or where one gives a perfect stranger a blow likely to produce death. Here there is a wilful doing of a wrongful act without lawful excuse; and the intention is an inference of law resulting from the doing the act (s). The law infers that every man must contemplate the necessary consequences of his own act (t). Here, and everywhere in dealing with malice, there is great danger of deflexion into malice with its moral signification, as denoting ill-will or malevolence. In other words, of confounding motive with intention. Malice, in the sense of malevolence, is not essential to a crime; malice, in its legal signification of criminal intention, is (u). As we have seen, it is the character of the intention Intention, that determines the character of the act; though other the test of criminality. considerations, for example, motives, are taken into account in order to discover the intention. The same act may be wholly innocent, a civil injury, or a crime, according to the intention. For example, A. takes a horse from the owner's stable without his consent. If he intend to fraudulently deprive the owner of the property and appropriate the horse to himself, he is guilty of the crime of larceny. If he intend to use it for a time and then return it, it is a trespass or civil injury only. If he take it in due course as distress for rent, he is justified and not exposed to any ill consequences (a). But a naked intention is not criminally punishable, except, as it is said, in treason. There must be some (8) 4 Bl. 199, v. p. 155. (t) R. v. Dixon, 3 M. & Sel. 15. (u)"In the use of the word 'malice,' in all cases there is undoubtedly always a lurking reference to some sort of moral depravity, though perhaps only of a temporary sort. But the intangible nature of such an element compels the legislature and the judge to select certain determinate signs as essential characteristics of this depravity."-Amos, Jurisprudence, 305. (x) Broom, C. L. 871. Attempts. carrying out, or attempt to carry out, that intention into action. In other words, the intention is to be inferred from some overt act, or in the case of a crime of omission, from the absence of some overt act. Thus, although A. has resolutely made up his mind to shoot B. when next he meets him, and confesses this resolution, the law is powerless to deal with him; but directly he does anything in pursuance of that design, he is within the grasp of the law. The reason for this rule is obvious, namely, the difficulty, or rather impossibility of proving a mere intention. If there be present a criminal intention, the prisoner is not exculpated because the results of the steps he takes to carry out that intention are other than those he anticipated or intended. For example, if A., intending to shoot B., shoots C., mistaking C. for B. To such a length is this doctrine extended, that if A. shoots at B.'s poultry and by accident kills a man, if his intention be to steal the poultry, he will be guilty of murder. The act, viz., the shooting, is willed, and the intention is criminal (and felonious); therefore the essentials of a crime are furnished, and the result determines what the crime is. This is not the only respect in which the gravity and nature of the crime are determined by circumstances over which he has not control. Thus, if B. receives a blow from A., and, through the unskilful treatment of the wound by the surgeon, dies, A. will be guilty of murder or manslaughter. The intention is, then, not the sole gauge of criminal liability. Though a mere intention is not punishable, an attempt to commit a crime is itself a crime, and therefore the subject of punishment. That which the law wishes to discover is the intention, and an attempt equally with a completion of the offence will be evidence of this. What is sufficient to constitute an attempt? An attempt may be said to be the doing of any of the acts which must be done in succession before the desired object can be accomplished; or rather, with the limitation that the attempt must be an act directly approximating to the commission of the offence. Thus procuring a die for coining was held an act in furtherance of the criminal purpose sufficiently proximate to the offence (y); but not so the buying a box of matches for setting a stack of corn on fire (z). But the act must have been such that, if no interruption had taken place, the principal offence would have been successfully committed; so that if a person puts his hand into a pocket with intent to steal what is there, and the pocket is empty, he cannot be convicted of an attempt to steal (a). Every attempt to commit a crime is itself an indictable misdemeanor at common law. In some cases, it is specially provided that it shall amount to a felony, e.g., attempt to murder (b). indictment for If on the trial of a person charged with felony or Verdict of misdemeanor, the jury do not think that the offence attempt on was completed, but, nevertheless, are of the opinion that the complete an attempt was made, they may express this in their crime. verdict. The prisoner is then dealt with as if he had been convicted on an indictment for the attempt. But of course he is not liable to be prosecuted afterwards for the attempt (c). As a rule, attempts are punished less severely than Punishment of the corresponding consummate crimes, though the mis- attempts. chief may be as great in the one case as the other. It is with a view to cases in which the complete offence is (y) R. v. Roberts, 25 L. J. (M.C.) 17. more mischievous that the distinction is made, so as to give the person a locus pœnitentiæ before the consummation. It may be noticed that this consummation is prevented sometimes by the penitence of the party, sometimes by extrinsic causes (d). (d) Austin, 1098. CHAPTER IV. PERSONS CAPABLE OF COMMITTING CRIMES. responsibility. EVERY man must be presumed to be responsible for his Exemptions acts until the contrary is clearly shewn. If an act from criminal ordinarily falling within the scope of the criminal law be committed, the law presumes that it was done wilfully and with malicious intent. Therefore it lies on the accused to rebut this presumption. There are certain exemptions from criminal responsibility, or rather, under certain circumstances, acts which would otherwise be criminal, on some special ground are not deemed so. The foregoing examination of the essential elements of crime enables us to determine what is the nature of these exemptions; inasmuch as they are founded, as a rule, on the absence of one of those essentials. In one or two instances, however, other considerations, either of policy or well-advised lenity, are entertained, e.g., in the case of crimes committed by ambassadors. The several instances of irresponsibility may be Classification reduced to the following classes : 1. Absence of criminal intention or malice, including: Insanity: Infancy: Ignorance (mistake). 2. Absence of will, i.e., the act is purely involuntary :- Misfortune, &c.: Physical compulsion. 0 2 of exemptions. |