Beason v. State
50 So. 488
Miss.
1909
Check Treatment
Smith, J.,

delivered the opinion of the court.

Appellant, a boy under the age of fourteen years, was convicted in the court below of the crime of rape. There was no evidence of his mental capacity to entertain a criminal intent, or of his physical ability to commit the crime of rape. At the close of the evidence, appellant requested, and was refused, an ins-traction charging the jury to find him not guilty. A criminal intent is an essential element of every crime. Such an intent cannot be entertained by an infant until he or she has developed sufficient intelligence and moral perception to dis-*108tinguisli between right and wrong and to comprehend the consequence of his or her act.

Under the age of fourteen years an infant is presumed not to have reached this state of development, and to be incapable of entertaining a criminal intent. But as in fact the age at which children reach this state of development varies, this presumption between the ages of seven and fourteen is only prima facie, and can be overcome by proof. Under the age of seven this presumption is conclusiva Westbrook v. Railroad Co., 66 Miss. 567, 6 South. 321, 14 Am. St. Rep. 587; 22 Cyc. 622; 16 Am. & Eng. Ency. of Law (2d ed.) 311. In the crime of rape, in addition to- mental capacity to entertain a criminal intent, there is also involved the element of physical ability to ■commit it, and this physical ability cannot exist until the infant has arrived at the age of puberty. In most jurisdictions, ■an infant under the age of fourteen is. conclusively presumed not to have arrived at the age of puberty, and hence incapable of committing rape. Bht the rule, and we think the safer rule, in some jurisdictions is that this presumption is only a prima facie one, and can be overcome by proof. 16 Am. & Eng. Ency. of Law (2d ed.) 315, and authorities there cited.

The learned judge who tried the case in the court below ■seems to have correctly announced the law in his instructions to the jury; but, as there°were no facts in evidence by which these presumptions could have been overthrown, there was nothing to submit to the jury, and the peremptory instruction should have been given.

Reversed a/nd remanded.