¶1Tbe opinion of tbe court was delivered by
¶2Tbe exception is to tbe omission of tbe court to charge as requested, and not to tbe charge as given. Though a cobsiderable part of tbe charge was not called for by the state of tbe evidence, and may be regarded as harmless surplusage, still that part of it applicable to, and elicited by, tbe evidence, seems to us to be correct in principle and application. We have only, then, to consider whether the. court should have complied with tbe respondent’s requests.
¶3Tbe subject of duress was to be submitted to tbe jury upon tbe whole evidence bearing upon it, and not to be determined as matter of law, either upon tbe whole or certain excepted portions of tbe evidence. Whether tbe presence and acts of tbe girl could be referred to tbe alleged duress, would depend upon tbe character, in what it consisted, under what circumstances it was exercised, and was altogether a question to be settled by tbe jury. Tbe court could not properly tell them, as matter of law, even upon tbe facts assumed in tbe hypothesis of tbe request, that her presence and acts “ can not be referred to the duress of tbe respondent for, whether by duress, or not, would still depend on the character of “ the direction,” as constituting control and compul-sión by her father, in distinction from tbe influence of “ tbe responsible persons who were actually present with her committing-the crime.”
¶4The request not being warranted in this respect, tbe residue of it would seem to fail also ; for if, in fact, she acted by tbe com*589pulsion of her father, by his duress, it would hardly be claimed with a grave countenance that he was not to be charged as -principal, the same as if he had been personally present doing the-same things that his girl did by force of his duress.
¶5The same character of remark seems appropriate to the second request. Capacity for crime in persons above the age of seven years is, in the last analysis, always a question of fact. As the result of observation and experience, the law assumes, prima facie, that persons above fourteen years of age are capable of crime, but subjects that assumption to the effect of proof as to the real fact. The intermediate period is called by Mr. Blackstone “the dubious stage of discretion.” In reference to capacity during this period the law makes no presumption, but leaves it to be determined by the jury upon the evidence. The law has never undertaken to .say that any defined physical dimensions or strength, and being “ ordinarily intelligent, and working away from home for wages,” constitute the capacity for crime, or the criterion of such capacity. Such facts would be pertinent as tending to show the existence of such capacity. Some of those facts are quite indefinite in their significance as bearing upon the question of capacity, either mental or moral, and proper rather for the consideration of a jury than the ground and subject of a specific and definitive legal result.
¶6But it is to be noticed that the evidence only tended to show that the girl was within that “ dubious stage” wherein the law makes no presumption, but submits the subject to the finding of the jury upon the evidence.
¶7As no error is foimd in the matters to which exception was taken, said exceptions are overruled, and the judgment of the county court is affirmed.