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But though above fourteen, criminal incapacity cannot be presumed on the mere pretence of nonage, children considerably under that age may be found doli capaces, and be tried, and even executed accordingly, whenever from peculiar evidence it shall appear that by precocity in vice or intellect they can clearly distinguish right from wrong, malitia supplet ætatem: thus John Dean was executed under the age of nine for arson and murder; and William York, in more modern times, was tried and condemned for murder at ten.[1] Seven years of age, or the period*
- ↑ At Bury assizes 1748, William York, a boy of ten years of age, was convicted before Lord Chief Justice Willes for the murder of a girl of about five years of age, and received sentence of death: but the Chief-Justice, out of regard to the tender years of the prisoner, respited execution, till he should have an opportunity of taking the opinion of the rest of the judges, whether it was proper to execute him or not, upon the special circumstances of the case, which he reported to the judges at Serjeant's-inn in Michaelmas term following. The boy and girl were parish children, put under the care of a parishioner, at whose house they were lodged and maintained; on the day the murder happened, the man of the house and his wife went out to their work early in the morning, and left the children in bed together; when they returned from work, the girl was missing; and the boy being asked what was become of her, answered that he had helped her up and put on her cloaths, and that she was gone he knew not whither. Upon this, strict search was made in the ditches and pools of water near the house, from an apprehension that the child might have fallen into the water. During this search, the man, under whose care the children were, observed, that a heap of dung near the house had been newly turned up; and upon removing the upper part of the heap, he found the body of the child about a foot's depth under the surface, cut and mangled in a most barbarous and horrid manner. Upon this discovery, the boy, who was the only person capable of committing the fact that was left at home with the child, was charged with the fact, which he stiffly denied. When the coroner's jury met, the boy was again charged, but persisted still to deny the fact. At length, being closely interrogated, he fell to crying, and said he would tell the whole truth. He then said,
