¶1(after stating the facts.) The court is of the opinion that the testimony in the case fails to show that the defendant was amenable to the law for uttering a forged instrument, as he was, as shown by the evidence, only of the age of thirteen years, and there was no evidence that he had sufficient intelligence to know right from wrong in relation to the offense with which he was charged. “An infant under 12 years of age shall not be found guilty of any crime or misdemeanor.” Sand. & H. Dig., §_ 4442.
¶2The law presumed that a boy thirteen years of age is incapable of committing a crime, and it devolved on the state to show that he had mental capacity and intelligence enough to know right fromj wrong in reference to the offense with which he was charged. In this the state failed, and the presumption of his incapacity, in the absence of such proof, must prevail. In Dove v. State, 37 Ark. 261, it is said that “when the accused is between the ages of 12 and 14, the common law presumption still prevails that he or she is not doli capax, or capable of discerning between good and evil, until the contrary is affirmatively shown by the evidence. No witness was examined as to the intelligence of appellant, or as to his knowledge of right and wrong, good and evil.”
¶3The defendant was charged with uttering a forged instrument, which instrument is shown to have been signed “Campbell.” The proof in the case shows that the appellant was generally known as Campbell. It therefore appears that the instrument was not forged, but was simply an instrument — check or draft — drawn by appellant on the bank, and signed by him by a name by which he was generally known, and was not paid by the bank, which owed him nothing, and with which he had no funds on deposit. This was not forgery.
¶4Reversed and remanded for a new trial.