
    (45 Misc. Rep. 309.)
    PEOPLE v. DOMENICO et al.
    (Oneida County Court.
    November, 1904.)
    1. Criminal Law—Infants—Capacity to Commit Chime.
    The presumption created by Pen. Code, § 19, that a child between the ages of 7 and 12 is incapable of committing crime, can be rebutted only by affirmative proof that the child had capacity to understand the wrongful character of the act complained of.
    [Ed. Note.—Eor cases in point, see vol. 14, Cent. Dig. Criminal Law, § 741; vol. 27, Cent. Dig. Infants, § 172.]
    2. Same—Plea of Guilty.
    A plea of guilty by a child between 7 and 12 years of age will not overcome the presumption that such a child is incapable of committing crime, under Pen. Code, § 19.
    3. Same—Evidence.
    On appeal by children between the ages of 7 and 12 from a conviction of crime, the return stated that no evidence was taken as to their capacity to commit crime, for the reason that the court, from their appearance, and conversation with them and their parents, was convinced that they had capacity to understand the act charged and its wrongfulness. Held insufficient to sustain the conviction and overcome the presumption created by Pen. Code, § 19, that a child of such age is Incapable of committing crime.
    Appeal from Court of Special Sessions.
    Nanny Domenico and Walter Watkins were convicted of larceny, and appeal. Reversed.
    D. F. Searle, for appellants.
    T. Curtin, Dist. Atty., for the People.
   DUNMORE, J.

The above-named defendants were convicted of the crime of petit larceny upon their plea of guilty. Upon the trial the age of each of said defendants was given to the court as “past seven.” No evidence was given or offered by the people as to the capacity of either defendant to comprehend the nature of the act. It appears that they took a hen and six chickens from a coop in the rear of complainant’s store, and when he went to investigate found them returning with the hen and four chickens. What became of the other two chickens does not appear.

Section 19 of the Penal Code provides:

“A child of the age of seven years, and under the age of twelve years, is presumed to be incapable of crime, but the presumption may be removed by proof that he had sufficient capacity to understand the act or neglect charged against him, and to know its wrongfulness.”

This is not a new provision. By the ancient Saxon law the age of 12 years was established for the age of possible discretion, when first the understanding might open; and from thence till the offender was 14 it was aetas pubertati próxima, in which he might or might not be guilty of a crime, according to his natural capacity or incapacity. By the common law, as it has stood at least ever since the time of Edward III, the capacity of committing a crime, within certain limits of age, is not so much measured by years and days as by the strength of the delinquent’s understanding and judgment. 4 Black. Com. 23. In all such cases, 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.

The Penal Code preserves the rule of the common law, except that it fixes the age of 12 instead of 14 as the time when the presumption of incapacity ceases. In Angelo v. People, 96 Ill. 209, 36 Am. Rep. 132, Mr. Justice Walker, in referring to the conviction of a boy 11 years of age, says:

“The rule required evidence, strong and clear beyond all doubt and contradiction, that he was capable of discerning between good and evil, and, the legal presumption being that he was incapable of committing the crime for want of such knowledge, it devolved on the people to make the strong and clear proof of capacity before they could be entitled to a conviction. This record may be searched in vain to find any such proof. There was no witness examined on that question, nor did any one refer to it.”

The return in this case contains the following statement:

“No evidence was taken as to the defendants’ capacity to commit the crime charged, for the reason that, from their appearance and my conversation with them and their mothers in court, they had sufficient capacity to understand the act charged and its wrongfulness; and the further reason that I regarded their plea of guilty as an admission of every fact necessary to establish a conviction.”

Any conversation which the court below had with defendants, or any other evidence received by the court bearing upon the mental capacity of the accused, should have been returned on this appeal, so that this court could have reviewed the same for the purpose of ascertaining whether the evidence was sufficient to establish mental capacity. In the absence of such evidence, this court must disregard the conclusion of the court below. The plea of guilty was evidence that the defendants committed the act charged, but was ño proof of the capacity of defendants to understand the wrongfulness of the act. I am satisfied that in cases against children between the ages of 7 and 12 years, charging them with the commission óf a crime, the presumption of incapacity can only be rebutted by affirmative proof on the part of the prosecution that such children had capacity to understand the wrongfulness of the act charged against them. Capacity to commit a crime by a child between the ages of 7 and 12 years can' no more be inferred, without evidence, than can any other material fact. People v. Squazza, 40 Misc. Rep. 71, 81 N. Y. Supp. 254.

Judgment of conviction reversed, and new trial granted.  