the jury that the child, when committing the act, must have known that he was doing wrong, is well illustrated by the case of Rex v. Owen, 4 Car. & P. 236, 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: 1. Did the prisoner take the coals? and 2. 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 offense, 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 she has not sufficient capacity to know that it is wrong, and such person ought not to be convicted, unless there be evidence to satisfy the jury that the party, at the time of the offense, 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." So in People v. Davis, 1 Wheel. 230, in an indictment for larceny, the defendant being not yet fourteen years old by a few weeks. The taking was clearly proved, but no evidence was offered of his capacity to commit crime, and the jury was instructed that the law presumes an infant under fourteen incapable of committing crimes, "and in order to show his liability, it was necessary to prove his capacity;" and there being no evidence either way upon the point, the defendant was acquitted. This doctrine was again distinctly affirmed in Queen v. Smith, 1 Cox C. C. 260. In Willet v. Commonwealth, 13 Bush, 230, it was held that a sense of moral guilt only on the part of an infant twelve years of age, in the absence of a knowledge of his legal responsibility for his wrongful act, will not authorize a conviction.

Confessions of an infant.-The question has been much discussed, whether the confessions of an infant are admissible against him in proof of the commission of crime; and it has been sometimes thought that as in a civil case an infant is not bound by his admissions and declarations, so in a criminal case his declarations of his own guilt are not admissible; and if so, are not a sufficient proof of the the commission of the crime. But this reasoning seems not to be supported, and it is well settled upon the authorities that the confessions of an infant, if otherwise competent, are admissible against him, in the same manner as confessions of adults: Rex v. Wild, 1 Moo. C. C. 452; Rex v. Upchurch, Id. 465; Mather v. Clark, 2 Aik. 209; Commonwealth v. Zard, cited in Roscoe on Ev. 31, note; State v. Bostick, 4 Harr. 563. This question seems to have received more consideration in this country than in England. Thus in State v. Aaron, 5 N. J. L. 231, a slave of the age of ten years and ten months was indicted for murder, and it was much discussed whether his confessions of the crime were admissible in evidence. It was held that they were admissible, but to furnish the grounds of a conviction they ought to be clear and pregnant, and corroborated by cir

cumstances, and made understandingly. One of the most striking criminal trials to be found on record was that of State v. Guild, 11 N. J. L. 163; S. C., 18 Am. Dec. 404. There the prisoner, aged twelve years and five months, was indicted for the murder of Catherine Beakes; his own confessions were the principal evidence, the corpus delicti being otherwise proved. The court held this sufficient, and the boy was convicted and executed.

By section 1880, Code of Civil Procedure, subd. 2, children under ten years of age, who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly, are not entitled to be witnesses: See People v. Bernal, 10 Cal. 66,

Subd. 2. Idiots: See infra.

Subd. 3. Insanity-Definitions and clas sifications.-This word, in modern times, has been used to designate all mental impairments and deficiencies, and includes in it the terms "lunacy," "idiocy," and "unsoundness of mind." The common law originally recognized but two kinds of insanity, idiocy and lunacy, the subjects of which were designated by the term "non compotes mentis," which was used as a generic term. In addition to this old division, the modern cases often employ a classification originating with Esquirol, and which, as restated by Dr. Hammond, is substantially as follows:

Melancholia.-Perversion of the understanding in regard to an object or a small number of objects, with the predominance of sadness and depression of mind.

Monomania.-Perversion of understanding limited to a single object, or a small class of objects, with predominance of mental excitement.

Mania.-A condition in which the perversion of understanding embraces all kinds of objects, and is attended with mental excitement.

Dementia.-A condition in which those affected are incapable of reasoning, from the fact that the organs of thought have lost their energy, and the force necessary for performing their functions.

Imbecility or idiocy.-A condition in which the organs have never been sufficiently well conformed to permit those affected to reason correctly.

Ray on Medical Jurisprudence of Insanity, sec. 49, gives a tabulated view of the subject, interesting in showing the refinement to which distinctions have been carried.

Rules by the English judges.-In the dis cussion which occurred in the house of lords in 1843, the opinions of the judges, in answer to the questions propounded to them, established in England the following rules relative to crimi. nal responsibility:

1. A person who labors under partial delusions only, and is not in other respects insane, notwithstanding he may do the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some public benefit, is nevertheless punishable according to the nature of the crime committed, if he knew at the time of committing such crime that he was acting contrary to law.

2. The jury are to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be

responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was laboring under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know he was doing what was wrong.

3. If a person labors under a partial delusion, and is in other respects sane, he is to be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real.

4. A medical man conversant with the disease of insanity, who never saw the prisoner previously to the trial, but who was present during the whole trial and the examination of all the witnesses, cannot be asked his opinion as to the state of the prisoner's mind at the time of the commission of the alleged crime, nor his opinion whether the prisoner was conscious at the time of doing the act that he was acting contrary to law, or whether he was laboring under a delusion: 1 Car. & Kir. 130.

In the United States, the three rules first given have not always been strictly followed, the instructions given to juries being in many cases much more favorable to the accused. Thus, in a late and leading case, where a full discussion and examination of the authorities was had, it was held that neither delusion nor knowledge of right and wrong, nor design or cunning in planning and executing the deed, and escaping or avoiding detection, nor ability to recognize acquaintances, or to labor, or transact business, or manage affairs, is, as a matter of law, a test of mental disease; but all symptoms and all tests of mental disease are purely matters of fact to be determined by the jury: State v. Jones, 50 N. H. 369.

Presumption of sanity.—Ordinary experience teaches that the majority of men are sane; consequently it is to be presumed that a defendant was sane at the time he committed the act with which he is charged, until it is proved that he is insane. See an article on Presumptions in Criminal Cases by Wharton, 1 Crim. Law Mag. 32. The burden of proof is on the defendant, but proof beyond a reasonable doubt is not required; the insanity must be established by such a preponderance of evidence that if the question were submitted to the jury in a civil case they would find the defendant insane: People v. Coffman, 24 Cal. 230; People v. Myers, 20 Id. 518; People v. McDonell, 47 Id. 134; People v. Wilson, 49 Id. 13; People v. Bell, Id. 485; People v. Ferris, 55 Id. 588; Com monwealth v. Eddy, 7 Gray, 583; Walter v. People, 32 N. Y. 147; Ferris v. People, 35 Id. 125; Loeffner v. State, 10 Ohio St. 599; State v. Lawrence, 57 Me. 574; Hopps v. People, 31 Ill. 385; State v. Felter, 32 Iowa, 50. Other states have held that the jury should acquit if there is a reasonable doubt as to sanity. It is said that as no insane person can commit a crime, it necessarily follows that if the jury have a reasonable doubt of the defendant's sanity, they must also have a reasonable doubt of his guilt. To doubt his sanity is to doubt his guilt, and to doubt his guilt, if the doubt be a reasonable one, is to acquit: State v. Crawford, 11 Kan. 32; Polk v. State, 19 Ind. 170; State v. Jones, 50 N. H. 369.

Where defendant is proved to have once been insane, it is to be presumed, until the contrary is shown, that he continued insane, unless the insanity proved was accidental or temporary in its nature, or was occasioned by the violence of disease: People v. Farrell, 31 Cal. 576; People Francis, 38 Id. 183; 1 Whart. Crim. L., 7th ed. sec. 55; 1 Greenl. Ev., sec. 42.

Presumption of insanity at time of commission of the act from insanity a short time prior thereto: People v. Smith, 57 Cal. 130.

Insanity-Instructions.-It has been held that an instruction that the true test of insanity is whether the accused, at the time of committing the crime, was conscious that he was doing what he ought not to do, was correct: People v. Hobson, 17 Cal. 424; People v. McDonell, 47 Id. 134; And that before the jury can believe the defendant insane at the time of the commission of the act, it must first be shown that he had been insane at some prior time, or has been subsequently insane: People v. March, 6 Id. 543. And an instruction given for the purpose of impressing upon the jury the importance of special care and circumspection in considering the evidence tending to establish the insanity of a defendant at the time of the commission of the offense charged is proper: People v. Dennis, 39 Id. 625. An instruction that if the jury find that the defendant was insane at the time of the commission of the act they should declare him not guilty is too broad, and is not law: People v. Best, 39 Id. 690. Neither should the court instruct the jury that if the evidence creates a reasonable doubt in the minds of the jury as to the sanity of the defendant at the time he committed the act he should be acquitted. The law presumes a person sane, and if insane, he must prove it by a preponderance of evidence: People v. Myers, 20 Id. 518.

Where the court gave the jury two separate instructions as to the degree of proof required to establish insanity of defendant, one of which correctly stated the law but the other did not, a new trial was granted: People v. Messersmith, 61 Cal. 246; and see next paragraph.

Insanity, Evidence of.-Where the accused relies on the defense of insanity, "he is bound to establish it by such a preponderance of evidence that if the question were submitted to the jury in a civil case they would find him insane:" People v. Messersmith, 61 Cal. 246, 248, citing People v. Coffman, 24 Id. 230; People v. McDonell, 47 Id. 134; People v. Wilson, 49 Id. 13; People v. Ferris, 55 Id. 588; and People v. Walker, 88 N. Y. 81.

Proof of insanity.-People v. Wreden, 59 N. Y. 392, criticised in People v. Hamilton, 62 Id. 377, 384, where the amount of evidence to warrant acquittal is stated. It may be shown in evidence, under the plea of not guilty, that defendant was insane at the time the act was committed: People v. Olwell, 28 Cal. 456. If there is any evidence tending to prove the personal insanity of defendant, or if the act committed was apparently without motive, the defendant should be permitted to introduce evidence of the insanity of his parents: People v. Smith, 31 ld. 466. That insanity cannot be proved by general reputation or by the belief of members of the person's family, see People v. Pico, 62 Id. 50. Or as to the testimony of acquaintances, see same case. A witness, not an expert, who details a conversation had between

himself and another, may also, in connection therewith, state his opinion as to the state of mind of such person at the time of the conversation: People v. Sanford, 43 Id. 29. In proof of insanity, though the evidence must relate to the time of the act in question, yet evidence of insanity before and after that time is admissible: People v. Farrell, 31 Id. 576.

Evidence that a wife had confessed to her husband her criminal intercourse with the deceased is admissible as showing him to have lost his reason thereby, but independent evidence of her entering a house of assignation with deceased is not admissible. It is not the truth of her statement, but its effect upon the defendant's mind, that is the point to be considered: People v. Hurtado, 63 Cal. 288.

Irresistible impulse is not the insanity constituting a legal defense: People v. Hoin, 62 Cal. 120.

Acquittal on the ground of insanity: Sec.

1167.

Submitting question of sanity to a jury: Sec. 1368.

Plea of insanity as an answer to an indictment: See an article by John Ordonaux in 1 Crim. L. Mag. 431.

Subd. 4. Ignorance or mistake to negative criminal intent. The maxim of the law as to crime is, Ignorantia facti excusat. Ignorance or mistake of fact is generally admissible for the purpose of negativing a particular intention. Ignorance or mistake is another defect of will, when a man, intending to do a lawful act, does that which is unlawful. For here, the deed and the will acting separately, there is not that conjunction between them which is necessary to form a criminal act. But this must be an ignorance or mistake of fact, and not an error in point of law. As if a man, intending to kill a thief or house-breaker in his own house, by mistake kills one of his own family, this is no criminal action; but if a man thinks he has a right to kill a person excommunicated or outlawed wherever he meets him, and does so, this is willful murder. For a mis take in point of law, which every person of discretion not only may but is bound and presumed to know, is in criminal cases no sort of defense:" 4 Bla. Com. 27.

In Myers v. State, 1 Conn. 502, the defendant was indicted for letting his carriage on Sunday, in a case not of necessity or charity. It was held that if the defendant, when he let his carriage, really believed that a case of necessity or charity existed, there was no guilty intent, and consequently no crime. So where a man, supposing that he was killing a thief in his own house, killed one of his own family, he was held not guilty, for he did it ignorantly, without intention of hurt to the said Frances:" Levett's Case, Cro. Car. 538; see also United States v. Pearce, 2 McLean, 14; Commonwealth v. Rogers, 7 Met. 500; Commonwealth v. Kirby, 2 Cush. 577; Regina v. Alladay, 8 Car. & P. 136; Commonwealth v. Presby, 14 Gray, 65; 1 Whart. Crim. L., 8th ed., sec. 87. Where, however, a scienter is irrelevant, ignorance or mistake of fact is no excuse. Thus where a statute makes an act indictable, irrespective of guilty knowledge, then ignorance of fact is no defense: Farmer v. People, 77 Ill. 322; State v. Heck, 23 Minn. 549; State v. Stimson, 24 N. J. L. 478; State v. Melville, 11 R. I. 417; see article

by Mr. Bishop in 4 Southern L. Rev. 155 et seq.; 1 Whart. Crim. L., 8th ed., sec. 88.

Subd. 5. Want of knowledge of the act. As to the criminal responsibility resulting from the commission of an unlawful act, by a person who is intoxicated, see section 22, note.

Subd. 6. Indictable negligence.-"A negligent offense is an offense which ensues from a defective discharge of a duty, which defect could have been avoided by the exercise, by the offender, of that care which is usual, under similar circumstances, with prudent persons of the same class. Negligence is of two kinds: culpa levis, which is the lack of the dil igence and care usual with good specialists of the particular class under the circumstances; and culpa lata, which is the lack of the diligence and care exercised by honest and worthy non-specialists dealing with similar objects. In criminal cases this distinction operates mainly to determine the degree of evidence required to convict:" 1 Whart. Crim. L., 8th ed., sec. 125.

In the note to Rex v. Hull, 1 Ben. & Heard's Lead. Cas. 51, will be found a very profitable discussion upon the subject of criminal negligence. It is there stated that a criminal intent may be, and should be, inferred from any wanton or reckless conduct which results in an injury to another's rights. "For, as every one is by law presumed to intend the natural and ordinary consequences of his acts, if, therefore, he is guilty of that degree of negligence which naturally and ordinarily leads to a certain result, he must be considered to have actually intended such result, and he is criminally responsible, as justly as if his conduct proceeded from actual malicious motives. Accordingly, we find it a well-established principle of criminal law, that if injuries are caused to a person's life or health, by acts which, if willful, would be punishable as crimes, the offender cannot screen himself from criminal responsibility under the plea that such injury was caused by his negligence merely, and without positive malicious motive. The degree of the crime may not be the same as if the act was done with actual malice, but the character of a crime still remains, and the perpetrator is liable to be arraigned at a criminal bar. And wherever a public law imposes a public duty, absolute in its character, and not subject to discretion, the simple omission to perform such duty is indictable: " Id. 51, 52. In Rex v. Carr, 8 Car. & P. 163, the defendant was employed to cast some cannon. One of them, on being fired, burst, and was sent back to be recast. The defendant, instead of recasting it, filled up the hole with lead, and returned it. On being again fired, it burst the second time, and killed the deceased. Defendant was convicted of manslaughter. So in People v. Fuller, 2 Park. Cr. 16, it was held that a person who carelessly discharged a gun loaded with ball, into the highway, when it was dark, and thereby unintentionally killed a man who was passing, and whom he did not see, was guilty of manslaughter. See generally, upon this subject, Rex v. Grout, 6 Car. & P. 629; Rex v. Timmins, 7 Id. 499; Queen v. Dalloway, 2 Cox C. C. 273; Regina v. Murray, 5 Id. 509; Regina v. Dant, 10 Id. 102; People v. Fuller, 2 Park. Cr. 16; Commonwealth v. McLaughlin, 5 Allen, 507.

Indictable omissions.-Mr. Wharton thus classifies such omissions as are indictable:

1. Omissions constituting defects in the performance of duties which have been undertaken. Under this head fall most of the adjudicated cases of so-called omissions; e. g., omissions by switch-tenders to turn switches, of telegraph operators to send messages, of physicians to give required attention to patients, etc.

2. Omissions constituting defects in the performance of duties which have not been eo nomine undertaken, i. e., non-contractual duties. 1. From the standpoint of general civic duty, the chief illustration of which is the omission of an accessary after the fact to notify the government of a felony; 2. From the standpoint of official duty, as where an officer whose duty it is to make an arrest neglects to do so; 3. From the police standpoint, as where a person neglects to cover a ditch or well belonging to him, over which he knows travelers are accustomed to pass, or to cleanse a defective drain: 1 Whart. Crim. L., 8th ed., sec. 131. In Rex v. Allen, 7 Car. & P. 153, and Rex v. Green, Id. 156, it was held that a negligent act of omission was not punishable criminally; that to be punishable criminally, some act must be done negligently, by which a person is injured, not the mere omission to do an act, although thereby a person is injured. These cases were. indictments for manslaughter against the captain and pilot of a steamboat for the death of a person on board of a smack, caused by running the smack down. The want of a sufficient lookout at the bow of the boat was regarded as the cause of the accident. Parke, J., in reply to Chambers, for the prosecution, said: "You must show some act done. You rather state it as if a mere omission on the part of the prisoner in not doing the whole of his duty would be enough; and we are of opinion that is not sufficient." And Alderson, B., said: "There must be some personal act." In Regina v. Lowe, 4 Cox C. C. 449, 3 Car. & Kir. 123, it was held, contrary seemingly to the last two cases, that an act of omission as well as of commission may be punishable criminally; and this seems to be the better rule, and the one generally adopted. In Regina v. Conde, 10 Cox C. C. 547, a parent who, having the means to supply necessaries, negligently, though not willfully, withheld from a child food, which if administered would have sustained its life, and in consequence thereof the child died, was guilty of manslaughter. Sce Regina v. Ryland, Id. 569. In Regina v. Bubb, 4 Id. 459, the defendant was indicted for murdering a child by starvation. The charge of William, J., to the jury, as to the criminal responsibility resulting from culpable negligence, is particularly instructive: "If the omission or neglect to perform the duty was malicious, then the indictment would be supported, and the crime of murder would be made out against the prisoner; but if the omission or neglect were simply culpable, but not arising from a malicious motive on the part of the prisoner, then, though it would be your duty to find her guilty, it should be of manslaughter only." The learned judge, after explaining what was meant by the expression "malicious," then proceeded: "But if you are not satisfied that she contemplated the death of the child, then, although guilty of a culpable neglect of duty, it would amount only to the crime of manslaughter. If, on the other hand, you should think either that she did not undertake the duty of supplying the child with proper food

and raiment, or that she did not culpably neglect that duty, then you will acquit her altogether." See State v. Hoit, 23 N. H. 355; Nixon v. People, 2 Scam. 269. An extended examination of this subject will be found in the note to Regina v. Lowe, 1 Ben. & Heard's Lead. Cas. 62,

Subd. 7. Coercion by husband.-At common law, a married woman did not lose by the marriage her general capacity for crime, Yet as the law has cast upon her a certain duty to her husband of obedience, of affection, and of confidence, it has compensated her by the indulgence, that if, through constraint from his will, she carries her obedience to the excess of doing unlawful acts, she shall not suffer for then criminally: 1 Bish. Crim. L., sec. 357. The common law goes much further than our code, and not only excuses the wife acting under coercion of her husband from punishment for misdemeanors committed by her, but from most felonies as well: 4 Bla. Com. 28. But certain crimes, on account of their enormity, were excepted; such as treason, murder, and the like: 1 Bish. Crim. L., sec. 361; but the later decisions do not always recognize this exception. And other crimes, like that of keeping a brothel, are excepted, because peculiar to the female sex: 4 Bla. Com. 29; State v. Bentz, 11 Mo. 27. A married woman cannot be treated as accessary for receiving her husband, knowing that he has committed a felony, for she is presumed to act under his coercion, and she is not bound, neither ought she, to discover him: 4 Bla. Com. 39.

Coercion is presumed from the mere presence of the husband, but this presumption is only prima facie, and is liable to be rebutted by evidence: Davis v. State, 15 Ohio, 72; State v. Nelson, 29 Me. 329; Commonwealth v. Eagan, 103 Mass. 71.

Subd. 8. Threats and menaces.-One of the species of defects of will which renders a person incapable of committing crime, as stated by Blackstone, is that arising from compulsion and necessity. After speaking of the obligation of civil subjection as a species of compulsion or necessity, that writer then proceeds: "Another species of compulsion or necessity is what our law calls duress per minas, or threats and menaces, which induce a fear of death or other bodily harm, and which take away for that reason the guilt of many crimes and misdemeanors; at least, before the human tribunal. But then that fear which compels a man to do an unwarrantable action ought to be just and well grounded. . . . . Therefore, in time of war or rebellion, a man may be justified in doing many treasonable acts by compulsion of the enemy or rebels which would admit of no excuse in the time of peace. This, however, seems only, or at least principally, to hold as to positive crime, so created by the laws of society, and which, therefore, society may excuse; but not as to natural offenses, so declared by the law of God, wherein human magistrates are only the executioners of divine punishment. And therefore, though a man be violently as saulted, and hath no other possible means of escaping death but by killing an innocent person, this fear and force shall not acquit him of murder; for he ought rather to die himself than escape by the murder of an innocent. But in such a case he is permitted to kill the assailant; for there the law of nature and self-defense,