of sufficient capacity. To escape responsi bility, he has the burden of satisfying the jury that he did not have sufficient intelligence to understand the nature and consequences of his act, and to know that he was doing wrong.253

92. Incapacity Other Than Mental.

(a) In General.-There are some offenses which an infant cannot commit because of incapacity other than mental incapacity. Blackstone says: "The law of England in some cases privileges an infant under the age of twenty-one as to common misdemeanors, so as to escape fine, imprisonment, and the like, and particularly in cases of omission, as not repairing a bridge, or a highway, and other similar offenses; for, not having the command of his fortune till twenty-one, he

In Law v. Com., supra, a conviction of a boy of nearly twelve years as principal in the second degree in the crime of attempt to rape was set aside, where the only evidence of his mental capacity and guilty knowledge was that he was a boy of average capacity for his age (which, as the court said, amounted to nothing), and that he put his hand over the girl's mouth, while his elder brother attempted to rape her.

253 State v. Goin, 9 Humph. (Tenn.) 175, and other cases cited in the preceding notes.

w.nts the capacity to do those things which the law requires." 254

In a Michigan case it was held that a minor cannot be prosecuted and convicted for not supporting his wife, if there is no evidence that he was emancipated, or that he owned any property.255

(b) Physical Incapacity.-A boy cannot be guilty of rape, as principal in the first degree, unless he has physical capacity to have intercourse with a woman. At common law a boy under fourteen years of age was conclusively presumed to be incapable of committing this crime, but in this country some of the courts have repudiated this doctrine, and allow capacity in fact to be shown.256

(c) Effect of Privilege as to Contracts.Since an infant is not bound by his contracts, it has been held by most of the courts that he cannot be made liable in an action for deceit when he obtains goods under a contract by false misrepresentations as to his age; and it has been contended that his privilege in this

254 4 Bl. Comm. 22; 1 Hale, P. C. 20-22. 255 People v. Todd, 61 Mich. 234.

256 Post, § 302(a).

respect renders him exempt from responsibil ity to the criminal law in these cases. It has been held, however, that his privileges do not exempt him from responsibility for his crimes, and an infant, if of sufficient mental capacity to be responsible, may be convicted of forgery, or counterfeiting, or cheating at common law, or obtaining goods by false pretenses, though he cannot be held civilly liable.257 But it has been held that an infant cannot be guilty under a statute punishing any person who shall dispose of property upon which he has given a chattel mortgage, since an infant has a right to avoid a mortgage given by him, and a disposal of the property by him amounts to a disaffirmance of the mortgage. 258

VII. RESPONSIBILITY OF INSANE PERSONS.

93. In General.-A man is not criminally responsible for his acts if he is so insane, either from lack or disease of the mind, as to be incapable of entertaining a criminal intent; but the courts do not agree entirely as to the proper test of insanity. The law may be summarized as follows:

257 People v. Kendall, 25 Wend. (N. Y.) 399, 37 Am. Dec. 240.

258 State v. Howard, 88 N. C. 650; State v. Plaisted, 43 N. H. 413; Jones v. State, 31 Tex. Cr. R. 252.

1. All courts now agree that a man is not criminally responsible for an act if, by reason of lack or disease of the mind, he was incapable of distinguishing between right and wrong with respect to the particular act.

2. Some courts, in addition to this, hold that a man is not responsible for an act if, by reason of disease of the mind, he was Irresistibly impelled to do the act, though he may have known that the act was wrong. Other courts refuse to recognize such a ground of exemption.

3. A mere perverted condition of the moral system, called moral insanity, where the mind is not diseased, or mere uncontrol.

lable passion, is no ground of exemption.

Criminal and Civil Liability Distinguished. What has been said in reference to the difference between the criminal and civil liability of children is equally applicable to insane persons. An insane person is generally liable in a civil action for his torts, since the object of an action for a tort is compensation to the party injured, and not the punishment of the wrongdoer. It is otherwise, however, in a criminal prosecution, for a criminal intent must then be shown. It is therefore settled that a man is not criminally responsible for an act, if he was so insane, at

the time he committed the act, that he was incapable of entertaining a criminal intent. As to this there can be no question; but the courts do not agree entirely as to when a man is so insane as to be considered incapable of entertaining such an intent.

94. Tests of Responsibility in General.

Various tests have been laid down from time to time by judges and commentators for determining when a man is to be deemed so insane as to be irresponsible. Tests have been adopted and adhered to long enough to give a few precedents, and then abandoned for new ones; and these in turn have been abandoned for others, as discoveries in medical science have shown them to be erroneous. Unfortunately, however, the courts have not always kept pace with the progress of thought and discovery in medical science, and the result is that there is now a direct conflict in the decisions as to the true test of responsibility.

Abandoned Tests.-Sir Matthew Hale said, in effect, that though a man may be laboring under mental defect or disease, yet, if he has as great understanding as a child of fourteen years, he is responsible for his