State v. Milholland ( 1893 )

Given, J.

The evidence shows without conflict that on the day named the defendant, then over thirteen years of age, the deceased, aged ten, and another ten year old boy named Rudolph, went to bathe in a slough or pond of water. They went upon a lumber raft, where the defendant and the deceased undressed, and went into the water, the deceased holding to the raft, and the defendant swimming around. After the defendant had been in the water he returned to the raft, where the deceased was, and seized and threw him into the water, so that he sank, and was drowned. When the defendant caught hold of the deceased to throw him in the water, the deceased resisted by catching hold of some shingles, and called to let go, and not to throw him in. “Milholland grabbed his hands loose, and pnt one hand round his back, the other hand round his legs, and threw him in.” When the defendant saw that deceased did not rise to the surface he said “Poor little fellow; poor little boy; poor little Frankie;” and called to other boys near by, to know if they could dive. There is no evidence that the defendant was actuated by anger or ill will. The boys were friends, and acted in the most friendly way towards each other up to the moment that the defendant seized the deceased to throw him in the water. The only conflict in the evidence is this: The boy Rudolph testifies that immediately after this happened the defendant said he would give him five dollars, would treat every time he had money, and would let no one in the hollow hit him if he would not tell. The defendant, in his testimony, denies that he said these things on the raft, but says it was about a month after that he offered him five dollars. The defendant testifies that on the way to the raft the deceased told him that he could swim. Rudolph states that he said he could swim a little. Mrs. Milholland, mother of the defendant, testifies that he would be fourteen years old on December 12, 1892. These are in substance the facts upon which the case was submitted to the jury, and we state them thus fully, that the single question presented on this appeal may be better understood.

I. No instructions were asked by either party. The court, upon its own motion, gave the following instruction, with others: “In determining the guilt or innocence of the defendant, you may consider his age, and all facts and circumstances which are in evidence or arise from the evidence.” No other instruction was asked or given with reference to the age of the defendant. The appellant does not complain of this instruction so far as it goes. His contention is that under the law a person under fourteen years of age can not be convicted of a crime, unless the state shows that he possessed sufficient capacity to understand the nature of a crime; that it is the duty of the court to instruct fully on the law of the case, and that the court erred in not giving the law fully to the jury. Counsel for the appellee, without questioning the appellant’s statement of the law, contend that, as applied to the facts, the instruction was sufficiently full and explicit, and that the facts fully show that the defendant had sufficient capacity to render him criminally liable for the act charged. While the instruction might properly have been more full and explicit, yet, in view of the emphasis given to the matter of the defendant’s age, it must have been understood as presenting the question of his accountability. Discussion is unnecessary to show that the jury were fully warranted in finding that the defendant had sufficient capacity to be held criminally liable for his acts in causing the death of Francis Mulqueeny.

The judgment of the district court is affirmed.