Kear v. State

Wood, J., (after stating the facts.) In Harrison v. State, 72 Ark. 117, we said: “The law presumed that a boy thirteen years of age is incapable of committing a crime, and it devolved on the State to show that he had mental capacity and intelligence enough to know right from wrong in reference to the offense with which he was charged. In this the State failed, and the presumption of his incapacity, in the absence of such proof, must prevail. In Dove v. State, 37 Ark. 261, it is said that ‘when the accused is between the ages of 12 and 14, the common-law presumption still prevails that he or she is not doli capax, or capable of discerning between good and evil, until the contrary is affirmatively shown by the evidence. No witness was examined as to the intelligence of appellant, or as to his knowledge of right and wrong, good and evil.’ ” Measured by this rule, the evidence on the part of the State does not overcome the presumption that appellant was incapable of committing the crime charged. There must be affirmative evidence of that kind by experts or those so intimately acquainted with his nature, habits, and disposition as to enable them to testify intelligently about them. Or the facts and circumstances of the killing, and the conduct of the defendant with reference thereto, must show that the appellant at the time he did the killing had a guilty knowledge that he was doing wrong. I Bishop, New Cr. Taw, § 368; Rex v. Owen, 4 Car. & P. 236; 4 Blackstone, Com. *23; Broom’s Tegal Maxims, 8th Ed. 316. There is at most not more than a scintilla of evidence to show that appellant was conscious of the fact that he was doing wrong when he fired the fatal shot. This is not sufficient to warrant his conviction. The verdict is without evidence to support it, and the judgment for this reason is reversed, and the cause is remanded foi new trial.