dissenting :
As this case was triable exclusively in the oyer and terminer, it is to be presumed that the defendant was present in court, as the record states, and under the circumstances it is to be reasonably inferred that he was where he could see the jury and the jury could see him. It is apparent from the charge of the court that this was the case, and it is not to be supposed that the trial judge would have submitted the case to the jury in the manner he did unless it was so. Further, when the court told the jury that they might judge of his age from his appearance, no suggestion was made by his counsel that he was not where he could be seen by them, and no application for a new trial was made upon that ground, or the ground of surprise. As I view the case, it turns upon the question whether it is error and ground for reversal to permit a jury to find from the appearance of a defendant on trial before them for this offense that he was sixteen years of age, there being no other evidence introduced by either side as to that matter. Professor Wigmore says upon this subject : “ Experience teaches us that corporal appearances are approximately an index of the age of their bearer, particularly for the marked extremes of old age and youth. In every case such evidence should be accepted and weighed for what it may be in each cage worth. In particular, the appearance of an alleged minor may be considered in judging of his age; a contrary rule would be pedantically over-cautious: ” 1 Wigmore on Evidence, sec. 222. Numerous decisions are cited in support of the doctrine of the text, and amongst these, Commonwealth v. Hollis, 170 Mass. *176433; State v. Arnold, 13 Iredell, 184, and Hermann v. State, 73 Wis. 248, are particularly pertinent here. Reference should also be made to the Pennsylvania case of Snodgrass v. Bradley, 2 Grant, 43, where in an action brought for injuries to the plaintiff’s son it was held that there was no error in the instruction that the infancy of the son might be reasonably inferred, and generally, that “ there is no error in permitting the jury, in a proper case, to infer the infancy of a witness who has given testimony in their presence.” It is worthy of notice that neither the report of the case, nor the opinion, shows that the appearance of the witness in that case was formally put in evidence, or called to the attention of the court and jury as part of the plaintiff’s case in chief. Presuming in the case at bar, as we must, that the jury obeyed the instructions of the court, their verdict necessarily implies that they were convinced by the defendant’s appearance, beyond a reasonable doubt, that he was of the statutory age. For aught we know, this fact was so apparent that there was no room for doubt. If, therefore, this conviction is to be set aside upon appeal (I say nothing as to the authority of the trial court to set it aside upon a consideration of the sufficiency of the evidence furnished by the defendant’s appearance in the particular case), it must be upon the ground, I respectfully submit, that there is an inflexible rule of law which makes it incumbent on the commonwealth to produce other evidence of the defendant’s age on the trial of every indictment for this offense. The question, therefore, is important, and being firmly of opinion that such rule has not been established by controlling authorities, and that it would be unsound in principle, I am constrained to record my dissent from the judgment about to be entered. Judge Pobteb. and Judge ObladY authorize me to say that they concur in the foregoing dissent.