State v. Tice

• Decision Date: 06 December 1886
• Citation: 90 Mo. 112
• Parties: STATE v. TICE.
• Court: Missouri Supreme Court

90 Mo. 112

STATE

v.TICE.

Supreme Court of Missouri.

December 6, 1886.

Appeal from circuit court, Polk county.

Indictment for assault, and conviction. Defendant appeals.

The Attorney General, for the State. J. B. Upton, for appellant.

SHERWOOD, J.

The defendant, a boy under the age of 14 years, became involved in a school-boy scuffle, resulting in a flight, at or near the close of which he cut the one with whom he was scuffling with a pocket knife; hence the prosecution, which terminated in a verdict of guily, and a fine of $100. Under seven years of age an infant cannot be guilty of felony. In the interval between that age and that of 14 years he is prima facie adjudged to be doli incapax. And, when an infant is arraigned for a felony, this disputable presumption of the law-- for the onus in such cases is on the state--is to be rebutted; and the “evidence of that malice which is to supply age ought to be strong and clear, beyond all doubt and contradiction.” 4 Bl. Comm. 24. In this way only can the legal maxim be applied that malitia supplet atatem. Here there was no attempt made by the state to prove that the boy in question was possessed of that “mischievous discretion” which supplies the place of age, and rendered him amenable to legal punishment. This case, therefore, falls within the rule announced in State v. Adams, 76 Mo. 355; and, as there was no evidence on which to base it, any instruction bottomed on the theory that defendant, by reason of his intelligence, was capable of crime, was necessarily erroneous.

Therefore judgment reversed, and cause remanded.

(All concur.)