of incapacity ceases. Court of Appeals, June 4, 1889, Stone v. Dry Dock, etc., 115 N. Y. 109; 23 St. Rep. 551. On a criminal charge against an infant between the years of seven and twelve, the burden is on the prosecutor to show that the child has intelligence and maturity of judgment sufficient to render him capable of harboring a criminal intent. Court of Appeals, June 4, 1889, Stone v. Dry Dock, etc., 115 N. Y. 109; 23 St. Rep. 551. A jury has the right to determine from personal inspection, the age of a child at the time an offense is alleged to have been committed. General Sessions, New York County, May, 1886, People v. Stott, 4 N. Y. Cr. 308; Supreme Court, May, 1885, People v. Platt, 3 N. Y. Cr. 137. The latter case was reversed in 100 N. Y. 590, but upon another point. See also Supreme Court, May 13, 1887, People v. Sheppard, 9 St. Rep. 34; 44 Hun, 565; 5 N. Y. Cr. 136. § 20. Irresponsibilty of idiot, lunatic, etc.-An act done by a person who is an idiot, imbecile, lunatic or insane is not a crime. A person cannot be tried, sentenced to any punishment, or punished for a crime while he is in a state of idiocy, imbecility, lunacy or insanity so as to be incapable of understanding the proceeding or making his defense. (As amended by chapter 384 of the Laws of 1882.) The law presumes sanity in all cases. New York County Court, Oyer and Terminer, December, 1881, People v. Coleman, 1 N. Y. Cr. 5. The burden of overthrowing the presumption of sanity is upon the person who alleges the insanity. Id. An insane man frequently deliberates, and after the most mature deliberation commits acts which, but for his insanity, would be crimes. Court of Appeals, April, 1891, People v. Wood, 126 N. Y. 267; 36 St. Rep. 863. The question always is, not did the party deliberate, but was he at the time insane within the legal definition of that term. Id. An insane person cannot be lawfully punished for an act which was committed by him while in a state of insanity, or when he has becòme insane during or after a trial or conviction. Court of Appeals, February 24, 1891, People v. McElvaine, 125 N. Y. 600; 36 St. Rep. 181. An insane person is incapable of crime. New York County Court, Oyer and Terminer, December, 1881, People v. Coleman, 1 N. Y. Cr. 2. A lunatic is not criminally liable for his unlawful acts. Supreme Court, October, 1892, d'Autremont v. Fire Association, 48 St. Rep. 43; 65 Hun, 477; 20 N. Y. Supp. 345. But he is responsible civilly for any tort committed by him where a wrongful intent is not an essential thing to be proved. Id. The species of insanity, called by some moral insanity, constitutes no defense for the commission of crime. Court of Appeals, April, 1891, People r. Wood, 126 N. Y. 268; 36 St. Rep. 963. In a defense that the homicide was the unconscious and uncontrollable result of epileptic furor, the absence of motive is important, as bearing upon the issue so presented. Court of Appeals, October, 1889, People v. Barber, 115 N. Y. 475; 25 St. Rep. 184. The doctrine that a criminal act may be excused upon the motion of an irresistible impulse to commit it, where the offender has the ability to discover his legal and moral duty in respect to it, has no place in the law. Court of Appeals, October, 1881, Flanagan v. People, 52 N. Y. 467; Court of Appeals, April 13, 1886, People v. Carpenter, 1 St. Rep. 642; 102 id. 250; 4 N. Y. Cr. 187; Oyer and Terminer, New York County, July, 1873, People v. Walworth, id. 395; Court of Appeals, June, 1865, Willis v. People, 32 N. Y. 717; Court of Appeals, May, 1881, Moett v. People, 85 id. 379; New York County Court Oyer and Terminer, December, 1881, People v. Coleman, 1 N. Y. Cr. 3. When it is said that a prisoner must, at the time of the alleged criminal act, have sufficient capacity to distinguish between right and wrong with respect to such act, it is implied that he must have sufficient capacity to know whether such act is violation of the law of God, or of the land, or of both. Court of Appeals, May, 1881, Moett v. People, 85 N. Y. 380. The test of responsibility is the capacity to distinguish between right and wrong at the time the act was done, and in respect thereto. Supreme Court, December, 1883, People v. Casey, 2 N. Y. Cr. 190. (Reversed in 2 N. Y. Cr. 194; Court of Appeals, May, 1884, 96 N. Y. 115, but on other grounds.) The law does not find irresponsibility where the claim is that such capacity exists, without the power to choose between them. Id.; Court of Appeals, October, 1881, Flanigan v. People, 52 N. Y. 467. The test of responsibility for criminal acts, where insanity is asserted, is the capacity of the accused to distinguish between right and wrong at the time and with respect to the act which is the subject of inquiry. New York County Court, Oyer and Terminer, December, 1881, People v. Coleman, 1 N. Y. Cr. 2. The true test of criminal responsibility, where the defense of insanity is interposed, is, whether the accused had sufficient reason to know the nature and quality of his act, and whether he has sufficient reason to know right from wrong. Supreme Court, October, 1881, Walker v. People, 1 N. Y. Cr. 14. In order to sustain the defense of insanity, the evidence should be clear and substantial. Supreme Court, October, 1881, Walker v. People, 1 N. Y. Cr. 27. And if there is upon the whole evidence in the case any reasonable doubt, the accused is entitled to the benefit of that doubt and to an acquittal. Id. The report of the Commissioners under sections 636 to 662 of Criminal Code will not prevent the accused from having the question as to sanity passed upon by a jury on the trial of the indictment. Madison County Court of Oyer and Terminer, December, 1883, People v. Haight, 13 Abb. N. C. 198. See People v. Haight, 3 N. Y. Cr. 61; Court of General Sessions, New York County, October, 1884, People v. Rhinelander, 2 id. 340. 8 21. Irresponsibility, etc., of idiots, lunatics, etc.-A person is not excused from criminal liability as an idiot, imbecile, lunatic, or insane person, except upon proof that, at the time of comting the alleged criminal act, he was laboring under such a of reason, as either, or 1. Not to know the nature and quality of the act he was doing; 2. Not to know that the act was wrong. (As amended by chapter 384 of the Laws of 1882.) The rule now established excludes consideration of the question as to whether the accused possessed sufficient mental power to forbear the commission of an act which he clearly perceived to be criminal. Court of Appeals, June 6, 1893, People v. Taylor, 52 St. Rep. 920; 138 N. Y. 407. An insane delusion with reference to the conduct and attitude of another cannot excuse the criminal act of taking his life, unless it is of such a character, that if it had been true, it would have rendered the homicide excusable or justifiable. Court of Appeals, June 6, 1893, People v. Taylor, 52 St. Rep. 919; 138 N. Y. 406. Partial insanity, or incipient insanity, is not sufficient, if there is still the ability to perform a correct perception of the legal quality of the act and to know that it is wrong. Court of Appeals, June 6, 1893, People v. Taylor, 52 St. Rep. 919; 138 N. Y. 407. If, when a specific act is contemplated, he has the power to know whether it is wrong to do it and right to refrain from doing it, the law presumes that the person has also the power to choose between the right and wrong course of action, and will not permit either courts or juries to speculate as to its possible non-existence. Id. A desire for self-destruction and the adoption of means to secure it do not of themselves indicate a mental impairment which has advanced to the stage of irresponsibility, otherwise the law would not make the attempt to kill one's self a crime. Court of Appeals, June 6, 1893, People v. Taylor, 52 St. Rep. 920; 138 N. Y. 408. See 1 St. Rep. 648; Court of Appeals, April 13, 1886, People v. Carpenter, 102 N. Y. 250; 4 N. Y. Cr. 187; Madison County Court of Oyer, December, 1883, People v. Haight, 3 id. 61; 13 Abb. N. C. 198; Court of General Sessions, New York County, October, 1884, People v. Rhinelander, 2 N. Y. Cr. 340. $22. Intoxicated person.- No act committed by a person while in a state of voluntary intoxication, shall be deemed less criminal by reason of his having been in such condition. But whenever the actual existence of any particular purpose, motive or intent is a necessary element to constitute a particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive or intent with which he committed the act. The law expressly declares that voluntary intoxication, though furnishing no excuse for a criminal act, may be considered by the jury upon the questions of intent and of the degree of crime. Supreme Court, June, 1884, People v. Conroy, 2 N. Y. Cr. 248; 33 Hun, 121. It may also be considered upon the question of deliberation. Id. 43-VOL. 3 The jury have a right to consider the intoxicated condition of the accused. Supreme Court, September, 1883, People v. Cassiano, 30 Hun, 388; 1 N. Y. Cr. 505. Intoxication does not absolutely tend to show an absence of premeditation and deliberation. Court of Appeals, February, 1885, People v. Mills, 98 N. Y. 181; 3 N. Y. Cr. 187; 21 W. Dig. 137. This is a question for the jury to determine. Id. The only materiality of the evidence of the defendant's intoxication is its bearing upon the questions of deliberation, premeditation and intent. Court of Appeals, January 13, 1891, People v. Fish, 125 N. Y. 146; 8 N. Y. Cr. 136; 34 St. Rep. 843. If he was sober enough to form an intent and to deliberate and premeditate a crime, then his responsibility is the same as if he had been perfectly sober. Id. His condition in this respect must be taken into account in weighing the evidence as to meditation and deliberation. Court of Appeals, October, 1881, Flanigan v. People, 86 N. Y. 554. Id.; ABANDONMENT AND OTHER ACTS OF CRUELTY TO CHILDREN. Chapter III of Title X of the Penal Code. Section 287. Abandonment of child under fourteen years. 288. Unlawfully omitting to provide for child. 291. Children not to beg, etc. 292. Certain employment of a child. 292a. Penalty for sending messenger boys to certain places. 292b. Taking apprentice without consent of guardian. 293. Duty of officers of society. Section 287. Abandonment of child under fourteen years.-A parent, or other person having the care or custody, for nurture or education, of a child under the age of fourteen years, who deserts the child in any place, with intent wholly to abandon it, is punishable by imprisonment in a state prison for not more than seven years. (As amended by chapters 325 of the Laws of 1892, and 376 of 1903.) 8287a. Abandonment of children.-A parent or other person charged with the care or custody for nurture or education of a child under the age of sixteen years, who abandons the child in destitute circumstances and willfully omits to furnish necessary and proper food, clothing or shelter for such child is guilty of felony, punishable by imprisonment for not more than two years, or by a fine not to exceed one thousand dollars, or by both. In case a fine is imposed the same may be applied in the discretion of the court to the support of such child. Proof of the abandonment of such child in destitute circumstances and omission to furnish necessary and proper food, clothing or shelter is prima facie evidence that such omission is willful. The provisions of section seven hundred and fifteen of this code prohibiting the disclosure of confidential communications between husband and wife shall not apply to prosecutions for the offense here defined. A previous conviction or convictions of felony or misdemeanor shall not prevent the court from suspending sentence upon a conviction under this section, or from arbitrarily fixing the limit of imprisonment or fine, in case imprisonment or fine is imposed upon conviction herein. § 2. Nothing in this act contained shall be deemed or construed to repeal, amend, impair or in any manner affect the provisions of section two hundred and eighty-seven, two hundred and eightyeight or two hundred and eighty-nine of the penal code or any other existing provisions of law relating to abandonment or other acts of cruelty to children. (Added by chapter 168 of the Laws of 1905.) § 288. Omitting to provide for child. A person who, 1. Willfully omits, without lawful excuse, to perform a duty by law imposed upon him to furnish food, clothing, shelter or medical attendance to a minor, or to make such payment toward its maintenance as may have been required by the order of a court or magistrate when such minor has been committed to an institution; or, 2. Not being a superintendent of the poor, or a superintend ent of almshouses, or an institution duly incorporated for the purpose, without having first obtained a license in writing so to do from the board of health of the city or town wherein such females or children are received, boarded or kept, creets, conducts, establishes or maintains any maternity hospital, lying-in |