Wusnig v. State

• Decision Date: 01 January 1870
• Citation: 33 Tex. 651
• Court: Texas Supreme Court
• Parties: WILLIE WUSNIG v. THE STATE.

33 Tex. 651

WILLIE WUSNIG

v.THE STATE.

Supreme Court of Texas.

1870.

1. Under the provision of the penal code (Pas. Dig. art. 1638), that no person shall be convicted of any offense committed between the years of nine and thirteen, “unless it shall appear by proof that he had discretion sufficient to understand the nature and illegality of the act constituting the offense,” it is not sufficient for the state to prove that the defendant, being twelve years of age, knew the difference between good and evil; nor is it enough to prove that the child had the intelligence of ordinary boys of his age. To warrant a conviction the state should have proved that the defendant knew that the killing of a human being was a great crime, prohibited by law under severe penalties.

2. It is not necessary, however, that such proof should be made by direct and positive testimony. In most instances circumstances of education, habits of life, general character, moral and religious instruction, and oftentimes the circumstances connected with the offense charged, may be so proved as to satisfy the jury whether the accused had the discretion required by the statute.

3. In a trial of a boy twelve years of age, for murder, it was error to instruct the jury that the offense was manslaughter “if the shooting took place under such circumstances, showing that the defendant from his youth was incapable of cool reflection; and that his mind was agitated, so as to preclude the idea that he was aware of the enormity of his rash act, and of the serious consequences thereof;” which charge is violative of the statute in withdrawing from the jury any consideration of the question of infancy and responsibility, except so far as the crime might be reduced from murder to manslaughter--of which latter crime the defendant was convicted. The jury should have been required, under proper instructions, to determine whether, under the statute, the defendant was at all responsible for his act.

4. It was also error to charge the jury, in effect, that if the defendant, a boy twelve years old at the time of the homicide, possessed the mental capacity of boys of his age in general, he had sufficient discretion to understand the nature and illegality of the act of which he was charged--there being no evidence that the generality of boys of his age possessed such discretion.

APPEAL from Comal. Tried below before the Hon. G. H. Noonan.

The appellant was indicted in November, 1869, and tried in May, 1870, for the murder of Henry Lohl, a youth about seventeen years of age. The verdict was manslaughter, with two years in the penitentiary.

It seems that the deceased with a younger brother and a sister were laboring in a field when the defendant, then about twelve years of age, who had been gunning, came to where they were, and for an hour or more amused himself at play; after which he got over the fence as though going away, but concealed himself in the bushes and commenced throwing stones at those in the field. The deceased called to him to stop throwing stones, but he continued to do so until the deceased advanced towards him for the purpose of making him stop, when the defendant also advanced and told the deceased to stop or he would shoot. The deceased continued to advance, and the defendant fired, lodging a load of duck or smaller shot in the face and chest of the deceased, from which he died in the evening or night of the ensuing day. The defendant remained for about a quarter of an hour along with the deceased and his younger brother, and seemed neither sorry nor frightened, and made no remarks except “God d--n it.”

The evidence is given with considerable detail and particularity in the transcript; but as the rulings of this court are founded on the charge of the court below to the jury, and not upon the evidence, it is not deemed necessary to give the facts in full.

On this case being remanded, as directed in the opinion, the defendant was put on trial in January, 1871, for manslaughter, and the law of the case as here expounded was given in charge to the jury, who again convicted the defendant of manslaughter, with two years in the penitentiary as his punishment. An appeal was again taken to this court, and the judgment was affirmed. A short opinion was delivered by Mr. Justice Walker, recognizing the second conviction as correct; but as the record presented no legal question calling for decision in the opinion, no report will be made of the second appeal.

John P. White, for the appellant. The fair construction of the statute is that no person under our law up to the age of thirteen years is legally responsible for his acts. Under that age, prima facie, he lacks that which constitutes the very essence of crime, the “sound memory and discretion.” If the party is over the age of nine but under thirteen years, then the state may show his liability to punishment “by proof that he had discretion sufficient to understand the nature and illegality of the act constituting the offense” at the time of its commission. In other words, the presumption under our statutes is that all minors of thirteen years are “ doli incapax;” and the proof necessary to render them liable to punishment is, not that they come up to the ordinary standard of intelligence of persons of their age; nor that they have ordinary capacity and judgment; nor that they have sufficient discretion to understand right from wrong. This proof would perhaps have been sufficient at common law. Our statute requires more. The party must not only possess all these requisites combined, to make him guilty, but he must in addition thereto have “sufficient discretion to understand the nature and illegality of the act constituting the offense.” He may know that it is wrong to shoot another, because he may know that by shooting he will wound, and that to wound will create bodily suffering or even death. Still, such proof would fail to establish the fact that he knew that murder and manslaughter might result from shooting, and that they were two of the highest and most heinous crimes known to the laws, human or divine. Nor would it establish the fact that he knew that the offenses of murder and manslaughter were so grave and so heinous that the law had wisely provided that those guilty of committing such crimes should be punished with death or confinement in the penitentiary. To understand the nature of the act was for him to know that he was committing murder or manslaughter. To understand its illegality was to know that the severest condemnations of the law, to wit: death or imprisonment in the penitentiary, were denounced against the commission of the crime. No such proof as this was made or attempted to be made in the case at bar.

But the proof made in the case does not come up to the standard of the common law rule.

Sir William Blackstone, treating upon the subject of infancy and nonage in relation to crime, says: “But by the law as it now stands, and has stood at least since the time of Edward the Third, the capacity for doing ill or contracting guilt is not so much measured by days and years as by the strength of the delinquent's understanding and judgment. For one lad of eleven years old may have as much cunning as another of fourteen; and in these cases our maxim is that ‘ malitia supplet ætatem.’ Under seven years of age, indeed, an infant cannot be guilty of felony, for then a felonious intention is almost an impossibility in nature; but at eight years old he may be guilty of felony. Also, under fourteen, though an infant shall be prima facie adjudged doli incapax; yet if it appear that he was doli capax, and could discern between good and evil, he may be convicted and suffer death. Thus, a girl of thirteen years was burnt for killing her mistress; and one boy of ten and another of nine years old, who had killed their companions, have been sentenced to death, and he of ten years actually hanged, because the one hid himself and the other hid the body he had killed, which hiding manifested a consciousness of guilt and a discretion to discern between good and evil. And there was an instance in the last century where a boy of eight years old was tried at Abingdon for firing two barns; and it appearing that he had malice, revenge and cunning, he was found guilty, condemned and hanged accordingly. Thus, also, in very modern times a boy of ten years old was on his own confession convicted of murdering his bedfellow, there appearing in his whole behavior plain tokens of a mischievous discretion; and as the sparing of this boy merely...