"The question of fact to be determined is whether she really and in truth acted under such coercion, or whether she acted of her own free will and independently of any coercion or control by him."245

When an offense is committed by a woman in the absence of her husband, coercion is not presumed, for no presumption arises from the mere fact of coverture; but coercion may be shown as a fact.246 To give rise to the presumption of coercion, however, the presence of the husband need not have been at the very spot where the offense was committed, or even in

it was held that since, under a statute, a wife could not be compelled to be a witness on an indictment against her husband, there was no presumption of coercion where a wife testified in favor of her husband on a criminal prosecution, and committed perjury. See Rex v. Dix, 1 Russ. Crimes, 147.

A married woman may be indicted alone, or jointly with her husband, for keeping a bawdy house, gaming house, or liquor nuisance. Reg. v. Williams, 10 Mod. 63; Rex v. Dixon, 10 Mod. 335; Com. v. Tryon, 99 Mass. 442; State v. Collins, 1 McCord (S. C.) 355; State v. Bentz, 11 Mo. 27.

245 Com. v. Daley, 148 Mass. 11, 18 N. E. 579, Beale's Cas. 275; Com. v. Adams, 186 Mass. 101, 71 N. E. 78.

The fact that the wife is more active than the husband in committing the offense is evidence to be considered in determining whether she acted under his coercion, but it does not, as a matter of law, make her guilty, since the cause of her activity may have been her husband's influence, and, if it was so, she is not guilty. State v. Houston, 29 S. C. 108, 6 S. E. 943, Mikell's Cas. 111, n.

Where a wife choked a man, and told him to keep still, while her husband picked his pockets, it was held that the jury was justified in finding that she was not acting under coercion. People v. Wright, 38 Mich. 744, 31 Am. Rep. 331.

246 2 East, P. C. 559; Rex v. Morris, Russ. & R. 270; Reg. v. Cohen, 11 Cox, C. C. 99; Reg. v. John, 13 Cox, C. C. 100; Rex v. Hughes, 2 Lewin, C. C. 229, Mikell's Cas. 110; Brown v. Attorney General (1898) App. Cas. 234, 18 Cox, C. C. 658; State v. Nelson, 29 Me. 329; Com. v. Murphy, 2 Gray (Mass.) 510; Com. v. Munsey, 112 Mass. 287; Quinlan v. People, 6 Park. Cr. R. (N. Y.) 9; Seiler v. People, 77 N. Y. 413, Mikell's Cas. 112; State v. Shee, 13 R. I. 535; State v. Potter, 42 Vt.

the same room, but it is sufficient if he was near enough for the wife to be under his immediate control or influence.247

VI. RESPONSIBILITY OF INFANTS.

88. In General.—A child is not criminally responsible for his acts or omissions if he is of such tender years as to be incapable of distinguishing between right and wrong, and of understanding the nature of the particular act. At common law

1. Under the age of seven years the presumption of incapacity is conclusive.

2. Between the ages of seven and fourteen there is a presumption of incapacity, but it may be rebutted.

3. After the age of fourteen there is a presumption of capacity, which must be rebutted by the accused.

Criminal and Civil Liability Distinguished.—With a few exceptions, a child is liable for his torts in a civil action to the same extent as an adult, for the object of the action is to compensate the party injured, and not to punish the child, and his

247 Com. v. Burk, 11 Gray (Mass.) 437; Com. v. Munsey, 112 Mass. 287; Com. v. Flaherty, 140 Mass. 454, 5 N. E. 258. But see State v. Shee, 13 R. I. 535; Rex v. Hughes, 2 Lewin, C. C. 229, Mikell's Cas. 110.

In Conolly's Case, 2 Lewin, C. C. 229, Mikell's Cas. 110, a wife went from house to house uttering base coin, her husband accompanying her, but remaining outside. It was held that she was not guilty.

It was said in a Massachusetts case: "No exact rule applicable to all cases can be laid down as to what degree of proximity will constitute such presence, because this may vary with the varying circumstances of particular cases. And where the wife did not act in the direct presence of her husband, or under his eye, it must usually be left to the jury to determine incidentally whether his presence was sufficiently immediate or direct to raise the presumption. But the ultimate question, after all, is whether she acted under his coercion or control, or of her own free will, independently of coercion or control by him; and this is to be determined in view of the presumption arising from his presence, and of the testimony or circumstances tending to rebut it, if any such exist." Com. v. Daley, 148 Mass. 11, 18 N. E. 579, Beale's Cas. 275.

mental capacity, therefore, is generally immaterial. It is very different, however, when it is proposed to hold a child amenable to the criminal law, for then a criminal intent is necessary. A child is not criminally responsible unless he is old enough, and intelligent enough, to be capable of entertaining a criminal intent; and to be capable of entertaining a criminal intent he must be capable of distinguishing between right and wrong as to the particular act.

89. Children Under the Age of Seven Years.

Children under the age of seven years are, by an arbitrary rule of the common law, conclusively presumed to be doli incapax, or incapable of entertaining a criminal intent, and no evidence at all can be received to show capacity in fact.248

90. Children Between the Ages of Seven and Fourteen.

Children between the ages of seven and fourteen are presumed to be incapable of entertaining a criminal intent, but the presumption is not conclusive, as in the case of children under the age of seven. It may be rebutted by showing in the particular case that the accused was of sufficient intelligence to distinguish between right and wrong, and to understand the nature and illegality of the particular act, or, as it is sometimes said, that he was possessed of "a mischievous discretion."249

248 This rule applies to both common law and statutory offenses. Reg. v. Smith, 1 Cox, C. C. 260, Beale's Cas. 276; Marsh v. Loader, 14 C. B. (N. S.) 535; State v. Goin, 9 Humph. (Tenn.) 175; People v. Townsend, 3 Hill (N. Y.) 479; Com. v. Mead, 92 Mass. 398.

In Illinois, and perhaps in some other jurisdictions, the age under which a child is absolutely irresponsible has been raised by statute to ten years. Angelo v. People, 96 Ill. 209, 36 Am. Rep. 132.

In Texas it is nine years. Pen. Code, art. 34. Mikell's Cas. 254, n. 249 1 Hale, P. C. 26, 27; 4 Bl. Comm. 23. "Proof that he knew the difference between good and evil, or that he was possessed of the intelligence of ordinary boys of his age, does not fill the requirements of the law. It must be shown that he had sufficient discretion to understand the nature and illegality of the particular act constituting the

The burden of showing this is upon the state, and if no evidence at all is introduced on this point, or if the evidence does not show a knowledge of right and wrong, there must be an acquittal.250 If such capacity is shown, a child over seven years of age is just is just as fully responsible as an adult, the maxim being "malitia supplet aetatem.”251

crime." Carr v. State, 24 Tex. App. 562, 7 S. W. 328, 5 Am. St. Rep. 905.

250 This rule applies in all cases, whether the offense be a felony, or a mere misdemeanor, and whether it be a common-law or statutory offense. Reg. v. Smith, 1 Cox, C. C. 260, Beale's Cas. 276; Rex v. Owen, 4 Car. & P. 236; Reg. v. Vamplew, 3 Fost. & F. 520; Godfrey v. State, 31 Ala. 323, 70 Am. Dec. 494, Mikell's Cas. 252; Martin v. State, 90 Ala. 602, 8 So. 858, 24 Am. St. Rep. 844; Angelo v. People, 96 Ill. 209, 36 Am. Rep. 132; Heilman v. Com., 84 Ky. 457, 1 S. W. 731, 4 Am. St. Rep. 207; Com. v. Mead, 10 Allen (Mass.) 398; State v. Adams, 76 Mo. 355; State v. Tice, 90 Mo. 112, 2 S. W. 269; State v. Aaron, 4 N. J. Law, 231, 7 Am. Dec. 592; State v. Goin, 9 Humph. (Tenn.) 175; Carr v. State, 24 Tex. App. 562, 7 S. W. 328, 5 Am. St. Rep. 905; State v. Leanard, 41 Vt. 585; Law v. Com., 75 Va. 885, 40 Am. Rep. 750. In Illinois, by statute, the age at which this rebuttable presumption of incapacity arises is between ten and fourteen. Angelo v. People, supra.

In Texas it is between nine and thirteen. Pen. Code, art. 34, Mikell's Cas. 254, n.

In Minnesota the rebuttable presumption ceases at twelve. Pen. Code, § 17.

The burden of proof of nonage, however, is on the prisoner. State v. Arnold, 35 N. C. (13 Ired.) 184, Mikell's Cas. 255.

251 "If the intelligence to apprehend the consequences of acts, to reason upon duty, to distinguish between right and wrong, if the consciousness of guilt and innocence be clearly manifested, then capacity is shown." Per Southard, J., in State v. Aaron, 4 N. J. Law, 231, 7 Am. Dec. 592, 601.

Whether a child had such capacity must generally be determined from his conduct, and the circumstances surrounding the commission of the act. See Carr v. State, 24 Tex. App. 562, 7 S. W. 328, 5 Am. St. Rep. 905.

In York's Case, Fost. C. L. 70, a boy of ten years, who, after killing a little playmate, hid the body, was convicted of murder, and executed, and it was considered that the circumstances showed a consciousness

Capacity must be shown beyond any reasonable doubt.252 The presumption of incapacity decreases with the increase of

years. 252a

91. Children Over Fourteen Years of Age.

Children over fourteen years of age are in substantially the same position with regard to criminal responsibility as an adult. A child who has reached this age is presumed to be doli сарах, and therefore responsible, unless he shows, as he may, that he was not of sufficient capacity. To escape responsibility, 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

of guilt, and knowledge of right and wrong. In another English case, a child of eight was convicted of arson. Emlyn on 1 Hale, P. C. 25, note. See, also, Year Book 12 Edw. III., 626, Mikell's Cas. 252.

In this country, also, there are cases in which children of such tender years have been convicted, and even hanged. See State v. Guild, 10 N. J. Law, 163, 18 Am. Dec. 404, where a boy of twelve was hung for murder, Godfrey v. State, 31 Ala. 323, 70 Am. Dec. 494, where a child of eleven was convicted of murder, and the conviction was sustained, and State v. Nickleson, 45 La. Ann. 1172, 14 So. 134, where a boy between ten and twelve was convicted of arson.

Other cases in which convictions of children of tender years have occurred are State v. Milholland, 89 Iowa, 5, 56 N. W. 403; Martin v. State, 90 Ala. 602, 8 So. 858.

252 The "evidence of that malice which is to supply age ought to be strong and clear, beyond all doubt and contradiction." 4 Bl. Comm. 24. And see Angelo v. People, 96 Ill. 209, 36 Am. Rep. 132; Law v. Com., 75 Va. 885, 40 Am. Rep. 750; Godfrey v. State, 31 Ala. 323, 70 Am. Dec. 494; State v. Tice, 90 Mo. 112, 2 S. W. 269.

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.

252a Martin v. State, 90 Ala. 602, 8 So. 858; McCormack v. State, 102 Ala. 156, 15 So. 438.

253 State v. Goin, 9 Humph. (Tenn.) 175; Irby v. State, 32 Ga. 496, and other cases cited in the preceding notes. For him to state that