Heilman v. Commonwealth

• Decision Date: 13 November 1886
• Citation: 84 Ky. 457
• Parties: Heilman v. Commonwealth.
• Court: Kentucky Court of Appeals

84 Ky. 457

Heilman v. Commonwealth.

Court of Appeals of Kentucky.

November 13, 1886.

APPEAL FROM HENDERSON CIRCUIT COURT.

THOMAS E. WARD FOR APPELLANT.

JUDGE HOLT DELIVERED THE OPINION OF THE COURT.

Under an indictment for the rape of a child under twelve years of age, the appellant, George Heilman, has been convicted and sentenced to the penitentiary for ten years for carnally knowing a child under that age. The evidence tends strongly to show that he was between eleven and twelve years of age at the time of the alleged commission of the offense. The jury were, in substance, told that a boy over fourteen years of age is presumed in law to be capable of the act, but incapable if under that age; but if they found, from the evidence, that the appellant was at the time under that age, and yet physically capable of the act, then they should convict him of rape, if done with force; and if not, then of carnally knowing the child. No instruction whatever was given upon the question whether he, at the time, had discretion and mind enough to know the wrongful character of the act.

By the common law, a child under seven years is conclusively presumed to be incapable of the commission of crime. Within that age he is absolutely presumed to be doli incapax; between seven and fourteen he is so only prima facie, and the maxim applies malitia supplet aetatem. In the latter case, his criminal mental capacity may be shown; and the question is whether there was a guilty knowledge of wrong-doing. The age of fourteen years is known under the common law as that of discretion; but by it, if it appears that an infant under that age, but over seven, has mind to distinguish between good and evil, as if a child twelve years old kill another and then hide the body, he is liable to conviction. In such a case, it must be left to the jury to say whether the accused did the act, and if so, whether he had a guilty knowledge of it; and the intent, instead of being inferred, as in the case of one over fourteen years of age, must be proven. Indeed, it has been said by perhaps the most eminent common law writer: "The evidence of that malice which is to supply age ought to be strong and clear, beyond all doubt and contradiction."

The presumption in his favor when under seven years of age is indisputable; but it is reasonable that from that time until he arrives at the age of discretion, the presumption in his favor should diminish. It is, however, a rule of the English common law that a boy under fourteen is conclusively presumed to be incapable of committing a rape, the malice not supplying the age as to it as in other crimes. This doctrine has been adhered to in some of the States, and under it no evidence is admissible to show that the accused has in fact arrived at puberty, and could commit the offense.

It is, therefore, urged in this case that the jury should have been peremptorily instructed to acquit the accused. This...