
    SCOTT v. STATE.
    (Court of Criminal Appeals of Texas.
    June 18, 1913.
    On Motion for Rehearing, June 27, 1913.)
    On Motion for Rehearing.
    1. CRIMINAL Law (§ 1110) — Appeal—Amendment op Record — Statement op Facts.
    Where, owing to confusion incident to the separation of the offices of district and county clerk, the bills of exception and statement of facts taken by accused were left in the office of the county clerk and so were not copied in the transcript, a subsequent transcript containing them, certified by the district clerk, will be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2568; Dec. Dig. § 1110.]
    2. Inpants (§ 66) — Criminal Liability — Discretion.
    Under Pen. Code 1911, art. 34, providing that no person shall be convicted of any offense committed between the ages of 9 and 13 unless it shall appear that he had discretion sufficient to understand the nature and illegality of the act constituting the offense, it is not sufficient that a minor of 12 years of age, accused of forgery, knew the difference between good and evil, or that he had the intelligence of ordinary boys of Ms age, but it must be shown that he understood the nature and illegality of the particular act constituting the offense.
    [Ed. Note. — For other cases, see Infants, Cent. Dig. § 172; Dec. Dig. § 66.]
    3. Inpants (§ 66) — Capacity to Commit Crime — Discretion—Evidence.
    Direct evidence is not necessary to show that an infant between 9 and 13, accused of an offense, had discretion sufficient to understand the nature of the offense.
    [Ed. Note. — For other cases, see Infants, Cent. Dig. § 172; Dec. Dig. § 66.]
    4. Inpants (§ 66) — Capacity to Commit Crime — Burden op Proof.
    Nonage must first be proved by the accused ; but, when the accused shows that he is between 9 and 13 years of age, the state has the burden of proving discretion.
    [Ed. Note. — For other cases, see Infants, Cent. Dig. § 172; Dee. Dig. § 66.]
    Appeal from District Court, Orange County ; W. B. Powell, Judge.
    Jim Scott was convicted of forgery, and he appeals.
    Reversed and remanded.
    Bisland & Adams, of Orange, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted and convicted of forgery, and his punishment assessed at two years’ confinement in the reformatory at Gatesville. No statement of facts nor bills of exception accompanying the record, there is no ground presented in the motion for a new trial that we can review.

The judgment is affirmed.

On Motion for Rehearing.

At a former day of this term this case was affirmed, containing_ neither a statement of facts, nor any bills of exception. Appellant has filed a motion for a rehearing, and accompanies the same with a certified copy of a statement of facts, and a record containing several bills of exceptions. The clerk certifies to the statement of facts and the record in a proper way, and appellant asks to be permitted to substitute them for the record heretofore filed. It appears that prior to the last election the offices of district and county clerk were held by the same man, but at that election the offices were separated. In the division of papers in some way the statement of facts and bills of exceptions in this ease were left in the vault of the county clerk’s office, and in making out the original transcript filed in this court the clerk of the district court made a copy of the records only in his office, and in this way the statement of facts and bills of exceptions were omitted. Mr. Bisland, the attorney for appellant, when this case was affirmed, searched for the papers, and found them in the county clerk’s vault, and delivered them to the district clerk, who has, as before stated, made out an entirely new transcript properly certifying thereto, and it is therefore unnecessary to issue a writ of certi-orari, but we can and will consider the record as thus certified to us. As before stated, there are several bills of exception, but we do not deem it necessary to notice but one of them.

Appellant was charged with forgery. On the trial his mother testified he was only 12 years old. There is no other testimony in the record as to his age. Article 34 of the Penal Code provides: “No person shall in any ease be convicted of any offense committed before he was of the age of nine years, * * * nor of any other offense committed between the years of nine and thirteen, unless it shall appear by proof that he had discretion sufficient to understand the nature and illegality of the act constituting the offense.” This question has been frequently before this court, and it has been held: “It is not sufficient that the minor knows the difference between good and evil, nor that he had the intelligence of ordinary boys of his age. The statutory discretion requires that he should know the nature and illegality of the particular act constituting the offense. Wusnig v. State, 33 Tex. 651; Parker v. State, 20 Tex. App. 451; Gardiner v. State, 33 Tex. 692; Carr v. State, 24 Tex. App. 562 [7 S. W. 328, 5 Am. St. Rep. 905]; Linhart v. State, 33 Tex. Cr. R. 504 [27 S. W. 260]; Keith v. State, 33 Tex. Cr. R. 341 [26 S. W. 412]. Discretion is not required to be proved by direct and positive testimony. ‘But circumstances of education, habits of life, general character, moral and religious instruction, and often circumstances connected with the offense charged, may, in most instances, be proved, so as to convince an intelligent jury whether or not the defendant had the discretion required by the statute.’ Wusnig v. State, 33 Tex. 651; Carr v. State, 24 Tex. App. 562 [7 S. W. 328, 5 Am. St. Rep. 905]. Nonage must first be proved by defendant. McDaniel v. State, 5 Tex. App. 475; Ake v. State, 6 Tex. App. 398 [32 Am. Rep. 586]. Where the defense shows the age between 9 and 13 years, then the burden of proof is on the state to prove the discretion. Wusnig v. State, 33 Tex. 651.”

When appellant proved that he was under the age of 13, then the burden was upon the state to show that he had sufficient discretion to understand the illegality of the act. On this issue the state offered no proof; consequently the judgment cannot be permitted to stand.

The motion for rehearing is granted, and the judgment reversed and cause remanded.  