
    BROADNAX v. THE STATE.
    Submitted October 6,
    Decided October 19, 1896.
    Indictment for murder. Before Judge Reese. Hancock superior court. February term, 1896.
    Frank Roberts, a child of four -and a half years, was killed by swallowing a strong solution of potash. The evidence is to- the effect that Sam Broadnax, the accused, administered the potash to -the child. His brother Ned Broadnax was present. After conviction a motion for new trial was -overruled. The grounds -of the motion were, that tire verdict was contrary to law and evidence, and because of newly discovered evidence. In support of the latter ground were produced three- affidavits (1) Ned Broadnax: I was eight years old November, 1895. I went with Sam t'o wash the clothes. I -had the p-otash. Sam had father’s-dinner and a bundle of clothes. Sam dropped -a waist and sent me back to find it. I set the potash on the wagon tongue and went back. Sam did no-t give it to Frank, he go-t it himself off the wagon tongue. (2) Defendant: I did mot 'give the potash to- Frank. I did n-ot have- it. I had the 'clothes under one- am .and father’s dinner in the* other hand. I dropped a waist and sent Bud back for it. I did n'olt see what he did with the potash. He told me he-put it in the wag/on and Frank got it. I would not have allowed Frank hurt if I could help it. I was eleven years-old at my last 'birthday, May, 1895. Hed got scared and put it ion me and I knew of no one who could show I did not do it. (3) Defendant’s counsel: They did not know the facts stated in the affidavit of Hed Broadnax, at t'he time of the trial, so far as the same relates to the placing of' the potash on the wagon tongue by Hed ’and the taking o£ the same by Frank without the knowledge or consent of defendant. Defendant was so young -and inexperienced and. was so positive he did-not know how Frank go t the poison that deponents could not -and did not get any information from him on the subject. Infortaation on the subject of the placing It-he potash on the wiagon tongue has come to them since the trial.
   Simmons, C. J.

There was no evidence at the trial showing the-age of the accused, or that on account of his tender years he was mentally incapable of committing a crime, and therefore he was presumptively capax do-li; the evidence for the State was -sufficient to warrant the conviction; and the ground of the-motion for a new trial relating to newly discovered -evidence- is. without legal merit. Judgment affb'med.

Lewis & Moore, for plaintiff in error.

J. M. Terrell, attorney-general, F. If. Colley, solicitor-general, IF. M. ■Howard, and T. L. Reese, contra.  