The defendant was indicted for murder, and was convicted of manslaughter in the first degree. The accused was a youth about fourteen years old; but whether he was under or over that age, was a controverted question before the jury. Most of the questions reserved have some relation to that inquiry.
There is a common-law principle, venerable for its age, that in case of a minor between seven and fourteen years of age, the presumption is, that he or she had not the requisite guilty knowledge of the wrongfulness or wickedness of the act charged, to authorize a conviction of felony. But the presumption is only prima facie, and may be rebutted by clear evidence of a mischievous discretion, or by proof of loiowledge of good and evil, which knowledge must be distinctly made to appear from the evidence. — 4 Amer. & Eng. Encyc. of Law, 684. In 1 Wharton Cr. Law, (9th Ed.) § 68, the principle is thus stated: “Between the age of seven and fourteen, responsibility is conditioned on capacity. If it appears that a child within these limits is capaos doli, which is to be determined by the circumstances of the case, he may be convicted and condemned. . . . As to a child between seven and fourteen, the presumption is rebut-table, the burden of overcoming it being on the prosecution; the intensity of the proof varying with age and other circumstances.” And, in 1 Bish. Or. Law, (7th Ed.) §390, that author says : “ Evidently the presumption of incapacity decreases with the increase of years. There is a vast difference between a child a day under fourteen, and one a day over-seven.”
*609Godfrey v. State, 31 Ala. 323, presented the question we are considering. Godfrey was about eleven or twelve years old when he committed the homicide for which he was tried. He was indicted and tried for murder, and found guilty as charged. The trial court, in charging the jury, among other things, said, “ that if they were satisfied that the defendant was the guilty agent, and that the charge was established as alleged in the indictment, they must ascertain whether the defendant was of sufficient age and intelligence to be capable of committing the offense, and to be held accountable for Iris acts ; that no one under the age of seven years should be responsible for the commission of a felony; that from seven to fourteen years of age, the presumption was that a child had not sufficient discretion or judgment to be held accountable for his acts, Avhen charged with a felony, but that this presumption might be rebutted by evidence ; that they must take into consideration his condition as a negro and a slave, Avith all the evidence in the case ; and that unless they Avere satisfied from the evidence that he was fully aAvare of the nature and consequences of the act Avliich he had committed, and had plainly shown intelligent malice in the manner of executing the act, they should render a verdict of not guilty; but, if, on the whole evidence, they AArere satisfied beyond a reasonable doubt that he Avas fully aware of the nature and consequences of the act he committed, and had plainly shoAvn intelligent design and malice in its execution, they Avould be authorized to return a Amrdict of guilty.’” This court, in a very careful opinion, based on many authorities, pronounced a full approval of the foregoing charge, and affirmed the judgment of con Auction.
We fully approve the principles declared in Godfrey's Case, and will folloAV them.
Another important legal inquiry is raised by the rulings of the trial court. To what extent, and under what limitations, are confessions of a person under fourteen years old to be received as criminating evidence, Avhen such person is on trial for a felony? It has been often said, that such confessions can not be made the basis of a conviction, without proof aliunde of the corpus delicti/ that is, that the alleged crime has been committed by some one. Such proof was made in this case. It was shown that the deceased came to his death by a violent bloAV on the head, fracturing his skull. We think Ave folioav the weight of authority, and reason as well, when we hold that, the corpus delicti being otherwise shown, a comdction of felony may be had against ¿ defendant under fourteen years of age, on confessions alone, if clearly established, and if it be fully proved that the accused Avas doli capax-, under the care*610ful rule declared in Godfrey's Case. — 4 Amer. & Eng. Encyc. of Law, 685, and note 6; 1 Bish. Or. Law (7th Ed.), § 370, n. 8; 1 Whar. Or. Law, § 74, and notes; State v. Guild, 5 Halst. 163; Rex v. Thornton, 1 Moody, 27; Com. v. Smith, 119 Mass. 305; 1 Bish. Cr.Proc. (3d. Ed.), § 1231.
Another question is raised as to the manner of proving the age of the accused. A witness, Gilbreath, testified, against defendant’s objection, that in his opinion or judgment he was fifteen. or sixteen years old. ILe stated he had known defendant about seven or eight years, and that the testimony he gave was only his opinion, or judgment. The court erred in receiving this evidence, which was, at most, a mere inference or opinion of the witness. The authorities are not in harmony on this question. It is sometimes said a physician may give his opinion as an expert; but we need not decide that. What we decide is, that a nozi-expert cazi not give his opinion on the question of age. Jurors, seeizig the prisoner, may azid will draw their inferences, based on his appearance; but we hold it would be too perilous to allow a non-expert witness to give his opiniozi in such a case as this, evezr if a physician should be perznitted to do so. — 1 Whar. Or. Law, § 73; 4 Amer. & Eng. Encyc. of Law, 685, zr. 5. Weed v. State, 55 Ala. 13, construed in the light of the facts, is ziot opposed to this principle.
Possibly witnesses could speak with some confidezice of the probable age of an infant in the arms of its nurse; but developznezit, after that stage, is so uziequal, that it would be dangerous to receive opinion evidence, at least of a non-expert upon a question of such vital importance to the accused. Weed v. State, supra.
The Circuit Court did not err in allowing witnesses acquainted with the accused to give evidence that he was, or was not, of bright or quick mind. It would seem difficult to prove it izi any other -way. Such proof was received izi Godfrey's Gase. Nor did the court err in any other ruling on the evidezice to which exceptiozi was reserved, except one. It was attempted izi defense to show that deceased had a violent temper, or disposition. The circumstances of this case authorized such proof, if it could be made.—King v. State, pp. 612-17, and authorities cited. In rebuttal, the State was permitted to prove that deceased “had not the character of being a bad boy.” The court erred izi this. In common parlance, the two traits— character for violent temper, and bad boy — are not one and the same. One may have a hasty or violent temper, and yet, in common acceptation, not be regarded as a bad boy. Amiable, *611peaceable, slow to anger, make up the antithesis to quick or violent temper.
All the testimony tended to show that the accused was near, if not quite fourteen years of age, when the homicide was committed. The Circuit Court did not err in refusing to exclude all evidence of defendant’s confessions. We have seen that, in a case like this, such confessions are not, as matter of law, illegal evidence. Their sufficiency was for the jury. If they, together with the other testimony, amounted to that fuller measure of proof which is required when the defendant is ascertained to be under fourteen, then the defendant was properly convicted, whether he had attained the age of fourteen or not.
Under the foregoing rules, we hold that the Circuit Court did not err in refusing to give charges 1, 2, 4, 11, 15, 16. Charges 1, 4 and 11 are clearly bad under the rules we have declared. The first is faulty, because it misplaces the burden of proof as to reasonable apprehension of an attack. The others are fatally bad. Charges 15 and 16 are argumentative, and were rightly refused on that account. An additional fault is found in the fact that they deny to the jury the privilege of considering the appearance of defendant in determining his age.
It is true that one in his own domicil may defend himself without retreating therefrom.—Roberts v. State, 68 Ala. 156; 9 Amer. & Eng. Encyc. of Law, 606. If, however, he has retreated from his domicil and inclosure, and he attempts after-wards to defend himself, the principle which excuses one from retreating from his own domicil is no longer applicable. Watkins v. State, 89 Ala. 82. He may not then strike with a deadly weapon, unless it reasonably appears to be necessary to save himself from grievous bodily harm. The doctrine of retreat, or continued retreat, would apply in the case supposed. 3 Brick. Dig. 219, § 574. These remarks apply to charges 5 and 8, asked by defendant.
Charges 3, 6, 7, 9, 10, 12, 13 and 14 ought to have been given.
Reversed and remanded.