Where one charged with crime is between the ages of ten and fourteen, there is a presumption that he is non capax doli, and the State carries the burden of rebutting by proof this presumption. In the present case the only evidence touching the age of the defendant was that he was only thirteen years of age at the time of the commission of the alleged offense, and there were no circumstances in proof, nor is there anything in the record, from which a contrary inference can be deduced. The prosecution having wholly failed to rebut the presumption arising from proof that the defendant was under fourteen years of age, the verdict finding him guilty was contrary to evidence and contrary to law, and the trial judge erred in overruling .the motion for a new trial. Judgment reversed.
Conviction of assault with intent to rape; from Floyd superior court — Judge Wright.. February 15, 1916. Eubanlcs & Mebane, for plaintiff in error. W. H. Ennis, solicitor-general, contra.