¶1delivered the opinion of the court.
¶2The appellant, William Miles, was indicted for assault and battery with intent to kill and murder. There were two trials. On the first trial he was convicted of an assault and battery. A new trial was granted, and on the second trial he was convicted of an assault, and appeals to this court.
¶3The appellant, who was at the time of the alleged crime over seven and under fourteen years of age, struck Nathaniel Harley with a stick, inflicting a serious wound on the head. There is no evidence whatever as to whether appellant was mentally capable of distinguishing between right and wrong. It is contended that for this reason the court below should have granted a new trial; one ground of the motion being that there was not sufficient evidence to support the verdict of the jury.
¶4Criminal intent is an essential element of crime. An infant under the age of seven years is by law conclusively presumed to be incapable of distinguishing between right and wrong — incapable of entertaining criminal intent. At such tender age, the infant is conclusively presumed not to have sufficient mental perception to distinguish between the evil and the good. An infant between the ages of seven and fourteen is prima facie presumed to be incapable of entertaining criminal intent; but this prima facie incapacity to commit crime may be overcome by proof that the infant is in fact mentally capable of distinguishing between right and wrong.
¶5*170The burden of showing this rests upon the state, and, if it is not shown, no crime is shown, and an acquittal must result. Beason v. State, 50 South. 488; Joslin v. State, 75 Miss. 838, 23 South. 515. The court below should have granted a new trial on the ground the evidence failed to show that appellant was capable of committing crime.
¶6The appellant offered to prove by the witness Henry Lyons that, a few days before the alleged crime, the witness Nathaniel Harley, alleged to have been assaulted by appellant, stated to him that the first chance he got he was going to knock appellant’s brains out with a brick; and appellant offered to testify that shortly before the alleged crime Nathaniel Harley told him that his (Nathaniel’s) mother had told him the next time he got appellant away from home, to knock his brains out with a brickbat. This testimony was objected to by the state., and by the court ruled out; appellant excepting to the ruling of the court. This action of the court is assigned as error. The evidence is conflicting as to who was the aggressor in the difficulty. In this state of case, the proposed evidence of threats, whether communicated or not, was clearly competent, for the purpose of throwing light on the question as to who was the aggressor in the difficulty — whether the blow struck by appellant was in self-defense, as he claims. Prince v. State, 73 Miss. 838, 19 South. 711; Bell v. State, 66 Miss. 192, 5 South. 389.
¶7We pass on none of the other errors assigned, because, if well founded, they are such as will probably not occur on another trial.
¶8Reversed and remanded.