Mr. Chibs' Justice Fuller,
after stating the cáse, delivered the opinion of the court.
The rule of the common law was that one under the age of seven years could not be guilty of felony or punished for any capital offence, for within that age the infant was conclusively presumed to be incapable of committing' the crime; and that while between the ages of seven and fourteen the same presumption obtained, it was only prima faeie and rebuttable. The maxim — malice supplies the want of maturity of years — was then applied and, upon satisfactory'evidence of capacity, the child within these ages might- be punished; but no presumption existed in favor of the accused when above fourteen.
The' age of irresponsibility has been changed in many of the States by statute, and among others, in Arkansas, where it is provided that “ An infant under twelve years of age shall not be found guilty of any crime or misdemeanor,” Ark. Stat. Dig. 1884, 425, c. 45, § 1498, it being held, however, that the common law presumption that a person between the ages of twelve and fourteen is incapable of discerning good from evil, until the contrary is affirmatively shown, still prevails. Dove v. State, 37 Arkansas, 261.
In the case at bar, the defendant testified on the trial, February 13, 1893, that he would be fifteen years old the coming March, and, if this were so, he was fourteen in March, 1892, [559]*559and, as the homicide was committed on May 14 .of that year, he was at that time some two months older than fourteen years. There seems to have been- no controversy over his age, and as to whether his appearance was that of a boy less than fourteen, we have, of course, no means of knowledge. The court was not, so far as this record shows, requested to charge in reference to-the age of accountability, and it may be, as suggested, that the matter was adverted to out of consideration for the accused,.because immediately after the statement on this subject the learned judge goes on to say that defendant could not be found guilty of any crime unless the jury were satisfied from the whole of the testimony and from the law given to them “that the state of the case which makes the crime is established beyond a reasonable doubt.” But' this he was bound to charge in any aspect, and the difficulty here is that through some inadvertence the prima facie presumption as to lack of accountability was declared to terminate at eleven years instead of fourteen. And while' it is properly argued by counsel for the government that this was not an error injurious to the defendant, because on his own statement he had passed the age of fourteen, yet we are not altogether- satisfied that the result was not prejudicial. Where -the question is whether the homicide was. or was not done with malice, wrongfully, intentionally, and without just cause or excuse, it would seem proper that-the attention of the jury should be called to .the youthfulness of the offender, if the circumstances rendered that fact significant; and since in this case the presumption of the lack of accountability had obtained until within two months of ‘the homicide, if the defendant’s own statement as to his age is to be accepted, an instruction which treated him as having been under the weight of full accountability three years longer than was the fact, may have tended to weaken the effect upon the minds of the jurors which his youth might have otherwise had, and to which the humanity of the law regards him as entitled. The burden of proving legal capacity, as of other facts necessary to make out the defendant’s guilt, was upon the government; and although the presumption from the defendant’s age may have been such as [560]*560to sustain that burden, yet, as the court charged in relation to the age of accountability, we are not persuaded that the consequences of want of accuracy ought to be assumed to have been harmless.
. We do not care,.however, to dispose of the case upon.this ground, as another and more serious exception was saved. The contention on the part of the accused was that there was no premeditation on his part; that he was engaged in a'fight in which he was struck and thrown down, and, in the heat of the struggle, committed the homicide; that he was entitled to make the defence of excusable homicide, and was guilty at the worst of only manslaughter in unlawfully and wilfully shooting, but without malice. The court • deemed it its duty to charge upon the question of justifiable homicide, and in doing so to consider and explain two propositions, one where the danger to life, was actual at the time of the killing and the party could not escape from that danger by the exercise of reasonable means, and the other, where the danger might not have really existed at all, but where the appearance of danger was such as would induce a reasonable man to believe that the danger existed. But these two propositions .were accompanied by certain observations which form the subject of the exception under consideration. The court said:
“ Now, what is justifiable homicide ? When can a man slay another? When, can he.sit as a judge passing upon the law, vand a jury passing on the facts, and then as a jury applying the law to those facts, and finding a verdict, and then acting again as a court and entering up judgment, and then going ■ out as a marshal or sheriff and executing that judgment, all at the same time, determining the law, determining the facts, as a judge, jury, and executioner all at the same time ? This is a mighty power in the hands of the citizen. It is a mighty' power, yet it is to be applied when it belongs to him because it is the law of necessity, and it is given to him because it is the law of necessity; it is given to hiiii because at the time he executes it in a deadly way his own life is either actually or really in deadly peril from which he cannot escape except by the use' of that deadly means', or, 'in your judgment, taking [561]*561into consideration his condition, there was reasonable ground to believe there was peril.”
' It will be perceived that the jury are thus told that he who contends that he slew another-to protect his own life froin deadly peril, or because he .believed his life in immediate danger,' must be regarded as exercising the deliberation of a judge in passing upon the law and of a jury in passing upon the facts, in arriving at a determination as to the existence of the danger and the necessity of using the particular, means .to avert it, and, having arrived at the conclusion that the taking of life is required, as .proceeding to do so as an officer- does who is charged by law with the execution of that solemn duty. And inasmuch as the question in such cases frequently is, not only whether there was actually imminent peril to the slayer’s life, but whether he entertained an honest belief to that effect upon reasonable grounds, and also'whether the killing was in hot blood and attributable to the infirmity ■ of -human nature rather than to malice aforethought,. the views announced by the learned judge would be applicable to manslaughter as well as excusable homicide, the distinction between which is often extremely close.
In this we are of opinion there was error. To direct the attention of the jury to the contemplation of the philosophy of- the mental operations, upon which justification or excuse or iñitigation in. the taking of human life may be predicated, is. to hazard the substitution of abstract conceptions for the actual facts of the particular case as they appeared to the defendant at the time.
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Mr. Chibs' Justice Fuller,
after stating the cáse, delivered the opinion of the court.
The rule of the common law was that one under the age of seven years could not be guilty of felony or punished for any capital offence, for within that age the infant was conclusively presumed to be incapable of committing' the crime; and that while between the ages of seven and fourteen the same presumption obtained, it was only prima faeie and rebuttable. The maxim — malice supplies the want of maturity of years — was then applied and, upon satisfactory'evidence of capacity, the child within these ages might- be punished; but no presumption existed in favor of the accused when above fourteen.
The' age of irresponsibility has been changed in many of the States by statute, and among others, in Arkansas, where it is provided that “ An infant under twelve years of age shall not be found guilty of any crime or misdemeanor,” Ark. Stat. Dig. 1884, 425, c. 45, § 1498, it being held, however, that the common law presumption that a person between the ages of twelve and fourteen is incapable of discerning good from evil, until the contrary is affirmatively shown, still prevails. Dove v. State, 37 Arkansas, 261.
In the case at bar, the defendant testified on the trial, February 13, 1893, that he would be fifteen years old the coming March, and, if this were so, he was fourteen in March, 1892, [559]*559and, as the homicide was committed on May 14 .of that year, he was at that time some two months older than fourteen years. There seems to have been- no controversy over his age, and as to whether his appearance was that of a boy less than fourteen, we have, of course, no means of knowledge. The court was not, so far as this record shows, requested to charge in reference to-the age of accountability, and it may be, as suggested, that the matter was adverted to out of consideration for the accused,.because immediately after the statement on this subject the learned judge goes on to say that defendant could not be found guilty of any crime unless the jury were satisfied from the whole of the testimony and from the law given to them “that the state of the case which makes the crime is established beyond a reasonable doubt.” But' this he was bound to charge in any aspect, and the difficulty here is that through some inadvertence the prima facie presumption as to lack of accountability was declared to terminate at eleven years instead of fourteen. And while' it is properly argued by counsel for the government that this was not an error injurious to the defendant, because on his own statement he had passed the age of fourteen, yet we are not altogether- satisfied that the result was not prejudicial. Where -the question is whether the homicide was. or was not done with malice, wrongfully, intentionally, and without just cause or excuse, it would seem proper that-the attention of the jury should be called to .the youthfulness of the offender, if the circumstances rendered that fact significant; and since in this case the presumption of the lack of accountability had obtained until within two months of ‘the homicide, if the defendant’s own statement as to his age is to be accepted, an instruction which treated him as having been under the weight of full accountability three years longer than was the fact, may have tended to weaken the effect upon the minds of the jurors which his youth might have otherwise had, and to which the humanity of the law regards him as entitled. The burden of proving legal capacity, as of other facts necessary to make out the defendant’s guilt, was upon the government; and although the presumption from the defendant’s age may have been such as [560]*560to sustain that burden, yet, as the court charged in relation to the age of accountability, we are not persuaded that the consequences of want of accuracy ought to be assumed to have been harmless.
. We do not care,.however, to dispose of the case upon.this ground, as another and more serious exception was saved. The contention on the part of the accused was that there was no premeditation on his part; that he was engaged in a'fight in which he was struck and thrown down, and, in the heat of the struggle, committed the homicide; that he was entitled to make the defence of excusable homicide, and was guilty at the worst of only manslaughter in unlawfully and wilfully shooting, but without malice. The court • deemed it its duty to charge upon the question of justifiable homicide, and in doing so to consider and explain two propositions, one where the danger to life, was actual at the time of the killing and the party could not escape from that danger by the exercise of reasonable means, and the other, where the danger might not have really existed at all, but where the appearance of danger was such as would induce a reasonable man to believe that the danger existed. But these two propositions .were accompanied by certain observations which form the subject of the exception under consideration. The court said:
“ Now, what is justifiable homicide ? When can a man slay another? When, can he.sit as a judge passing upon the law, vand a jury passing on the facts, and then as a jury applying the law to those facts, and finding a verdict, and then acting again as a court and entering up judgment, and then going ■ out as a marshal or sheriff and executing that judgment, all at the same time, determining the law, determining the facts, as a judge, jury, and executioner all at the same time ? This is a mighty power in the hands of the citizen. It is a mighty' power, yet it is to be applied when it belongs to him because it is the law of necessity, and it is given to him because it is the law of necessity; it is given to hiiii because at the time he executes it in a deadly way his own life is either actually or really in deadly peril from which he cannot escape except by the use' of that deadly means', or, 'in your judgment, taking [561]*561into consideration his condition, there was reasonable ground to believe there was peril.”
' It will be perceived that the jury are thus told that he who contends that he slew another-to protect his own life froin deadly peril, or because he .believed his life in immediate danger,' must be regarded as exercising the deliberation of a judge in passing upon the law and of a jury in passing upon the facts, in arriving at a determination as to the existence of the danger and the necessity of using the particular, means .to avert it, and, having arrived at the conclusion that the taking of life is required, as .proceeding to do so as an officer- does who is charged by law with the execution of that solemn duty. And inasmuch as the question in such cases frequently is, not only whether there was actually imminent peril to the slayer’s life, but whether he entertained an honest belief to that effect upon reasonable grounds, and also'whether the killing was in hot blood and attributable to the infirmity ■ of -human nature rather than to malice aforethought,. the views announced by the learned judge would be applicable to manslaughter as well as excusable homicide, the distinction between which is often extremely close.
In this we are of opinion there was error. To direct the attention of the jury to the contemplation of the philosophy of- the mental operations, upon which justification or excuse or iñitigation in. the taking of human life may be predicated, is. to hazard the substitution of abstract conceptions for the actual facts of the particular case as they appeared to the defendant at the time.
While it may be psychologically true that in every sane act, with, whatever swiftness performed, there is involved the prior determination to do it, often inappreciably separated in time ; yet when the defence in a case of homicide is justification or excuse or action in hot blood, the question is one of fact and must be passed on by the jury in view of all the circumstances developed in evidence, uninfluenced by metaphysical considerations proceeding from the court. In view of such considerations a verdict might-be reached in harmony with the results of scholastic reasoning upon the .nature of things in general [562]*562apart from, the subject-matter, and yet be unjustified. by the case in the concrete which the,jury were impanelled to try.
, "We do not think that the doctrine is practicable which tests the question whether a defendant exceeded the limits of self-defence or acted in the heat of passion by the deliberation with which a judge expounds the law to a jury or a jury deterinines the facts, or with which judgment is entered and carried into execution.
This exception is fatal to the verdict, and the judgment must be
-' Reversed cmd the cause remanded with a direction to grant . a new trial.