
    4761.
    Brown v. The State.
    Decided May 20, 1913.
    Indictment for murder—conviction of manslaughter; from Bibb superior court—Judge Matliews. January 1, 1913.
    
      John B. Cooper, for plaintiff in error.
    
      John P. Boss, solicitor-general, contra.
   Hill, C. J.

1. Under the statute of this State, a person between the ages of ten and fourteen years can not be legally convicted of a crime, unless it appears from the evidence that he was capax doli; and the burden of proving that he was so rests upon the State. Penal Code (1910), § 33; Ford v. State, 100 Ga. 63 (25 S. E. 845). Tlie court should have charged the jury to this effect, in accordance with a written request, timely made.. An instruction to the effect that, in determining the question as to the mental responsibility of the accused for his conduct, the jury should consider any evidence showing what he did, how he acted, what he said, in fact the whole case in all of its aspects, to determine whether he knew good from evil, and that if the jury had a reasonable doubt on this question, they should acquit, was not equivalent to the instruction requested.

2. Since the decision of the Supreme Court in the case of Cumming v. State, 99 Ga. 662 (27 S. E. 177), it has been uniformly held by that court and by this court that a charge to the jury that “provocation by .words, threats, menaces, or contemptuous gestures shall in no. case be sufficient to free the person killing from the guilt and crime of murder” (Penal Code, § 65) should not be given, without qualification, where there is a theory of the evidence, or of the defendant’s statement to the jury, on which the jury might find that the person killing acted in self-defense, on account of a reasonable fear aroused in his mind by menaces, etc., considered in connection with the other facts in the ease. In the present case the theory of the defense, based upon the statement of the accused, was to the effect that the accused, in killing the decedent, did so under the fears of a reasonable man that the decedent was endeavoring to take his life or to commit a felony on his person; these reasonable fears being aroused by menaces, accompanied by the act of drawing a knife on the accused by the decedent.

3. Except as above indicated, no substantial error of law appears.

Judgment reversed.  