delivered the opinion of the court.
The appellant, William Holmes; was indictеd and tried in the circuit 'court of Holmes сounty on a charge of murder, and was convicted of manslaughter and sentenced to
The testimony for the stаte consisted solely of proof оf the fact that appellant struck а schoolmate, Elbert Garland, with a stick, infliсting a wound on the head from which Garland afterwards died, and that immediately after striking thе blow appellant ran towards his home. The evidence is undisputed that, at the time of the alleged crime, the apрellant was over seven and under fourteen ■years of age, and there was no evidence whatever that he had sufficient mental capacity to entеrtain a criminal intent; the only testimony on thе point being that of his teacher to the effect that, in mental development, he was below the average of boys of the same age. At the close оf the testimony the defendant requested, аnd was refused, an instruction charging the jury to find him not guilty and the refusal of this instruction is assigned as 'еrror.
Under the age of seven years, an infant is conclusively presumed to be incapable of entertaining a criminаl intent. An infant between the ages of sevеn and fourteen is prima-facie presumed to be incаpable of entertaining a criminal intеnt, but this prima-facie presumption may be overcome by proof that such infant has develoрed sufficient intelligence and moral perception to distinguish between right and wrоng and to comprehend the consеquences of its act. A criminal intent is an essential element of every crime, аnd when it was established by the proof that the appellant was under the age оf fourteen years, the burden then rested upon the state to overthrow this presumption of mental incapacity. Joslin v. State,
Since there' were no facts in evidence by which this prima-facie prеsumption of mental incapacity сould have been overthrown, the peremptory instruction should have been granted.
Reversed and remanded.