
    The State v. Tice, Appellant.
    
    1. Criminal Law: capacity of infant to commit crime : presumf tion : practice. An infant under seven years of age is incapable of the commission of crime. Between the ages of seven and fourteen lie is prima facie incapable of committing a crime, and this prima facie incapacity must be overcome, by the state, by evidence strong and clear, beyond all doubt and contradiction, before it can establish his criminal capacity.
    2. Practice: instruction. An instruction should not be given where there is no evidence upon which to base it.
    
      Appeal from Polk Circioit Court.— Hon. Ben. V. Alton, Judge.
    Reversed.
    
      J. B. Upton for appellant-.
    
      B. G. Boone, Attorney General, for the state.
   Sherwood, J. —

The defendant, a boy under the age of fourteen years, became involved in a school boy scuffle resulting in a fight, at, or near, the close of which he cut the one with whom he was scuffling with a pocket knife, hence the prosecution which terminated in a verdict of guilty and a fine of one hundred dollars.

Under seven years of age an infant cannot be guilty of felony. In the interval between that age and that of fourteen years, he is prima facie adjudged to be doli incapax. And when an infant is arraigned for a felony this disputable presumption of the law, for the onus fin such cases is on the state, is to be rebutted, and the “evidence of that malice which is to supply age ought to be strong and clear beyond all doubt and contradiction.” 4 Black. Com., 24. In this way only can the legal maxim be applied that “malitia supplet cetatem.” Here there was no attempt made by the state to prove that the boy in question was possessed of that “mischievous discretion” which supplies the place of age, and rendered him amenable to legal punishment. This case, therefore, falls within the rule announced in State v. Adams, 76 Mo. 355. And as there was no evidence on which to base it, any instruction bottomed on the theory that defendant by reason of his intelligence was capable of crime was necessarily erroneous.

Therefore, judgment reversed and cause remanded.

All concur.  