— The single point to be considered in this case is, whether the charge of the court below to the jury was correct. An analysis of that charge shows that the jury were distinctly instructed, that the defendant, being between seven and fourteen years of age, was, prima facie, incapable of committing crime; that to overturn the intendment in favor of his incapacity to commit crime, the jury must be convinced from the evidence beyond a reasonable doubt, after allowing due consideration to the fact that the accused was a negro and a slave, that he knew fully the nature of the act done, and its consequences; and that he showed plainly intelligent design and malice in the execution of the act. This charge, after anxious and careful examination of it, we can not pronounce erroneous.
An infant, above seven, but under fourteen years of age, is presumed not to have such knowledge and discretion, as would make him accountable for a felony committed *328during that period. But, if that presumption is met by evidence clearly proving tbe existence of that knowledge and discretion deemed requisite to a legal accountability, the reason for allowing an immunity from punishment ceases, and, with it, the rule which grants such immunity ceases. There are many cases where children between those ages, being shown to have been cognizant of the criminal nature of the act done, have been punished under the criminal law. A girl, thirteen years of age, was executed for killing her mistress. Two boys, one nine, and the other ten years of age, were convicted of murder, because one of them hid himself, and another hid the dead body; thus manifesting, as was supposed, a consciousness of guilt, and a .discretion to discern betw’ecn good and evil. A boy of eight years of age, who had malice, revenge, and cunning, was hanged for firing two barns. A boy ten years old, who showed a mischievous discretion, was convicted of murdering his bed-fellow. 4 Bla. Com. 23-24.
In the case of Rex v. Owen, 2 Car. & P. 236, it was referred to the jury, to determine whether the act of a girl ten years old, alleged to constitute a larceny, was known by her to be wrong when it was done; and, upon that question, she was acquitted. It is said in Hale’s Pleas of the Crown, page 22, that one between the ages of seven and fourteen might be convicted of a capital offense, “if it appeared by strong and pregnant evidence and circumstances that he was perfectly conscious of the nature and malignity of the crime.” In an American case the same principle is thus stated : “If it shall appear by strong and irresistible evidence that he had sufficient discernment to distinguish good from evil, to comprehend the nature and consequences of his acts, he may be convicted, and have judgment of death.” — State v. Aaron, 1 Southard, (N. J.) B. 231. In that case, a negro boy, who was a slave, of eleven years, was convicted of murder; but a new trial was granted on account of an erroneous ruling as to the competency of a witness, and it does not appear what farther was done in the case.
In the case of the State v. Guild, 5 Halst. 163, a negro *329slave, of less than twelve years, was convicted of murder; and the report of the case informs us, that the defendant was executed. In that ease, the court, dissenting from the cautious statement of the law found in Hale’s Pleas of the Crown, (vol. 1, p. 27,) permitted a conviction upon confessions. In this case, although a confession was given in evidence, the facts proved established the guilt of the accused so clearly, that it is fairly inferrible that no importance was attached to it by the court or jury, and its effect is not noticed in the charge. The question, whether a conviction could be had upon confessions, does not arise, and we do not commit ourselves to the doctrine of the decision last above cited upon that point.
All the authorities concur in maintaining the correctness of the propositions of law involved in the charge. — Bishop on Criminal Law, §§ 283, 284, 285; 1 Archbold’s Crim. Pl. 3, 4, and 5, and notes; 1 Russell on Crimes, 3, 4, and 5; Roscoe’s Crim. Ev. 942, 944; Wharton’s Am. Crim. Law, 51; 1 Wheeler’s Crim. Cases, 231 to 234. Reason, humanity, and the law, alike required that the court should, in its charge, throw around the jury every guard and restriction necessary to prevent an improper conviction in such a case. This has been carefully done by the court in this case, and we are bound to pronounce a full approval of the charge.
The judgment of the city court is affirmed, and its sentence must be executed.