held responsible to the law for any act, until they have attained that degree of intelligence and discretion which would enable them to judge correctly of their own rights and interests, and their various obligations to society. Their criminal responsibility attaches much earlier in life than their civil. The age at which an infant shall be held responsible for a violation of the criminal law is fixed in England and America between seven and fourteen years. Our statute provides that "no person shall, in any case, be convicted of any offense committed before he was of the age of nine years, nor of any offense committed between the years of nine and thirteen, unless it shall appear by proof that he had discretion sufficient to understand the nature and illegality of the act constituting the offense."1

It is believed that under this act it is not sufficient to prove simply that the defendant, being but twelve years of age, knew the difference between good and evil, nor is it sufficient to prove that the child had the intelligence of ordinary boys of his age; for the statute evidently requires something else, namely, that he should "understand the nature and illegality of the act;" or, in other words, that he knew the killing of a fellow being was a great crime, prohibited by law under severe penalties; and this must be proven by the State in order to warrant a conviction. Direct and positive testimony could seldom be found to prove such a fact, nor is it deemed at all necessary; but circumstances of education, habits of life, general character, moral and religious instructions, and often circumstances immediately connected with the offense charged, may in most instances be proven, so as to convince an intelligent jury whether or not the defendant had the discretion required by the statute. The testimony on this point, as disclosed in the transcript, is extremely unsatisfactory and indefinite. We think, however, that this court should not disturb the verdict of a jury on the ground that it was not supported by the evidence, unless the record showed that the jury had disregarded legitimate evidence on material matters at issue.

We are, however, of the opinion that the judgment in this case should be reversed, because of errors in the charge of the court to the jury.

The seventh charge of the court reads as follows: "If the shooting took place under such circumstances, showing that the defendant from his youth was incapable of cool reflection, that his mind was agitated, so as to preclude the idea that he was aware of the enormity of his rash act, and the serious consequences thereof, then his crime is manslaughter." This charge withdrew from the jury any consideration

1 Pasch. Dig., Art. 1638.

of the question of infancy and responsibility, excepting so far as it would tend to reduce murder to manslaughter, and therefore it is violative of the statute just quoted.

It is true that the court, at the request of defendant's counsel, gave the statute in charge to the jury, but this being in conflict with the former charge, it is not possible to tell under what charge the verdict was found, unless we conclude that the peculiar language of the seventh charge given by the court precluded any further inquiry.

We are further of the opinion that there was error in that portion of the charge which placed the responsibility of the defendant on the single fact, that his capacity was as good as that of boys generally of his age, without any proof whatever that the defendant, or boys generally of his age, had sufficient discretion to understand the nature and illegality of the act of which he was charged.

For these reasons the judgment in this case is reversed and remanded for a new trial, in conformity with this opinion.

Reversed and remanded.

INFANT OF ELEVEN YEARS-MURDER-CONFESSION OF INFANT. STATE V. AARON.

[1 South. (N. J.) 231; 7 Am. Dec. 592.]

In the Supreme Court of New Jersey, September 1818

1. An Infant Between the Ages of Seven and Fourteen is presumed incapable of committing crime, and the evidence to rebut the presumption must be strong and irresistible, that he had sufficient discernment to distinguish good from evil, and to comprehend the nature and consequences of his acts.

2. On Confessions Alone, an infant under twelve can not be convicted of murder.

Indictment for murder against a black boy, eleven years of age. Verdict of guilty and motion for new trial upon points reversed by SOUTHARD, J.

KIRKPATRICK, C. J.

(Omitting other questions.)

With respect to the liability of infants to punishment and to the giving their confessions in evidence against them much might be said and ought to be said with great caution. I shall restrain myself to a very few observations. It is perfectly settled that an infant within the age of seven years can 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. It is perfectly settled also that between the age of seven and the age of fourteen years, the infant shall be presumed to be incapable of committing crime upon the same principle, the presumption being very strong at seven and decreasing with the progress of his years. But, then, this 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 comprehend the nature and consequences of his acts, he may be convicted and have judgment of death. But, then, in cases of this kind, Sir Matthew Hale tells us, the evidence ought to be strong and pregnant to make it appear he understood what he did and especially if the accused be under the age of twelve years.

With respect to confessions in general, and especially with respect to the confessions of infants, it is necessary to be exceedingly guarded. Sir W. Blackstone tells us that hasty and unguarded confessions made to persons having no authority, such as wicket-hole witnesses, even in cases of felony at the common law, are the weakest and most suspicious of all testimony, ever liable to be obtained by artifice, false hopes, promises of favor, or menaces, seldom remembered accurately or reported with due precision, and incapable in their nature of being disproved by negative evidence. In Leach's edition of Hawkins, we find it said that the human mind under the pressure of calamity is easily seduced and is liable in the alarm of danger, to acknowledge indiscriminately a falsehood or a truth, as different agitations may prevail. A confession, therefore, whether made upon an official examination or in discourse with private persons, which is obtained from a defendant either by the flattery of hope or by the impression of fear, however slightly the emotion may be implanted, is not admissible evidence; for the law will not suffer a prisoner to be made the deluded instrument of his own conviction. But if any facts arise in consequence even of such confession they may be given in evidence, because they must ever be immutably the same, whether the confession which disclosed them be true or false, and justice can not suffer by the admission. The truth of these contingent facts, however, must be proved independently of, and not coupled with or explained by, the conversation or confession from which they are derived.

If this be so with respect to confessions in general how much more strongly does it apply to the confessions of infants, especially under the age of twelve years. Sir M. Hale speaking of the trial of infants of such tender years, says the evidence ought to be strong and pregnant; that is as I understand it, disclosing or bringing forth facts or circumstances, which, independently of the confession itself, are suffi

cient to establish the guilt; for he afterward expressly says that the infant is not to be convicted upon his own confessions, but the jury must inquire of the circumstances disclosed by it and upon them alone a conviction can be had. The law, then, I think, seems to be pretty well settled that upon the naked confession of such an infant he can not be convicted of a capital offense.

In the case before us, from the statement of Mr. Justice Southard, it appears that this boy, when first interrogated by the inquest, denied the fact; that he was then taken apart by one or more of the jurors and told that he had better confess the whole truth, and that he did then confess that he had thrown the child into the well in which the body had been found and from which he had seen it taken; that upon this confession he was committed to prison, and while in prison declared the same thing in the hearing of the gaoler and of sundry other persons for some time, but that afterwards, till the time of the trial, he uniformly denied it. It was difficult to say how far this boy's mind might have been impressed with hope or fear by the language of the jurors who first interrogated him; it is certain, however, that the confession was not altogether spontaneous, for at first he stoutly denied the fact, but having once confessed it is not strange but rather according to the ordinary course of things, that he should, while in prison and under the same impressions, repeat the same story. If the confession, however, rested upon the ground of hope and fear alone, doubtful as it might be, I should have been inclined to yield to its competency and to leave it to the discretion and judgment of the jury. But, then, as I understand this confession, it is a simple, naked confession, disclosing no fact, pregnant with no circumstances to give it authority or in any way to corroborate it. It did not even lead to the discovery of the body of the deceased, for it was found before; it opens up no proof of malice, or hatred, or ill-will against the child, but rather the contrary; it is the mere naked confession of an infant under the age of eleven years, obtained by some degree of pressure, at least, after a firm denial, and as such I speak with great deference to the learning of the court which tried the cause, I should incline to think it ought not to have been admitted as evidence, and if admitted, that it ought not to have been the ground of conviction.

The prisoner ought not to have the judgment of death upon his conviction, but a new trial.

ROSSELL, J., concurred.

At the subsequent Oyer and Terminer no argument upon the rule was had, but the following opinion was delivered.

SOUTHARD, J.

(Omitting other points.)

4. Were the confessions of the prisoner legally admitted? This is an important question not merely to the prisoner alone but to the correct administration of the law. The court felt and endeavored properly to estimate it as such and are not now dissatisfied with the opinion expressed. It yields a ready assent to the doctrines of the law contained in the learned opinions by the justices of the Supreme Court, although there is, in some slight degree, a difference in the view which they take of the facts. It is important here to remark that we do not understand that there was at the trial proof of promises or threats to induce the confession; but a decided denial of both. Although the prisoner was closely pressed as a witness and there was an anxious desire to discover all the facts, and to learn whether he had not been guilty of committing the act, which he declared that he had seen; yet it was the anxiety only of a moral and religious community, seeking to discover the perpetrator, that it might be purged from the guilt of shedding blood; and he was repeatedly warned not to vary from the truth, and that it would be his safety. This, then, as a legal question merely is freed from difficulty arising from that source. Were the prisoner an adult, his confessions under the circumstances would be competent. Will the fact that he was under the age of twelve years render them incompetent?

The distinctions which have been taken in the books as to the age when crime may be committed and the criminal punished, are in no inconsiderable degree arbitrary. The great subject of inquiry in all cases ought to be the legal capacity of the prisoner; and this is found in some much earlier than in others. The real value of the distinctions is to fix the party upon whom the proof of this capacity lies. There is indeed an age so tender that the nature and consequences of acts can not be comprehended, and every uncorrupted feeling of the heart as well as every moral and legal principle forbids punishment. But after we pass this age and progress towards maturity there have been periods settled which ascertain the presumption of law as to the existence of this capacity. If under fourteen, especially under twelve years, the law presumes that it does not exist and if the State seek to punish, it must conclusively establish it. If above the age of fourteen, the law presumes its existence, and if the accused would seek to avoid punishment, he must overcome that presumption by sufficient evidence. But wherever the capacity is established, either by this presumption of law or by the testimony of witnesses, punishment always follows the infraction of the law. If the intelligence to apprehend the consequences of acts, to reason upon duty, to distinguish between right and wrong, if