It was in proof by the direct and positive testimony of the father of appellant that the boy was bom upon the 27th of October, 1873. The date of the commission by him of the burglary charged is fixed in the indictment on the 10th day of December, 1885. This would make the age of defendant at the latter date twelve years, one month and thirteen days.
Our statute provides that “ no person shall in any case be con*454victed of any offense committed before he was of the age of nine years; nor of any offense committed between the years of nine and thirteen unless it shall appear by proof that he had discretion to understand the nature and illegality of the act constituting the offense.” (Penal Code, art. 34.) This statute is provided as a protection for all children of ordinary intelligence who are within the prescribed limits of non-age, that is, under thirteen years,— all such being presumed to be “ doli incapaxP To hold such amenable for violations of the law, in addition to their ordinary intelligence it is therefore required that it shall appear by proof that the child “had discretion sufficient to understand the nature and illegality of the act constituting the offense.”
The State must prove this discretion after defendant has established his non-age; and proof that defendant knew good from evil, or right from wrong, or that he was possessed of the intelligence of ordinary boys of his age, does not fill the requirement of the statute. It must be shown that he understood the nature and illegality of the particular act constituting the crime. (Wusnig v. The State, 33 Texas, 651; Gardner v. The State, 33 Texas, 692; McDaniel v. The State, 5 Texas Ct. App., 475.)
We confess that to our minds upon this point the evidence in the case we are considering is very unsatisfactory. His father testified that he had always tried to teach the boy what was right,— had sent him to school a good deal,— but, finding he was not learning anything, stopped him. For the prosecution four witnesses “ testified that they knew the defendant, but did not know his exact age. He was a boy of average intelligence of boys of his size and age, and had sense enough to know right from wrong, and to know that it was wrong to break into a house at night and steal.” The statute seems to contemplate that he should not only know that the act was wrong, but that it was also illegal,— that is, that it was an act which the law denounced and punished.
The evidence as disclosed in the statement of facts is entirely circumstantial. It is true the prosecuting witness Wear says he told defendant that he, witness, “ knew all about it, and he might as well own up, as he had been seen in the store, and tell all about it, as I had him. He then went off and in a short while returned with the pistol and delivered it to me.” But he does not say that defendant confessed to him that he committed the burglary. His bringing the pistol was a very strong circumstance of guilt, but, without being accompanied by a direct confession, it was only a circumstance. Such being the character of the testimony, *455it was the duty of the court to have charged the law relative to that,character of testimony; which was not done.
[Opinion delivered March 3, 1886.]The judgment is reversed and the cause remanded.
Reversed and remanded.