
    Bass v. State.
    (Division A.
    Nov. 4, 1935.)
    [163 So. 838.
    No. 31962.]
    
      T. B. Davis, of Columbia, for appellant..
    W. D. Conn, Jr., Assistant Attorney-General, for the state.
   Smith, C. J.,

delivered the opinion of the court.

This is an appeal from a conviction for burglary. The appellant was not represented by counsel in the court below.

. According to a portion of the evidence, if true, the ap-pellant was only thirteen years old when the alleged crime was committed. There was also some evidence tending to show, that he had passed his fourteenth year when the alleged crime was committed. The only evidence as to the appellant’s capacity for the commission of a crime was that one of the witnesses said he had never heard anything wrong against the appellant, and that he was able to distinguish between moral right and wrong.

No instructions were requested by the appellant, and the only instruction for the state wholly omitted any reference to the necessity of the jury’s believing that the appellant was either over the age of fourteen when the alleged crime was committed, or that, if not, he was of the required capacity for the commission of crime. This omission was fatal error under several prior decisions of this court.

Reversed and remanded.  