third contingency arises when A., looking out for B., sees C., whom he mistakes for B., and whom he kills. This is murder, because his intent to kill, however mistaken his reasoning, was really pointed at C. But where one of several utterly distinct intents is necessary to constitute an offence, proof of one will not sustain the averment of another. Thus the allegation of an intent to steal, in an indictment for burglary, will not be sustained by proof of an attempt to commit a sexual offence.2

be propor

tionate to

heinous

ness of

§ 121. It is sometimes argued, "Is it likely that one man should kill another for so small an object? Are we not to infer Motive when there is a homicide which is followed by the steal- need not ing of a mere trifle, that the homicide was the result of sudden passion, rather than lucri causa? Or for a mere prejudice or spite is it likely that one man may assassi- crime. nate another, and thus expose himself to the gallows? Or a person likely to incur the penalties of larceny for the sake of an article of no intrinsic worth?" No doubt when a tender mother kills a child, or friend kills a friend, and nothing more than the fact of killing is proved, we may be led to infer misadventure or insanity from the motivelessness of the act. But we have no right to make such inference because the motive is disproportionate. We are all of us apt to act on very inadequate motives; and the history of crime shows that murders are generally committed from motives comparatively trivial. A man unaccustomed to control his passions, and unregulated by religious or moral sense, exaggerates an affront, or nourishes a suspicion, until he determines that only the blood of the supposed offender can relieve the pang. For the smallest plunder, also, murders have been deliberately executed. Crime is rarely logical. Under a government where the laws are executed with ordinary certainty, all crime is a blunder as well as a wrong. If

If the killing of B. would have been justifiable, the killing of C. by mistake or accident will be excusable. State v. Spaulding, 34 Minn. 361, 1885; Pinder v. State, 27 Fla. 370, 1891; Butler v. State, (Ga.) 19 S. E. Rep. 51, 1893.

See 10 Cent, L. J. 37 et seq.

averment, in an indictment for the arson of B.'s house, that the intent was to burn B.'s house (1 Curw. Hawk. p. 140) can no longer be sustained. Whart Cr. Ev. 8 149-50. See R. v. Faulkner, 13 Cox C. C. 550, 1877.

2 Infra, 811; supra, 288 et seq.; and see Whart. Cr. Ev., 9th ed. & 149.

1 See infra, ?? 317-18; Meyer, Lehr- See, however, State v. Ruhl, 8 Iowa,

buch, 1875,

30.

The old doctrine that an intention

to burn A.'s house will sustain an

447, 1859, cited supra, 88; infra,

1756, 1761.

we should hold that no crime is to be punished except such as is rational, then there would be no crime to be punished, for no crime can be found that is rational. The motive is never correlative to the crime; never accurately proportioned to it. Nor does this apply solely to the very poor. Very rich men have been known to defraud others even of trifles, to forge wills, to kidnap and kill, so that an inheritance might be theirs. When a powerful passion seeks gratification, it is no extenuation that the act is illogical; for when passion is once allowed to operate, reason loosens its restraints, and hence when there is a general wrongful intent, no specific commensurate motive need be shown.1

§ 122. Malice, as is elsewhere abundantly shown,' is to be inferred from all the facts in the case, as a presumption of fact, and is never to be arbitrarily assumed as a presumption of law.3

Malice inferable

from facts.

Consciousness of unlawful

essential.

§ 123. To malice, consciousness of unlawfulness is not essential. At the first glance, it is true, it seems hard to punish a person for doing that which he thinks he has a right to ness not do. And in questions of title to property this is undoubtedly the rule, because a man cannot be said to intend to steal that which he believes to be his own. In other cases also, the knowledge that a thing is unlawful (in other words, the scienter) is an essential ingredient of the offence, as where the charge is an assault on an official person, knowing his legal status. But apart from these exceptions, ignorance of the law, as is elsewhere shown, is no defence; otherwise, the administration of penal law would depend on the uncertain and unascertainable mental conditions of persons accused.

§ 124. The task, often pronounced to be impossible, of exhaustively defining fraud, will not be here attempted. It is enough to say, that fraud in a general sense, is the deceitful unlawful

1 See R. v. Fursey, 6 C. & P. 81, 1833; Kelly v. Com., 11 S. & R. 345, 1824; Com. v. Laros, 84 Pa. 200, 1877; McLain v. Com., 99 Pa. 86, 1881; Forsythe v. State, 6 Ohio, 19, 1833; Preston v. State, 8 Tex. App. 30, 1880; Hubby v. State, 8 Tex. App. 597, 1880. 2 See Whart. Cr. Ev. 734, 764; R. v. Harvey, 3 D. & R. 464, 1823; R. v. Price, 5 C. & P. 510, 1833; R. v. Selten, 11 Cox C. C. 674, 1871; Hayes

v. State, 58 Ga. 35, 1877; Smith v. Com., 100 Pa. 324, 1882. But see Brown v. State, 4 Tex. App. 275, 1878.

3 Whart. Cr. Ev. 22 39, 40, 734, 764. The same rule is applicable to scienter ; Bonker v. People, 37 Mich. 4, 1877; and in cases of homicide. Infra, ? 380.

See supra, 84.

5 See 3 Steph. Hist. Crim. Law, 121.

Malice dis

fraud.

appropriation of the property of another, and a fraudulent intent is the intent to effect such appropriation. All fraud, therefore, is malicious, though all malice is not fraud, tinguishsince many malicious offences (e. g., those falling under able from the head of malicious mischief) exclude the idea of such appropriation. To fraud, also, deceit is essential, which is not always the case with malicious offences. A man may openly before the public rob another, yet, though this would be malicious, and would be indictable as robbery, it would not be fraudulent, as involving no deceit.

VOL. I.-10.

145

CHAPTER V.

NEGLIGENCE: AND HEREIN OF OMISSIONS.

Negligence is the omission of usual | Classification of indictable omissions, care, 125.

? 131.

Negligence is an intellectual, malice a Omissions may be malicious as well

usual care.

1

§ 125. A NEGLIGENT offence is an offence which ensues from a defective discharge of a duty, which defect could have Negligence is the omis- been avoided by the exercise, by the offender, of that sion of care which is usual, under similar circumstances, with prudent persons of the same class. Negligence is of two kinds: culpa levis, which is the lack of the diligence and care usual with good specialists of the particular class under the circumstances; and culpa lata, which is the lack of the diligence and care exercised by honest and worthy non-specialists, dealing with similar objects. In criminal cases this distinction operates mainly to determine the degree of evidence required to convict. A non-specialist (e. g., a person not claiming to be a physician or lawyer) cannot be convicted merely on proof of want of or failure to apply due qualifications; while a person claiming to be a specialist can be convicted on such proof3 Culpa levissima, or that slight aberration from duty incident to all human action, is not punishable, since, as there

See

1 Whart. on Neg. chap. i. See discussion in 4 Crim. Law Mag. 8. State v. Emery, 78 Mo. 77, 1883.

2 See Whart. on Neg. 28 27 et seq. 3 Whart. on Neg. 26; supra, & 89; as to physicians, see infra, 362.

are no persons to whom such negligence is not imputable, there are no persons, unless we recognize its non-indictability, who could escape punishment.'

malice a

moral, de

fect.

§ 126. Malice, as is elsewhere noticed, arises from an evil purpose, negligence from a failure of purpose; malice is Negligence imputable to a defect of heart, negligence to a defect of an intelintellect.3 If what results corresponds to what was in- lectual, tended, then the offence is malicious; if it does not correspond to what was intended, then, if the actor did not at the time exercise due care, the offence is negligent. On what we may call, therefore, the subjective side of an offence, there are two phases of indictability, the malicious and the negligent, corresponding to the ancient dolus and culpa. The legislature, however, may make penal dangerous acts irrespective of malice or negligence.*

1 Whart. on Neg. 26. Sir J. F. Stephen defines negligent offences as follows:

"Every one upon whom the law imposes any duty, or who has by contract, or by any wrongful act, taken upon himself any duty tending to the preservation of life, and who neglects to perform that duty, and thereby causes the death of (or bodily injury to) any person, commits the same offence as if he had caused the same effect by an act done in the state of mind, as to intent or otherwise, which accompanied the neglect of duty.

"Provided, that no one is deemed to have committed a crime only because he has caused the death of, or bodily injury to, another by negligence which is not culpable. What amount of negligence can be called culpable is a question of degree for the jury, depending on the circumstances of each particular case. An intentional omission to discharge legal duty always constitutes culpable negligence.

"Provided, also, that no one is deemed to have committed a crime by reason of the negligence of any servant or agent employed by him." Dig. Cr. L. art. 232 (5th ed.). See R. v. Allen,

7 C. & P. 153, 1835; R. v. Barrett, 2 C. & K. 343, 1846; R. v. Conrahy, 2 Craw. & Dix, 86, 1844; R. v. Tindall, 1 Nev. & P. 719; 6 A. & E. 143, 1837. To impose criminal responsibility, Sir J. F. Stephen, 3 Hist. Crim. Law, 11, maintains that there "must be more, but no one can say how much more, carelessness than is required in order to create a civil liability. For instance, many railway accidents are caused by a momentary forgetfulness or want of presence of mind, which are sufficient to involve the railway in civil liability, but are not sufficient to make the railway servant guilty of manslaughter if death is caused." But the better view is that the only difference between criminal and civil procedure in such case, is that in the first there can be no conviction if there be reasonable doubt of guilt, while in the second the verdict goes with preponderance of proof.

Supra, 2 88.