Keith v. State , 33 Tex. Crim. 341 ( 1894 )

Appellant was convicted of burglary, and awarded two years in the State reformatory.

Several matters are urged as causes for reversal. The appellant being under 13 years of age, it was incumbent on the State to prove, "that he had discretion sufficient to understand the nature and illegality of the act constituting the offense." Penal Code, art. 34. It is not sufficient that the accused knew the difference between good and evil, or that he was possessed of the intelligence of ordinary boys of his age. Parker v. The State, 20 Texas. App., 451; Carr v. The State, 24 Texas Crim. App., 562. It must be shown that he had sufficient discretion to understand the nature and illegality of the particular act constituting the crime. Carr v. The State, 24 Texas Crim. App., 562. Appellant's confession was proved, in which he detailed the manner of entering the house through a window. When he was found sleeping in Swafford's barn, he ran, and escaped through a window. Swafford found some canned goods and crackers where appellant and the two Ruckers had slept, and carried them down on the street. Appellant, as soon as he saw Swafford with the goods, at once claimed them, and was refused possession unless he should tell where he obtained the goods, which he did at once. He also carried Swafford to the storehouse, and explained to him how the Ruckers entered the house; stating also that he too would have entered, but couldn't pass between the iron bars fastened across the window. These facts explained the flight of appellant from the barn, on the theory that he was afraid of Swafford; and his voluntarily approaching Swafford and claiming the goods, afterwards, certainly does not show that he understood the nature and illegality of the act of entering the store and taking the goods. His mother testified: "I taught him it was wrong to steal. I belong to the church, and have always taught the defendant to do right. He has gone to school, and attends church. * * *" She further stated that defendant was the dullest of her children. We do not think the evidence supports the verdict. It should be shown that the accused has sufficient discretion to understand the nature and illegality of the crime for which he was convicted, or with which he is charged, as required by the statute.

The judgment is reversed and cause remanded.

Reversed and remanded.

Judges all present and concurring.