Virginian-pilot. (Norfolk, Va.) 1898-1911, 1899-12-06

DENIES INFL1CTING THE IN
JURY. BUT THE EVIDENCE
SHOWS THE CONTRARY. AND
THERE is NO PROPAGATION FOR
THE ACT, THERE IS NO ELE-
MENT OF MANSLAUGHTER IN
THE CASE, BUT IT IS MURDER
WHEN AN INFANT, CAPABLE OF
COMMITTING A CRIME.
Cora Hicks was convicted of murder
in the second degree and appealed.
Tho facts appear from the opinion OF
the Court.
The Court says:
The defendant, child of IL years OF
age, according to the testimony of one
witness. and of H. according to the
Testimony of another, was convicted OF
murder in the second degree. The de-
ceased was All infant just beginning to
walk, and was being nursed by de-
PENDANT.
The principal evidence upon which
the defendant Mas convicted WAS the
testimony of Sally Leathers as follows:
Was there when the body was burn
ed. 1t was after ~ m. Cora took body
by the heels and had legs between her
legs, holding 1t more on one side than
the other and sat it in some hot ashes,
where they had been cooking trsh cakes.
Baby screamed. She then slmacked IL on
the jaws. Laid baby on the foot or the
bed. Got some soda, and rubbed It on.
She said she did it to scare it, but
didn't go to burn 1t. Baby had on a
diaper when she came over that morn
ing, but not when put on the ashes.
Cora took 1t off just before burning
baby. She pulled the clothes behind the
baby; didn't let them burn" The de-
PENDANT, as a witness In her own be-
half, denied that she burnt the child.
and said she did not know how the
burning occurred.
1t is unnecessary to discuss the first
exception. further than to say that,
ever If his honor was In error in re-
fusing to charge the jury, at the re-
quest of defendants counsel, THAT there
was no evidence of murder in the first
degree (Which we do not pass upon),
no harm was done, for the jury return
ed a verdict of murder in the second
degree. There was no element Of man.
slaughter In the case, and the court
properly refused to submit q hypothet-
ical view Of manslaughter to the con-
sidcratIon of the jury. This view of the
case disposes of all OF the defendants
exceptions based upon his honor's re-
fusal to submit the question of man
slaughter to the jury.
On the matter of the presumption OF
incapacity to commit crime in favor OF
infants, the court instructed the jury
that an infant under Z years of age
could not be shown, even upon the
clearest evidence, to entertain a GRIM
iral intention, but that IL the age of
z had been reached, the State could
prove that such person was of suffl-
cient capacity to entertain a criminal
intention. In the same connection. he
further said: This presumption of in
capacity to commit crime may be re-
butted by clear and strong evidence
OF mischevous discretion,-a discre-
ton to discern between good and evil,
or by proof that she (defendant)
knew the act was wrong, and that she
had knowledge OF good and evil. and
of the peril and danger of the offense
and the fact Of guilty knowledge must
be distinctly made out. If she under
stands the nature and consequences OF
her acts. and the act indicates intelli-
gent design and malice, she may be
convicted" 1t might have been better
If his honor had instructed the jury
that they should be fully satisfied
that the defendant was doll capax. OF
that they should be satisfied "beyond
a reasonable doubt" of her capacity tc
entertain a criminal intention; but we
are not prepared to say that his hon.
or's charge was erroneous. Affirmed.