(After stating the facts.) 1. As we view this case it is necessary to consider and discuss only one ground of the mo-. *139tion for new trial. It will be observed that movant does not allego positively that the court refused the written request to give the charge set forth in the seventh ground, but the complaint is thht he did not give it without qualification. What qualification the court added is left to conjecture, unless we search for it in other pq,rts of the record; and this we will not undertake to do. But it seems to us that in the extract from the court’s charge set forth in the eighth ground of the motion manifest error appears. The court, after instructing the jury correctly as follows; “I charge you that if you believe from the evidence that this defendant was under the age of ten years when the alleged crime was committed, then you would not be authorized to convict,” added the following, to wit: “But you will consider in connection with this all the evidence, the interest of the principal witnesses for the defendant, the appearance of the defendant, and all the circumstances incident to the case. The main question for your determination is this: Under the evidence was the defendant ten years old at the time of the commission of the alleged crime ? If he was, and you believe from the evidence that he is guilty as charged in this bill of indictment, you ought to find him guilty.” In the first place this part of the court’s charge is open to the criticism that it is repugnant to the law forbidding the court in the trial of any case to intimate to the jury his opinion “as to what has or has not been proved.” The language, “you will consider in connection with this all the evidence, the interest of the principal witnesses for the defendant,” not only singles out and calls attention to the infirmity in the testimony of the father and mother of the accused, but would necessarily be •construed by the jury as an intimation by the court that that testimony was the testimony of interested witnesses; and while every man of sense and experience knows full well that each juror was, as fully aware as the judge himself of the intense interest that the’ “principal witnesses for the defendant” had in the result of this case, the vice in the instruction objected to is not thereby cured, for the jury are apt to be influenced by any intimation of opinion by the court even in regard to matters about which their own experience has been as thorough, as long, and as varied as that of the judge. Besides, the law is imperative that where there has been a violation of the rule that the court should not intimate or express. *140an opinion of what has or has not been proved, a new trial must be granted.
•2. Counsel for the State contended that by the evidence it successfully carried the burden incumbent upon it of proving that the accused had sufficient mental capacity to, commit crime, because the father of the prisoner testified that the defendant knew the differ0 cnce between right and wrong. But with this evidence in, it was still a question for the jury to determine whether the boy on trial had the capacity’ ascribed to him by his parent, and the determination of that question was completely taken from them when the court instructed them without qualification that “if he was ten years of age, and you believe from the evidence that he is guilty as charged in this bill of indictment, you ought to find him guilty.” This charge the jury no doubt construed to mean that if the accused was ten years of age and committed the acts alleged in the indictment, he was guilty of the crime charged without reference to his mental capacity; while the law is that if the accused was between ten and fourteen years of age, prima facie he was incapable of crime, and the jury should be instructed that the burden is on the State to establish his capacity therefor, it being their privilege alone to pass upon this evidence; and tñeir province was directly invaded when the judge directed them, after correctly instructing as to their duty in case they found the defendant to be under the age of ten years, in the language of the charge complained of in the ground of the motion now under consideration and last quoted. The jury should have been informed in terms direct and clear that if the infant on trial was between ten and fourteen years of age, his capacity to commit crime must be made to appear from the evidence or from the facts and circumstances of the case; and this is not going as far as some courts and many text-writers have gone where they have laid down the rule that the capacity to commit crime in infants under the age of fourteen years should be made to appear “only by the strongest and clearest evidence.” “There is uncontradicted evidence in the record that plaintiff in error was little more than eleven years of age when the homicide was committed. This evidence was not contradicted, but was virtually conceded by the eighth instruction asked and given for the people. If this was true, and the evidence tended to prove it, the rule required evidence strong and clear *141beyond all doubt and contradiction, that he was capable of discerning between good and evil; and the legal presumption being that he was incapable of committing the crime, for want of such knowledge, it devolved on the people to make the strong and clear proof of capacity, before they could be entitled to a conviction.” Angelo v. People, 96 Ill. 209, 36 Am. Rep. 134, and cit. See also Bish. New Cr. L. 219.
3. Except in the grounds already noticed, no material error is made to appear in the various grounds of the motion for a new trial.
Judgment reversed.
All the Justices concur.
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