditary, is competent in murder case. Walsh v. People, 88 N.

Y. 458.

Insanity cannot change the crime of homicide from one degree to another. Sindram v. People, 1 N. Y. Cr. Rep. 148; affirmed, 88 N. Y. 196.

One mentally deranged so as not to be able to conduct his defense cannot be tried. Peacock v. State, 50 N. J. L. 34.

The doctrine of irresponsibility for a crime committed by a person who had sufficient mental capacity to comprehend the nature and quality of his act and to know that it was wrong, on the ground that he had not the power to control his actions, is not the law of this State. Walker v. People, 88 N. Y. 86; 1 N. Y. Cr. Rep. 27; People v. Coleman, id. 1; Casey v. People, 31 Hun, 158; 2 N. Y. Cr. Rep. 187; People Walworth, 4 id. 355; People v. Carnell, 2 Edm. Sel. Cas. 200; Willis v. People, 32 N. Y. 715; 5 Park. 621; Flanagan v. People, 52 N. Y. 467; Wagner v. People, 2 Keyes, 684; 4 Abb. Dec. 509; People v. Waltz, 50 How. Pr. 204; 3 Abb. N. C. 209; People v. Kleine, 1 Edm. Sel. Cas. 13; People v. Montgomery, 13 Abb. Pr. (N. S.) 207; People v. Moett, 23 Hun, 60; People v. Sprague, 2 Park. 43.

See. also, State v. Murray, 11 Ore. 413; People v. Hoin, 62 Cal. 120; 45 Am. Rep. 651; State v. Lewis, 12 Crim. Law Mag. 72, 85; United States v. Young, 7 id. 732; State v. Bundy, 24 S. C. 439; 58 Am. Rep. 262; Cunningham v. State, 56 Miss. 269; 31 Am. Rep. 360; State v. Mowry, 37 Kan. 369; State v. Potts, 100 N. C. 457; United States v. Faulkner, 35 Fed. Rep. 730; Kearney v. People, 11 Colo. 258.

A person must not only know that an act is unlawful and morally wrong, but he must have reason sufficient to apply such knowledge and be controlled by it. Mc Farland's Trial, 8 Abb. Pr. (N. S.) 57.

Influence of spirits is no defense where a knowledge of right and wrong exists. People v. Waltz, 50 How. 204.

Delirium tremens, like insanity, if it deprive one of the capacity of knowing right from wrong, saves him from any criminal responsibility from his acts. People v. Carpenter, 102 N. Y. 250; 4 N. Y. Cr. Rep. 187; O'Connell v. People, 87 N. Y. 377; 62 How. 436; Erwin v. State, 10 Tex. App. 700; Guiteau's Case, 3 Crim. Law Mag. 358; Reg. v. Davis, 14 Cox Cr. Cas. 563; 28 Eng. Rep. 657; O'Brien v. People, 48 Barb. 274.

See, also, Real v. People, 55 Barb. 551; 42 N. Y. 270; Willis v. Com. (Va.), 22 Alb. L. J. 176.

Where the court has charged the jury as to what constitutes insanity, it is not error to refuse to charge that if the jury find that defendant at the time the offense was committed was suffering from delirium tremens, or any other species of insanity, they must acquit. People v. Mills, 98 N. Y. 176.

A request to charge that if in consequence of some disease defendant had not sufficient use of his reason to control the passions which prompted the act, the jury must acquit, is erroneous as excluding the question of his capacity to distinguish between right and wrong. People v. Mills, 98 N. Y. 176.

One who, by reason of mental disease, has lost the power of will to control his actions and choose between right and wrong is not responsible to the criminal law for an act which is solely the product of such disease, although he may know right from wrong. Parsons v. State, 81 Ala. 577; 60 Am. Rep. 193; 36 Alb. L. J. 249.

The learned editor of the Albany Law Journal (36 Alb. L. J. 221) remarks on this case as follows: "The opinion by Judge Somerville is ingenious and learned, but it by no means satisfies us that the commonly received test of the ability to distinguish between right and wrong is unjust and not the safest rule to society, and it necessarily and explicitly overrules the doctrine of the same court in the Boswell Case, on the subject of insane delusions. See 63 Ala. 307: 35 Am. Rep. 20. It is possible that the doctrine now adopted in Alabama may have been previously adopted in New Hampshire, and perhaps in one or two other States, as we understand Judge Somerville to make claim, but it is certain that the vast preponderance of judicial opinion is the other way." In an article on 66 Insanity and Criminal Responsibility" (12 Crim. Law Mag. 1) the writer says: 'Common sense, reason and the weight of legal authority sustain the doctrine that if a person commits a crime, and at the time knows he is doing wrong, he should be held criminally responsible for his act This is the only doctrine that will protect our social relations, uphold morality and religion. Speculative philosophy and phrenological interpretation of the state of the mind is no test as to one's insanity and are incompatible with the principles of rational psychology.'

Burden of proof. — In Brotherton v. People, 75 N. Y. 159, Church, Ch. J., used the following language: "Crimes can only be committed by human beings who are in a condition to be responsible for their acts; and upon this general proposition, the prosecutor holds the affirmative, and the burden of proof is upon him. Sanity being the normal and usual condition of mankind, the law presumes that every individual is in that state. Hence a prosecutor may rest upon that presumption without other proof. The fact is deemed to be proved prima facie. Whoever denies this, or interposes a defense based upon its untruth, must prove it. The burden, not of the gen eral issue of crime by a competent person, but the burden of overthrowing the presumption of sanity and of showing insanity, is upon the person who alleges it; and if evidence, is given tending to establish insanity, then the general question is presented to the court and jury whether the crime, if committed, was committed by a person responsible for his acts; and upon this question the presumption of sanity and the evidence are all to be considered, and the prosecutor holds the affirmative, and, if a reasonable doubt exists as to whether the prisoner is sane or not, he is entitled to the benefit of the doubt, and to an acquittal."