81 Ky. 448 | Ky. Ct. App. | 1883
delivered the opinion of the court.
The appellant, Bill Ike McClure, and Jo. Woosley, were indicted, tried, and sentenced to the penitentiary for one year for the offense of breaking into a store in the night time, with the alleged “intent to commit the felony of grand larceny.”
The appellant was between thirteen and fourteen years old, and Jo, was between twelve and thirteen years old when the breaking took place.- It appears that Jo. had a grown brother, and that he wanted some pistols and cartridges which were in the store, and got these two little boys to go in and get them for him, and it is quite likely, from his character, that he is the one who did the boring and breaking necessary to let them into the store.
It was a general store, where money was kept in the drawer, tobacco, etc., on the shelves, and jewelry and pistols in the show-case. They did not touch the jewelry and money, wh'ich are generally the most tempting to a real thief. The only things they took were the pistols and cartridges, and a piece or two of tobacco. These facts do not exhibit a voluntary robbery, with full knowledge of the character of the offense, and the responsibility and seriousness belonging to its commission. These little boys were made the dupes and instruments of an older head, but they should not be made the scape-goat of his crime.
They were tried jointly, and it does not affirmatively appear that they had an attorney present and watching their interest during the whole of the trial, for two things occurred which he certainly would have objected to had he been present when they were done. But in his absence, or failure to oppose all illegal action by the Commonwealth’s attorney, it was the court’s duty, of its own motion, without objection or exception from any one, to protect these chil
It also appears from the record that, while their attorney was absent the Commonwealth’s attorney during his speech "stated to the jury that Bird Skaggs had been acquitted last Saturday in this court, and that night James S. Worth-am’s house was fired and burned by him; that he (the Commonwealth’s attorney) was not afraid to live in the community; that he could protect himself, and, if his house burned, he could build another; that Bird Skaggs was a bad boy (about eighteen years old), and so were the defendants in this case, and, if released, they would do something bad just like Bird had done, and that the community ought to be protected; that all the people in it could not protect themselves.” This speech was permitted by the court to be made in the concluding argument against two little boys from whose tender age the law presumes they are not criminally responsible, and that presumption prevails until the 'evidence clearly establishes that they understood the nature of the act charged and its consequences.
Blackstone (p. 23, 4th book) says "the evidence of malice which is to supply age ought to be strong and clear be
The 6th instruction asked by appellant’s counsel, with instructions Nos. 1 and 2, which were given, and the qualifications as to the degree of evidence and insanity indicated in this opinion, would have presented the law applicable to the peculiar facts of this case, and should have been given to the jury. Instruction 6 substantially tells the jury if the defendants broke into the store, as charged, but did so at the request of another, and in consequence of youth or mental infirmity, not perceiving the wicked character of the act, or not knowing their responsibility therefor, they should acquit them of the felony. It was error to refuse this instruction, which was not substantially given in any other form to the jury.
This is not all. The evidence clearly preponderates*to the conclusion that the appellant was not of sound mind. He would drop down on the sidewalk or platform whenever sleep came upon him, and there, like the waif that he was, sleep the sleep of the innocent or unconscious, under no guard but the All-seeing Eye which watched over him. At home, if he had what might be termed a home, in the purer sense of that noble word, he would lie down upon "the hearthstone or floor and take his sleep, instead of repairing to such beds as his parents had. He would fly into a passion in an instant, without provocation, and straightway become affectionate and fondling. But no instruction upon this feature of his case was given, as it should have been, sua spontt, by the court, on account of his tender years, and
Wherefore, the judgment is reversed and this cause remanded, with directions to grant appellant a new trial.