#### STATE v. FRANKLIN PUGH.

Although, according to the common law, a boy under the age- of fourteen, is not indictable for an ordinary assault and battery, yet, if the battery be of an aggravated kind, as if it be a maim, or be done with a deadly weapon, or be prompted by a brutal passion, as unbridled lust, the public justice will interfere and punish, if it appear that the accused was doli capax.

Indictment for an assault and battery, tried before Dick, J-., at the last Eall Term of Randolph Superior Court.

The offence was alledged to have been'Committed on the body of one Elizabeth Eoust. She testified that she and the defendant attended a public school as pupils; that one evening after the school was dismissed, she started to go home, leaving the defendant at the school-house; that she had proceeded on her way about half a mile, when she saw the defendant- approaching her in a run; that he soon overtook her and forcibly and against her will, threw her down upon the ground, and held her down (she all the time struggling to get from him,) and that he then and there had his will of her, and then let her up; and that ás soon as she got home, she complained to her mother and step-father. She stated that she was then between thirteen and fourteen years old.

The defendant introduced a witness who proved that he was thirteen years and six months old when the transaction was alleged to have taken place. It was admitted that the defendant was of ordinary capacity, and well grown for his age.

The defendant’s counsel made the following points, and asked the Court to charge them as he laid them down.

1st. That an infant under fourteen years of age, is not liable for a misdemeanor.

2ndly. That the presumption of the law is in favor of the innocence of an infant under fourteen, and that the legal presumption can only be rebutted by strong and pregnant evidence of mischievous discretion.

3rd. That the evidence of malice ought to be strong and clear beyond all doubt and contradiction.

*624th, That the defendant must have a guilty knowledge that he was doing wrong.

5th. That malice in its legal acceptation is not mere personal spite, but consists in a conscious violation of the law.

6th. That it requires as much evidence to convict an infant under fourteen of a misdemeanor as of a felony.

The Court charged the jury that an infant thirteen and a half years old, was liable to answer for a misdemeanor, if the jury believed he had sufficient capacity to distinguish right from wrong; that it was incumbent on the State fully to establish the offence charged, and that be had capacity to know that he was doing wrong. The defendant’s counsel excepted.

Yerdict for the State. Judgment and appeal by the defendant.

Attorney General, for the State.

W. L. Scott, for the defendant, as to the

1st Point: That infants under fourteen are not punishable, for a misdemeanor, cited 4 Bl. Com. ch. 2, page 15; Hales Crown Law, ch. 3, p. 20; Russell on Crimes 2; Wharton’s Am. Cr. Law Book 1, ch. 2, sec. 61; Statutes of Parl. 7, Wm. 4, sec. 1, and Vic. ch. 85, sec 11; Rex v. Brimelaw, 2 Mood, c. c. 122; S. C. 9, C. and P. 366; 3 Coke, ch. 12, p. 570; see also 1 Co. p. 171.

2nd. As to the evidence of malice, which is to supply age, he cited 1 Russ. on Crimes, p. 3, Whart. Am. Cr. Law Book 1, ch. 2; Queen v. Smith, 1 Cox, C. C. 260.

3rd. The presumption of law in favor of the innocence of an infant, Archbold Crim. L. p. 9 and 10; Broom’s Leg. Maxims, p. 112; mar. p. 149.

4th. That the defendant, infant under fourteen, must have a guilty knowledge that he is doing wrong; Whart. Am. Cr. L. sec. 58 and 59; Note under, sec. 65; (b.) Rex v. Owen, 4 Car and Payne 236.

Pearson, J*

The wisdom of the common law is illustrated *63in the rule, that for an ordinary assault and battery, a boy under the age of fourteen, is not liable to indictment; for in the nature of things, “fist-fights,” in which there will be some scratching and pulling of hair, will occasionally occur between school-boys and others, and it is better to leave such matters to the correction which the parent or school-master may, in their discretion inflict, than give importance to it, by bringing “Young America” into court like a man, with all the pomp and circumstance of a trial by the court and jury; which is to result in a fine, to be paid out of the pocket of “papa”!!'

But if the battery be of an aggravated kind, as in the case of maim, or the use of a deadly weapon, or if from numbers it amounts to a riot, or, especially, if it be not the result of a mere pugnacious propensity, b,ut is prompted by a more brutal passion, such as unbridled lust, as in the case before us, the arm of public justice will interfere to vindicate the majesty of the law, and if the party be doli ocipam, he is subject to indictment, and to be punished publicly, although under the age of fourteen years; for, in such cases, malice and wickedness supply the want of age; and, although in a case like the 1 present, the offender cannot be punished capitally, because t the law, in tenderness to human life presumes an inability to ¡ consummate the particular crime, yet, when the intent is\ manifest, he should be made an example of by the utmost punishment which the law allows; so that all others may know and fear the law. 41

If our conclusion required authoritggfcsupport it, it is fur-^P nished by a case of precisely the sam^Bmd, where a boy un-1 der fourteen, although it was held he could not be convicted] of rape or an assault with an intent to commit a rape, was convicted of an assault and battery ; King v. Elderslaw, 14 E. C. L. Rep. 367.

Per Curiam,

Judgment affirmed.