The offense was alleged to have been committed on the body of one Elizabeth Foust. She testified that she and the defendant attended a public school as pupils; that one evening after school was dismissed she started to go home, leaving the defendant at the schoolhouse; that she had proceeded on her way about half a mile when she saw the defendant approaching her in a run; that he soon overtook her and forcibly and against her will threw her down upon the ground and held her down (she all the time struggling to get from him), and that he then and there had his will of her, and then let her up; and that as soon as she got home she complained to her mother and stepfather. She stated that she was then between 13 and 14 years old.
The defendant introduced a witness who proved that he was 13 years and 6 months old when the transaction was alleged to have taken place. It was admitted that the defendant was of ordinary capacity and well grown for his age.
The defendant's counsel made the following points, and asked the court to charge them as he laid them down:
1. That an infant under 14 years of age is not liable for a misdemeanor.
2. That the presumption of the law is in favor of the innocence of an infant under 14, and that the legal presumption can only be rebutted by strong and pregnant evidence of mischievous discretion.
3. That the evidence of malice ought to be strong and clear beyond all doubt and contradiction.
4. That the defendant must have a guilty knowledge that he (62) was doing wrong.
5. That the malice in its legal acceptation is not mere personal spite, but consists in a conscious violation of the law.
6. That it requires as much evidence to convict an infant under 14 of a misdemeanor as of a felony.
The court charged the jury that an infant thirteen and a half years old was liable to answer for a misdemeanor, if the jury believed that he had sufficient capacity to distinguish right from wrong; that it was incumbent on the State fully to establish the offense charged and that he *Page 49 had capacity to know that he was doing wrong. The defendant's counsel excepted.
Verdict for the State. Judgment, and appeal by the defendant. The wisdom of the common law is illustrated in the rule that for an ordinary assault and battery a boy under the age of 14 is not liable to indictment; in the nature of things, (63) "fist-fights," in which there will be some scratching and pulling of hair, will occasionally occur between schoolboys and others, and it is better to leave such matters to the correction which the parent or schoolmaster may in their discretion inflict than give importance to it by bringing "Young America" into court like a man, with all the pomp and circumstance of a trial by the court and jury, which is to result in a fine, to be paid out of the pocket of "papa"!
But if the battery be of on aggravated kind, as in the case of maim, or the use of a deadly weapon, or if from numbers it amounts to a riot, or, especially, if it be not the result of a mere pugnacious propensity, but is prompted by a more brutal passion, such as unbridled lust, as in the case before us, the arm of public justice will interfere to vindicate the majesty of the law, and if the party be doli capax, he is subject to indictment and to be punished publicly, although under the age of 14 years; for, in such cases, malice, and wickedness supply the want of age; and although in a case like the present the offender cannot be punished capitally, because the law, in tenderness to human life, presumes an inability to consummate the particular crime, yet when the intent is manifest, he should be made an example of by the utmost punishment which the law allows, so that all others may know and fear the law.
If our conclusion required authority to support it, it is furnished by a case of precisely the same kind, where a boy under 14, although it was held he could not be convicted of rape or an assault with intent to commit rape, was convicted of an assault and battery. King v. Elderslaw, 14 E. C. L., 367.
PER CURIAM. No error.
Cited: S. v. Gray, 53 N.C. 173; S. v. Sam, 60 N.C. 296; S. v.Yeargan, 117 N.C. 708. *Page 50
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