the same facts.' Thus, a conviction for simple larceny of a hat is a bar to an indictment for larceny of the same from a shop,' even though the court did not have jurisdiction in a case of larceny from a shop or dwelling-house.' So, also, a conviction for petit larceny before a justice of the peace is a bar to a subsequent indictment for larceny from the person, based on the same act.*

(j) Effect of obtaining a new trial.-Where the defendant. was convicted of grand larceny, and a new trial was refused him, but granted on his appeal, and the judgment of conviction reversed, his plea of "once in jeopardy" on the former conviction, was overruled. In State v. Clark,' the defendant was indicted for the larceny of several articles, tried and convicted as to a part of the articles, and a new trial granted him; a new indictment was afterward found against him for the same larceny, but embracing some additional articles, and the original indictment was quashed. It was held (1) that the indictment being good, the defendant could not be put in jeopardy again on that or a subsequent indictment, as to the articles which he was acquitted of stealing, or other articles embraced in the larceny, but not included in the first indictment; (2) that as to the articles he was found guilty of stealing, under the first indictment, he was in the same attitude as if there had been no trial, and could be tried again upon the second indictment.

§ 228. Guilt of another.-Evidence that another committed the offense for which the defendant is being tried is inadmissible. The defendant must show that he is innocent, not that another is guilty. Thus, one accused of crime is not allowed to prove declarations out of court of another person, to the effect that the latter committed the offense charged.

1 State v. Murray, 55 Iowa 530; Southworth v. State, 42 Ark. 270.

2 State v. Wiles, 26 Minn. 381.

Powell v. State, 89 Ala. 172.

* State v. Gleason, 56 Iowa 203. See Rap. Crim Proc. § 139.

• People v. Hardisson, 61 Cal. 378.

732 Ark. 231.

8 State v. Beverly, 88 N. C. 632; People v. Johnson, 47 Cal. 122.

He

may prove what acts were committed by such person; but not his admissions.' So evidence that a third person, who was suspected of the crime, fled from the county soon after it was committed, is inadmissible. And proof of the "bad character" of the employes and others about the warehouse from which the property was stolen, who are in no wise connected with the case, either as defendants or witnesses, and not charged with the theft, is foreign to the issue and inadmissible.' In Texas, however, on trial of A. for the theft of a certain number of head of cattle, evidence that certain parties were seen driving a larger herd, including the cattle for the theft of which A. was on trial, was held of the res gesta and admissible.*

5

§ 229. Ignorance of law.—The general rule is that ignorance of the law will not excuse the offender, and consequently, evidence of such ignorance is inadmissible. Thus, larceny is not justified by a prevalent opinion in the community that a contending party in the Civil War had the right to reimburse itself for losses occasioned by the other; or by a general belief among colored people in the vicinity that lost property with no marks to indicate the ownership belongs to the finder.' So the supposition of a thief that the article stolen belonged to one indebted to him is no defense, not even if the supposition were true. Where the act done is malum. in se, or where the law which has been infringed is settled and plain, the maxim ignorantia legis neminem excusat is applied in its rigor. But when a special mental condition constitutes a part of the offense charged, and such condition depends on the question whether or not the defendant had certain knowledge with respect to matters of law, the existence of such knowledge is open to inquiry."

1 State v. Haynes, 71 N. C. 79; Daniel v. State, 65 Ga. 199.

2 Kemp v. State, 89 Ala. 52.

Bennett v. State, 52 Ala. 370.

* Smith v. State, 21 Tex. App. 96, 107, 133.

'Grumbine v. State, 60 Md. 355.

• Lancaster v. State, 3 Coldw. 339; 91 Am. Dec. 288.

* State v. Welch, 73 Mo. 284; 39 Am. Rep. 515.

Gettinger v. State, 13 Neb. 308.

9 Cutter v. State, 36 N. J. L. 125.

§ 230. Ignorance of fact.—In some cases, mistake of fact will be a good defense; thus, on trial for stealing a steer, it is competent for defendant to prove, in order to show the absence of guilty intent, that immediately after the fact was ascertained that the steer was the property of K., he went to him and said, if it was K.'s he had made a mistake, and that he paid K. the amount for which the steer had been sold; it being for the jury to determine from all the facts in the case, whether the mistake was real or feigned. And on trial for larceny of colts, evidence tending to show that the accused was informed that the sale of the colts to the prosecuting witness was a sham, and that they had been sold to a party with whom he had been jointly indicted, is admissible.' In Texas, the provisions of arts. 45 and 46 of the Revised Penal Code define the character of mistake available as an excuse for acts otherwise criminal, but have no application to acts which are criminal only when done with a felonious or fraudulent intent.'

§ 231. Infancy.-Blackstone laid it down as an inflexible rule that "infants, under the age of discretion, ought not to be punished by any criminal prosecution whatever," citing 1 Hawk. P. C. 2. Referring to the civil law, he says that minors are divided into three classes: "Infantia, from the birth till seven years of age; pueritia, from seven to fourteen; and pubertas, from fourteen upwards" to twenty-five. Again, he says that "the period of pueritia, or childhood, was again divided into two equal parts; from seven to ten and an half was atas infantiæ proxima; from ten and an half to fourteen, was atas pubertati proxima. During the first stage of infancy, and the next half of childhood, infantia proxima, they were not punishable for any crime. [Citing Inst. T. 20, 10.] During the other half of childhood, approaching to puberty, from ten and an half to fourteen, they were indeed punishable, if found to be doli capaces, or capable of mischief; but with many mitigations, and not with the utmost rigor of the law. During the last stage (at the age of puberty, and afterwards),

'Hall v. State, 34 Ga. 208.

State v. Waltz, 52 Iowa 227.

3 Neely v. State, 8 Tex. App. 64.

minors were liable to be punished, as well capitally as otherwise." Mr. Bishop has stated the rule in a few words: “Therefore, at the common law, a child under seven years of age is conclusively incapable of committing any crime of any sort. Between seven and fourteen, the law also deems the child incapable, but only prima facie so; and evidence may be received to show a criminal capacity. The question is, whether there was guilty knowledge of wrong-doing. Over fourteen,

infants, like all other persons, are prima facie capable; and he who would set up their incapacity must prove it."1 Between seven and fourteen years of age, a child is presumed not to be criminally responsible. This presumption may be rebutted and a conviction authorized by proof that the accused knew that it was wrong, and knew the legal responsibility for it; knowledge that it was morally wrong, alone, is not enough. In the absence of such proof the accused must be acquitted.' In Massachusetts, where the defendant, a boy of thirteen, was charged with theft, and it appeared that at the time of the alleged larceny he was intoxicated, the circumstances were held to require an acquittal. In California, on a trial for larceny, the defense cannot be permitted to prove that the defendant is a minor for the purpose of showing that in committing the offense he was acting under the control of his mother.'

§ 232. Insanity.-(a) In general.-In order to make insanity a good defense to crime, it must appear, from the evidence, that at the time of committing the act the prisoner was not of sound mind, but affected with insanity, and such affection was the efficient cause of the act, and that he would not have done it but for such affection. To constitute capacity to commit crime, the accused must possess intelligence enough to have a

1 1 Bish. Cr. L. § 461 (4th ed.); see Brown's Leg. Max. 232; 1 Russ. Cr. (Grea. ed.) 1; 1 Whart. Cr. L. § 58.

2 Willet v. Com., 13 Bush 230.

3 R. v. Smith, 1 Cox C. C. 260; R. v. Owen, 4 Car. & P. 236; Walker's case, 5 City Hall Rec. 137.

4 Com. v. French, Thach. 163.

'People v. Richmond, 29 Cal. 414.

Hopps v. People, 31 Ill. 385; 83 Am. Dec. 231.

criminal intent; and if his mental powers are so deficient that he has no will, conscience or controlling mental power, or if, through the overwhelming violence of mental disease, his intellectual power is for the time obliterated, he is not a responsible moral agent, and is not criminally liable for his acts.' An instruction: "If he had power of mind enough to be conscious of what he was doing at the time, then he was responsible to the law for that act," is not erroneous.'

(b) The right and wrong test.—If a person has capacity and reason sufficient to enable him to distinguish between right and wrong, as to the particular act in question; if he has knowledge and consciousness that the act he is doing is wrong, and would deserve punishment, he is, in the eye of the law, of sound mind and memory, and the subject of punishment. The insanity which the law recognizes as an excuse for crime must be such as dethrones reason and incapacitates an individual from distinguishing between right and wrong as to the consequences of his own conduct,' and deprives him of power of control to govern his actions. It is not erroneous to charge the jury that "a man is not insane who knows right from wrong; who knows the act he is committing is a violation of law, and wrong in itself." Occasional oddity or hypochondria does not amount to insanity excusing the commision of a criminal offense. Nothing short of the inability to distinguish right from wrong can do so." An irresistible impulse to commit a criminal act does not absolve the actor, if at the time and in

1 Com. v. Rogers, 7 Metc. 500; 41 Am. Dec. 458.

2 Brown v. Com. 78 Pa. St. 122, 128.

3 Brinkley v. State, 58 Ga. 296; People v. Horn. 62 Cal. 120; State v. Mewherter, 46 Iowa 88; State v. Kotovsky, 74 Mo. 247; Flanagan v. People, 52 N. Y. 467; 11 Am. Rep. 731; Cunningham v. State, 56 Miss. 269; 31 Am. Rep. 360; People v. Coleman, 1 N. Y. Cr. 1; Walker v. People, Id. 7; affirmed Id. 22; Hart v. State, 14 Neb. 572; Freeman v. People, 4 Den. 9; 47 Am. Dec. 216; People v. O'Connell, 62 How. Pr. 436; Warren v. State, 9 Tex. App. 619; State v. Bundy, 24 S. C. 439.

* Smith v. Com. 1 Duv. 224; Kriel v. Com. 5 Bush 362; People v. McDonnell, 47 Cal. 134; Spann v. State, 47 Ga. 553; Wright v. People, 4 Neb. 407.

Willis v. People, 5 Parker 621.

Hawe v. State, 11 Neb. 537; 38 Am. Rep. 375.