The charge was the having possession of coining implements, but the possession of the wife was the possession of the husband. If he possessed them, she must possess them, too, while she lived with him, but not in the sense which would make her amenable to his indictment. It was not like a charge which involved the proof of some act on the part of the wife. The breaking of the mould could not affect the position. If it was done to screen her husband, she would not be liable, although such an act done by another person might make him an accessory after the fact.

TALFOURD, J. (to the jury.) This is entirely a question for you. The man and woman are living together, and that is evidence from which you are at liberty to infer that they are man and wife. If you think so, and also believe that the man was in possession of these moulds, then you ought to acquit the woman, as she can not in law be said to have any possession separate from her husband, but if you think that the criminality was on her part alone, and that he was entirely guiltless of any participation in her conduct, then she must be, of course, convicted. With regard to the man, it appears that he occupies the room in which these things were found, and, prima facie, he would be presumed to be in possession of what the room contains; but this presumption may be rebutted, and you will take all the circumstances into consideration and see whether or not any of them satisfy you that the trade was carried on there with his sanction. circumstance of the woman trying to break the mould when the officer went to the house, will not affect the case if you think that her object was to screen him from detection. Either of the prisoners may be convicted upon this evidence, but I do not think you can convict both. The jury acquitted the woman and convicted the man.

The

INFANT-ILLEGAL ACT IN PRESENCE OF AND BY COMMAND OF PARENT.

COMMONWEALTH V. MEAD.

[10 Allen, 398.]

In the Supreme Judicial Court of Massachusetts, September Term,

1865.

Where a child

Child Under Fourteen-Sale of Liquor by Command of Parent. under the age of fourteen years is indicted for illegally selling liquor and it appears that the sales were made by the child in the presence of its mother and in obedience to her

directions, the prosecution before a conviction can be had must establish as a distinct fact the child's legal capacity to commit a crime.

INDICTMENT against Mary Mead for being a common seller of intoxicating liquors.

At the trial in the Superior Court, before BRIGHAM, J., the Commonwealth proved several sales made by the defendant within the time named in the indictment, and offered no other evidence.

It was proved on the part of the defendant that she was a daughter of Eliza Mead, and at the time of said sales was under twelve years of age, living with her parents, and that the sales were made by her in the dwelling-house of her parents, and under and by direction of her mother, to whom the liquors belonged. The defendant also put in evidence a license granted to her mother to sell liquors, under the Internal Revenue Acts of the United States.

The defendant requested the court to instruct the jury that if she, at the time of making the sales, was under twelve years of age, and if the sales were made under the general directions of the mother, in the dwelling-house of the parents of the defendant, then she could not be convicted under this indictment. The judge declined so to rule, and instructed the jury that the license was no defense, if the sales were made in violation of the statutes of Massachusetts; and that if the defendant did, in the dwelling-house of her parents, and while she lived with them, and by direction of her mother, and while under twelve years of age, make three or more separate sales of her mother's intoxicating liquors within the time alleged in the indictment, they should find her guilty.

The jury returned a verdict of guilty and the defendant alleged exceptions

A. J. Waterman, for the defendant.

J. C. Davis, for the Commonwealth.

BIGELOW, C. J. The question of the legal competency of the defendant to commit the offense charged in the indictment was distintly raised in the present case by the fact proved at the trial, that she was under twelve years of age. The rule of the common law is perfectly well settled, that a child between the ages of seven and fourteen is not presumed to be doli capax, and the question whether in committing an offense, such child, in fact, acted with intelligence and capacity, and an understanding of the unlawful character of the act charged, is to be determined by the jury upon the evidence, and in view of all the circumstances attending the alleged criminal transaction.1 This rule is

11 Hale P. C. 22-27. 1 Arch. Crim. Pr. 10; 1 Russ. on Crimes, (7th Am. ed.), 4; Rex v. Owen, 4 C. & P. 236.

uniformly applied where children under fourteen and above seven years of age are charged with murder or other felonies. A fortiori, it is applicable where they are accused of lesser offenses, or with the commission of acts coming within the class of mala prohibita.

These do not so violently shock the natural moral sense or instinct of children, and would not be so readily recognized and understood by them to be wrong, or a violation of duty, as the higher crimes of murder, arson, larceny, and the like.

Although the attention of the judge at the trial was drawn to the fact that the defendant was of tender years, so that no presumption of legal capacity to commit crime existed, he wholly omitted to give any instructions from which the jury could be led to infer that it was their duty to find that the defendant knew the unlawful character of the act with which she was charged, before they could render a verdict of guilty against her. For aught that we can see, the verdict was rendered without any consideration of the legal competency of the defendant to commit the offense alleged in the indictment. The case was one which seems to us to have required an explicit instruction on this point. It is true that it was not necessary to show actual knowledge by the defendant of the unlawfulness of the act, if sufficient legal capacity to commit crime was otherwise proved. If capacity is established, knowledge may be presumed. Nor is it necessary to offer direct evidence of capacity. It may be inferred from the circumstances under which the offense was committed. But nevertheless it is to be established as a distinct fact. We are unable to see anything in the facts set out in the exception which tend to prove that the defendant was cognizant of the illegal character of the act which she committed. She seems to have made the illegal sale in the presence of and in obedience to the express command of her mother. This fact of itself had some tendency to show that the child did not understand that the act which she was told by her parent to commit was wrong, and, in connection with the request for instructions which was made by defendant's counsel, required the judge to give full and explicit instructions on the subject of legal competency to commit crime. The omission of such instructions was an error, which in our judgment, renders it necessary that there should be a new trial of the case.

1 At the same term a like decision was made in the case of John Mead, a son of

Exceptions sustained.1

Eliza Mead, and under fourteen years of age at the time of the sale.

INFANT-CAN NOT COMMIT RAPE OR ASSAULT WITH INTENT.

STATE V. SAM.

[Winst. 300.]

In the Supreme Court of North Carolina, June Term, 1864.

An Infant under the Age of Fourteen Years can not commit a rape or an assault with intent to commit a rape.

This was an indictment against a slave, tried before OSBOURNE, Judge, at the spring term of Davie Superior Court, 1864.

The indictment contains three counts. The first, for carnally knowing and abusing a female child under the age of ten years. The second, for assault on a white woman with intent to commit a rape. The third, for an assault on a white female under the age of ten years with intent to carnally know and abuse her.

The jury found the prisoner not guilty on the first count; and they found specially "that the prisoner made an assault on the body of Camilla Ann Brock with an intent forcibly and against her will, carnally to know her, the said Camilla. That the said Camilla Ann was of

the age of four years at the time of said assault, and that the prisoner was under fourteen years of age; the jury further find that there was an emission of seed from the person of the prisoner, which was found on the undergarment of the said Camilla. Whether the defendant be guilty," etc.

The court gave judgment for the prisoner, and the State appealed. Winston, Sr., for the State.

Boyden, for the prisoner.

MANLY, J. The question brought up in this case for review is whether a person of color under fourteen years of age can be convicted of an assault with intent to commit a rape.

By the provisions of the Revised Code,1 the offense charged in the bill of indictment is declared to be a capital felony, and is, therefore, entitled to be considered under the safeguards which the law has thought proper to throw around human life. By the common law, persons between the ages of seven and fourteen may be convicted of most offenses, if, added to the proof of the corpus delicto, there be proof also of the mischievous mind. There is a legal presumption that such persons are doli incapaces; but it is a rebuttable presumption. It is not so in respect to the crime of rape. The presumption against its com

mission by persons below the age of puberty (14) is irrebuttable. This is not so much on the ground of incapacity of mind or will, but of physical impotency. It will follow, as a plain legal deduction from this, that the person under fourteen can not commit an assault with intent to commit a rape. It is a logical solecism to say, that a person can intend to do what he is physically impotent to do. These principles are supported by the following authorities: Archbold's Criminal Practice; 1 3 Chitty's Criminal Law; 2 Rex v. Eldershaw,3 and Regina v. Phillips.4 The courts of two of the States north of us have held convictions for "assault with intent" right, where the persons were under fourteen. But it is noticeable that the offense in these States is

a misdemeanor. In the one case there was a divided court, and in the other the common-law principles, as here laid down, were recognized; but the court undertook to alter them to suit the altered temperament of the population. These do not at all affect the stability of the law as now expounded. With the exceptions noticed, it has been uniform, we think, in all the settlements of the Continent which have adopted the common law of England. By a proper consideration of principles, it will be seen why the fact found by the jury, that there was an emission of seed from the person of the prisoner, does not materially affect the case. The presumption which arises from want of age, applies equally to the offense of rape and the offense of assault with intent to commit it. Both presumptions are alike irrebuttable.

The case of the State v. Pugh,5 recognizes the distinction here made. So far from impugning it is decided strictly in accordance with them. A large portion of our population is of races from more Southern latitudes than that from which our common law comes. We have, indeed, an element of great importance from the torrid zone of Africa. It is unquestionable that climate, food, clothing, and the like, have a great influence in hastening physical development. Whether it may not be advisable to move down to an earlier age than fourteen, the period of puberty, for a portion, if not for all the elements in our population, may be a proper inquiry for the statesman. The courts decide the law as it stands. The legislative body will inquire whether the exigencies of the age require change. The judgment of the Superior Court is correct; and the decision must be certified to the Superior Court of law of Davie County that it may proceed to give judgment according to law.

1 p. 3.

2 p. 811.

3 14 Eng. Com. Law, 336.

+34 Eng. Com. Law. 763

57 Jones, 61.