1. A person, under the age -of ten years is incapable ■ of committing any criminal offense. Penal Code, §34. A person between the ages of ten and fourteen years cannot he lawfully convicted of a crime or misdemeanor, unless it appears from the evidence -thart; he was capax doli, and the burden of proving -that he was so rests upon the State. Penal Code, §33, and cases cited.
2. It being doubtful under the evidence introduced in the present case whether the accused was above the -age of ten at the time the alleged offense was committed, and certain that he had not then attained the age of fourteen, and the evidence not showing that he knew “the distinction between good and evil,” the verdict of guilty was contrary to law, and there should be a new trial.
3. The newly discovered evidence will, at the next hearing, most-*64probably throw further light upon the question of the age of the accused. Judgment reversed.
Argued October 8, Decided October 19, 1896. Indictment for burglary. Before Judge Fish. Sumter superior court. May term, 1896. Tire burglary was done in April, 1896. The motion for new trial was upon the grounds that the verdict was -contrary to law and evidence; and be'cause of newly discovered evidence. In support of the last ground movant produced two- affidavits: (1) -Henrietta Reese: She is personally acquainted with defendant, and was personally acquainted with Ms m-olther in her life. Defendant was born in March, ■1889, and deponent has continuously kniown him and is ■certain as to his age. (2) Queen Smith: "Was present when the defendant was born and knows that he is hot yet ten years old, hut that he is now in his ninth year. She knows this from the fact that she is a midwife and attended his mother and assisted Dr. Westbrook in 'the confinement of defendant’s mother. At the trial defendant’s father and the husband of defendant’s grandmother both testified, giving circumstances, that defendant was bom in March, 1889. There was evidence for the State from two witnesses, that they had known defendant six or seven years; that they did noit know his •age when they first knew Mm, hut he was a good big boy. One of them testified that when he first knew Mm defendant looked to be about five or six years old, and was then big enough to trot up town 'and carry vegetables; and the ■other, that six or seven years ago- defendant and his sister used to haul liglitwood around in a little wagon. Both of them testified that they knew the general character of defendant’s father; that it was ntot very good; and that from their knowledge of it they would not believe Mm upon oath in a count of justice. L. J. Blalock, for plaintiff in -error. J. M. DuPreev solicitor-general, by J. B. Hudson, contra.