Appellant was convicted of burglary, and sent to the reformatory. He sought to continue the case for Pete Cook, Grigsby, and Jackson. Cook was indicted for the same offense, and therefore was not a competent witness. Grigsby, the court says, was then in the reformatory, as he was reliably informed, under a felony conviction. Viewed in the light of the evidence adduced on the trial, the alleged testimony of Jackson is not probably true. By him he expected to prove, that during a conversation had with the witness, appellant ascertained, just prior to the burglary, that Pete Cook was then, at that time, at the house burglarized, with intent of entering it, and that appellant stated he would go after and try and bring him away, and prevent a violation of the law. Newberry, the deputy who was on the inside of, and was watching, the house, testified: That about 10 o’clock at night he heard a noise at the back door. That shortly it opened. Pete Cook entered and filled his pockets and a paper sack with goods. Appellant several times came to the door, and called to Cook to “Hurry up.” The last time he did so he put his head around the door where the officer was standing, and was arrested, and both boys were then conveyed to jail. This witness further stated: “I could not say whether Pete Cook and defendant came to the door together. Just before Cook entered the door I could hear two voices at the door, but could not say what they were saying, *507 or who they were. Pete bad to go to tbe front of tbe bouse to get tbe goods. Defendant pushed tbe door open and put bis bead around tbe door, and said, ‘ Hurry up, Pete;’ and while Pete was getting tbe goods be repeated that remark several times. After I arrested them, they told me where they bad some goods they bad gotten before. I did not find tbe other goods.” There bad been previous entries of tbe bouse, and goods taken at each entry. Tbe officer was watching for tbe burglars at tbe time defendant and Cook were arrested. If tbe absent testimony was admissible in appellant’s behalf, its probable truth is excluded by tbe evidence introduced by tbe prosecution.
It was proved for appellant that be was born between 12 and 2, at night, on tbe morning of October 27,1880, and that be bad been taught to regard October 26th as bis birthday. It was also proved that tbe bouse was burglarized at 10 o’clock at night, October 26, 1893. It is insisted that, under tbe evidence, appellant was between tbe ages of 9 and 13 years at tbe time of tbe burglary, and therefore tbe burden of proof was on tbe State to show appellant “bad discretion sufficient to understand tbe nature and illegality of tbe act constituting tbe offense.” Penal Code, art. 34. If appellant was under 13 years of age at tbe time the offense was committed, the contention is sound, and tbe court erred in refusing to give special instructions requested by appellant. If be bad passed or reached that age, then tbe statute does not apply. The statute has fixed tbe age for tbe purpose indicated, and there is no question of legislative authority to do so. But tbe position is not well taken. He was 13 years of age tbe day before tbe anniversary of bis birthday. Such is tbe view expressed in all tbe authorities accessible. Speaking of tbe time when a person becomes of tbe age of 21 years, tbe Delaware Supreme Court, speaking through Chief Justice Bayard, said: “A person is of tbe age of 21 years tbe day before tbe twenty-first anniversary of bis birthday. It is not necessary that be shall have entered upon bis birthday, or be would be more than 21 years old. He is therefore of tbe age tbe day before tbe anniversary of bis birth; and, as tbe law takes no notice of fractions of a day, be is necessarily of age tbe whole of tbe day before bis twenty-first birthday, and upon any and every moment of that day may do any act which any man may lawfully do. 1 Chit. Gen. Pr., 766. It is to be observed that a person becomes of age on tbe first instant of tbe last day of tbe twenty-first year next before tbe anniversary of bis birth. Thus, if a person were born at any hour of tbe 1st day of January, A. D. 1801 (even a few moments before 12 o’ clock at night of that day), be would be of full age at tbe first instant of tbe 31st of December, 1821, although nearly forty-eight hours before he had actually attained the full age of 21, according to years, days, hours, and minutes, because there is not, in law, in this respect, any fraction of a day, and it is tbe same whether a thing is done upon
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one moment of the day or another.” The State v. Clarke, 3 Har. (Del.), 557. See also Ross v. Morrow;
Ownership of the property and possession of the house were alleged to be in A. H. Cleveland. The testimony disclosed that he held the goods as sheriff under writ of attachment; and the house by virtue of rental contract — the rent being paid out of the proceeds of the goods levied upon. This constituted him special owner, and the indictment correctly laid the ownership and possession in him. It was not necessary to describe Cleveland, in the indictment, as sheriff of the county, or set out the facts constituting him owner of the goods. General allegations were sufficient.
Newberry, deputy sheriff, placed in the house for the purpose of detecting the burglars upon the night in question, was not such special owner as required ownership to be alleged in him. He was simply placed in the house to detect the parties who had been breaking into it. This was the extent of the authority vested in him. There is no evidence showing he had any other character of possession of the property.
The judgment is affirmed.
Affirmed.