At the time of the commission of the offense, the evidence shows that the defendant was over nine but under thirteen years of age. His non age being established, the *568burden devolved upon the State, in order to subject him to punishment, to prove that at the time he committed the offense, if he did commit it, he understood the nature and illegality of the act. Proof that he knew the difference between good and evil, or that he was possessed of the intelligence of ordinary boys of his age, does not fill the requirements of the law. It must be shown that he had sufficient discretion to understand the nature and illegality of the particular act constituting the crime.
It is not required that proof of discretion should be made by direct and positive testimony. In most instances, circumstances of education, habits of life, general character, moral and religious instructions, and often times the circumstances connected with the offense charged, will be sufficient to satisfy the jury that the defendant had the discretion required to render him responsible for the crime. (Willson’s Texas Crim. Laws, secs. 71, 72, 73, 74.)
On the trial of this case the court, over the objections of the defendant, permitted several witnesses to state their opinions as to the discretion of the defendant, and these rulings of the court are presented for revision by proper bill of exception, and insisted upon as error. The precise question thus presented. has n over been directly adjudicated by the courts of last resort in this State. A familiar general rule of evidence is that witnesses can only speak as to facts, and can not be permitted to state their belief or opinions. But to this general rule there are well settled exceptions, one of which is that where the issue is as to the sanity of a person, even witnesses who are not experts are permitted to state their Opinions and conclusions upon the facts to which they testify. (Willson’s Texas Crim. Laws, sec. 87. See also as to other exceptions, Cooper v. The State, 23 Texas, 331; Whart. Crim. Ev., secs. 459, 460; Roscoe’s Crim. Ev., 7 ed., pp. 143, 144.)
Should the exception which applies where the issue is sanity apply in this case? We can see no good reason why it should not. In the two cases the inquiry is substantially the same— that is, the mental status of the defendant at the time of the commission of the act. The two issues are analogous, if not precisely the same, and it seems to us that evidence which is competent upon- the one should be held competent upon the other. We hold, therefore, that it was not error to permit the witnesses to state their opinions that the defendant, at the time of the commission of the burglary, had sufficient discretion to *569understand the nature and illegality of the acts constituting that crime, said witnesses having stated • the facts upon which their opinions were based; that is, their acquaintance with the defendant; that he was a bright boy, could read and write, etc. As to the weight to be given to these opinions, that was a matter for the jury to consider and determine, and does not relate to the admissibility of the opinions as evidence.
Opinion delivered January 28, 1888.With respect to the charge of the court upon the issue of the defendant’s discretion, it is in our opinion correct, and presents the defense of infancy affirmatively and clearly. It was not error, therefore, to refuse to give the special instruction requested by the defendant’s counsel, upon said issue.
As to the admissibility of the defendants confession, we think there can be no doubt. He was properly cautioned, before making the confession, that it could be used against him. It was not made under the influence of fear, or of any positive promise of a benefit to be gained by him by making it. Under the rules now governing the admissibility of confessions, we do not think the court erred in admitting the confession. (Rice v. The State, 22 Texas Ct. App., 654; Thompson v. The State, 19 Texas Ct. App., 595.)
That portion of the defendant’s confession which stated that in burglarizing the house he acted under compulsion of another party was contradicted by the testimony of the party named. It was for the jury to determine the credibility and weight of the evidence, and in doing so it was within their province to believe one portion of the confession to be true, and to reject as untrue another portion which had been contradicted by other testimony adduced.
Defendant having confessed that he entered the house with intent to commit theft therefrom, the case is hot one in which the conviction was sought or wholly founded upon circumstantial evidence, and it was not necessary, therefore, that the court should instruct the jury with regard to circumstantial evidence.
We have given this case a careful consideration, and we find no reversible error disclosed in the record. While the evidence of defendant’s guilt can not be said to be entirely free from suspicion and doubt, still it must be regarded as legally sufficient to support the conviction. The judgment is therefore affirmed.
Affirmed.