¶1delivered the opinion of the court.
¶2This is a conviction of rape, perpetrated upon a girl about twelve years old by a boy whose age, according to the evidence in the record, does not exceed fourteen or fifteen years, and by his father’s evidence, is less than fourteen years. The common law rule is, that the law presumes a boy under fourteen years cannot be guilty of this crime. . 2 Whar., sec. 1134; 1 Arch.', 997; 3 Greenl. Ev., sec. 215. And by some of the cases and text-books this presumption has been held conclusive. By others it has been held that this presumption may be rebutí ed; and this last rule we think the sounder one, for it is hardly reasonable to establish or adhere to an arbitrary date which will hold a party guiltless one day and guilty *353the next of. the same offense, which would be the case if we were to hold a person incapable of committing crime the day before he became fourteen years old, and yet liable to all its penalties the next day, without any perceptible change physically or mentally or otherwise in the offender. It is perhaps giving to one doli eapax all that he is entitled to by allowing him the benefit of the presumption that he is incapable of committing this particular crime while under the age of fourteen years, leaving the onus upon the State of removing this presumption by satisfactory proof. The judge of the criminal court charged in conformity to this view, and we approve his charge as correct.
¶3There is no controversy as to the perpetration of the offense. The girl testifies to the fact of penetration, and the boy himself admitted that he had accomplished his purpose. He resorted, while in the act, to the usual practices of older offenders in such cases, of choking and threatening to kill, to prevent an outcry, and fled immediately, and was captured some fifteen miles from the scene of the outrage.
¶4We are of opinion that the evidence in this case was sufficient to justify the jury in finding that the legal presumption of incapacity to commit the crime was rebutted.
¶5The judgment will be affirmed.