The record-union., 1895-10-10
TOO YOUNG FOR TRIAL FOR CRIME.
Little Roy Gould, the Boy Incendiary,
Set Free.
District Attorney Ryan So Advised
Habeas Corpus Writ Heard
by Two Judges.

The case of the boy Roy Gould. on ha-
bsas corpus, came before Judge Hinkson
yesterday forenoon. The Judge invited
Judge johnson to sit with him in the hear
ing of the application for the discharge OF
she boy, who was held to answer for arson
by the committing magistrate, for setting
fire to the hay lofts of Smith on Seventh
street. and of Campbell on L street, few
weeks ago.
w. A. Anderson appeared for the APP
plicant, the father of the child. The
Sheriff made return showing that he
held the lad by virtue OF the process OF
the Police Court Mr.. Anderson made
these points:
First-It appears by the record that the
boy is but years and nine months OLD,
and is therefore not amenable to the law
under Section 26 of the Penal Code, when
reads: "All persons are capable OF COM
hitting crimes except those belonging TO
the following classes: Children under IA,
in the absence of clear proof that at the
time of committing the act charged
against them they knew It's wrongful
ness" etc.
Second-Under the common law, which
has not been abrogated by the California
statutes, person under Z years OF age is
incapable of committing crime. mar
ton on Evidence and w hartons CrlulinaI
Law were read from to show that THIS Is
the law in all civilized countries, and has
been from time immemorial.
Third-The record disclosed 1ncapaclty
on the part of the prisoner to commit the
crime of arson, because his acts reveal
that he is not conscious of the enormlty OF
the crime laid at his door. He attempted
Ii, II is,h hi nQ1 hlRh
would have taken bodily harm. But IL
was done at the suggestion OF others III
the cell with him. He repeated TO the Chief
Engineer the process he employed 10
kindle The Seventh and the l. street nres,
appearing not to realize the enormlty OF
what he had done.
Fourth-Counsel offered as ''profferT
the child himself. The court could see
that it is q child not yet Z, and not hard
ened, cunning, nor deceptive.
EiIth-It Is not III clear proof that the
child at the time of the act knew lis
wrongfulness, therefore under Section 70
OF the Penal Code the defendant should
not be held. The burden is on the people
to show by clear proof" that the prisoner
knew of the wrongfulness Of the act.
Sixth-The Legislature prohibits COM
mitment of children to W Eittler or lone
under the age OF s. This is legislative in
depreciation, or adoption of the common
law, that one under is incapable of COM
hitting crime.
District Attorney Ryan said he had ex-
amined into the case diligently, and had
reached the conclusion that the boy
should not be held. He believed the law
to be that one under years of age could
not be held except there is clear proof,
etc., but the common law, also, seemed 10
be as claimed by the petitioner. The case
presented difficulties 10 his mind, and he
was troubled TO know what ought to be
done with the boy, but he was satisfied
that no conviction could be had, and
hence it would be impossible for him to
resist the application for discharge.
Judge Hinkson said it would be a ira
vesty on justice to put such child on
trial lie then called the father of the
boy to the stand aud examined him at
some length. The father said the boy
was not abnormal in boyish traits; that
lie was easily influenced, but had not
been difficult to govern. When mere
infant he had clambered up out of bed
and got match and scratched il on the
wall, and il fell into the pillow and ig
nited it and mattress. Beyond that he
had no knowledge OF the boy having
proclivity for kindling fires. He tried TO
keep him at nome, as also did his wife;
but like other boys of his age he played
with other children, and sometimes ran
away from home, or, rather, wandered
away lD6T0 udu O60u TWO l1bkI0 DOJ6
whom his son had played with that he
had been told were bad boys, but they
had moved away now.
lie had sent the boy to school at Fourth
and q streets last summer, but the lad
appeared dull in school and moping and
would not answer questions. The teacher
punished him because of inatteniion
The father was convinced that the boy
was not old enough for the school; at
least, that punishment would not make
him study or answer, and so he took
him out, intending to return him TO
school this fall.
The witness did not know of the boy
using oaths but once. That was in the
jail, since his arrest, when an officer an
noyed him, and Roy swore at the man
twice. The father then and there pun
lshed him Tor IL.
At this point the Judges adjourned the
hearing until 1870 p. NJ, and allowed the
child to go with his father, but took both
into cham bers to examine the child in
private.
When the court was opened in the after
noon Judge Hinkson said he did not
think IL was necessary to pass on the
point raised by counsel that Section 26
could be construed that under the COM
mon law so young child could not he
punished for the crime committed. The
provision Of Section 70 WAS that a child
under II years of age could not be pun
ished in the absence OF clear proof of in
tention TO commit a crime.
BE had examined the testimony OF tbs
father and had taken the child into HE
Office and questioned him. lie found him
disposed TO resent what he considered
bad treatment, and that it was apt 10 rem
der him Vindictiye. There was nothing
in the record to show what caused him to
act as he did in the City Prison, but the
court had heard on the outside that the
intention of the officer was 10 put him in
a cell by himself, and that tended to bring
out the worst elements OF his character.
The question, however, was: Did the
child realize the magnitude OF his crime in
setting the fires? lie had questioned the
boy and found him intelligent in some
things and dull in others. lie did not
seem to realize what he had done. 1t is
usual In sucn case to try To- escape pun
ishment, but Ia his simplicity The child
did not seem to have any idea of doing So
He had, he said, read the testimony of
Chief Engineer Guthrie as to the child's
showing him how be set the fires, and 1t
was strong evidence of the child's in
competency TO commit q crime. 4 con-
sciousness of its magnitude would have
induced him to hide il. The testimony
seemed to establish the child's ire
sponsibility, and for court of Justice TO
try him and inprison him for this crime
would seem absurd and harsh. Ii was
therefore, the order of the court that he
be discharged.