Linhart v. State

Appellant was convicted of burglary, and sent to the reformatory. He sought to continue the case for Pete Cook, Grigsby, and Jackson. Cook was indicted for the same offense, and therefore was not a competent witness. Grigsby, the court says, was then in the reformatory, as he was reliably informed, under a felony conviction. Viewed in the light of the evidence adduced on the trial, the alleged testimony of Jackson is not probably true. By him he expected to prove, that during a conversation had with the witness, appellant ascertained, just prior to the burglary, that Pete Cook was then, at that time, at the house burglarized, with intent of entering it, and that appellant stated he would go after and try and bring him away, and prevent a violation of the law. Newberry, the deputy who was on the inside of, and was watching, the house, testified: That about 10 o'clock at night he heard a noise at the back door. That shortly it opened. Pete Cook entered and filled his pockets and a paper sack with goods. Appellant several times came to the door, and called to Cook to "Hurry up." The last time he did so he put his head around the door where the officer was standing, and was arrested, and both boys were then conveyed to jail. This witness further stated: "I could not say whether Pete Cook and defendant came to the door together. Just before Cook entered the door I could hear two voices at the door, but could not say what they were saying, or who they were. Pete had to go to the front of the house to get the goods. Defendant pushed the door open and put his head around the door, and said, 'Hurry up, Pete;' and while Pete was getting the goods he repeated that remark several times. After I arrested them, they told me where they had some goods they had gotten before. I did not find the other goods." There had been previous entries of the house, and goods taken at each entry. The officer was watching for the burglars at the time defendant and Cook were arrested. If the absent testimony was admissible in appellant's behalf, its probable truth is excluded by the evidence introduced by the prosecution.

It was proved for appellant that he was born between 12 and 2, at night, on the morning of October 27, 1880, and that he had been taught to regard October 26th as his birthday. It was also proved that the house was burglarized at 10 o'clock at night, October 26, 1893. It is insisted that, under the evidence, appellant was between the ages of 9 and 13 years at the time of the burglary, and therefore the burden of proof was on the State to show appellant "had discretion sufficient to understand the nature and illegality of the act constituting the offense." Penal Code, art. 34. If appellant was under 13 years of age at the time the offense was committed, the contention is sound, and the court erred in refusing to give special instructions requested by appellant. If he had passed or reached that age, then the statute does not apply. The statute has fixed the age for the purpose indicated, and there is no question of legislative authority to do so. But the position is not well taken. He was 13 years of age the day before the anniversary of his birthday. Such is the view expressed in all the authorities accessible. Speaking of the time when a person becomes of the age of 21 years, the Delaware Supreme Court, speaking through Chief Justice Bayard, said: "A person is of the age of 21 years the day before the twenty-first anniversary of his birthday. It is not necessary that he shall have entered upon his birthday, or he would be more than 21 years old. He is therefore of the age the day before the anniversary of his birth; and, as the law takes no notice of fractions of a day, he is necessarily of age the whole of the day before his twenty-first birthday, and upon any and every moment of that day may do any act which any man may lawfully do. 1 Chit. Gen. Pr., 766. It is to be observed that a person becomes of age on the first instant of the last day of the twenty-first year next before the anniversary of his birth. Thus, if a person were born at any hour of the 1st day of January, A. D. 1801 (even a few moments before 12 o'clock at night of that day), he would be of full age at the first instant of the 31st of December, 1821, although nearly forty-eight hours before he had actually attained the full age of 21, according to years, days, hours, and minutes, because there is not, in law, in this respect, any fraction of a day, and it is the same whether a thing is done upon one moment of the day or another." The State v. Clarke, 3 Har. (Del.), 557. See also Ross v. Morrow, 85 Tex. 172; Hamlin v. Stevensony 4 Dana, 597; Wells v. Wells, 6 Ind. 447; 1 Blacks. Comm., 164. Under the evidence adduced it is clear that appellant was 13 years of age at the time the crime was committed.

Ownership of the property and possession of the house were alleged to be in A.H. Cleveland. The testimony disclosed that he held the goods as sheriff under writ of attachment; and the house by virtue of rental contract — the rent being paid out of the proceeds of the goods levied upon. This constituted him special owner, and the indictment correctly laid the ownership and possession in him. It was not necessary to describe Cleveland, in the indictment, as sheriff of the county, or set out the facts constituting him owner of the goods. General allegations were sufficient.

Newberry, deputy sheriff, placed in the house for the purpose of detecting the burglars upon the night in question, was not such special owner as required ownership to be alleged in him. He was simply placed in the house to detect the parties who had been breaking into it. This was the extent of the authority vested in him. There is no evidence showing he had any other character of possession of the property.

The judgment is affirmed.

Affirmed.

Judges all present and concurring.