It

When the danger is over, the right of self-defence ceases.' follows that when a thing which is the object of attack is finally taken from him, the loser cannot ordinarily use violence to recover it. For this purpose he must resort to process of law. The technical right extends to the defence of a thing before it is taken; not to its recovery after it is taken. "Quamvis vim vi repellere omnes leges et omnia iura permittunt,―tamen id debet fieri cum moderamine inculpatae tutelae, non ad sumendam vindictam, sed ad propulsandam iniuriam." If, however, he can retake it without undue violence he may do so. But an assault on his person he cannot punish when the danger is over. His right is defence, not retribution.1

Inference

to be drawn from

3

§ 103. The inference to be drawn from the weapon used applies with peculiar force to cases of self-defence. A man who, when attacked, draws out a pistol and shoots down his assailant, cannot, under ordinary circumstances, claim that weapon. he was surprised by the attack. No one in a civilized society, where the law gives protection to those in danger, is entitled to carry concealed weapons, in order to meet an attack which he could avert by the ordinary processes of law. If, however, the weapon is one which it is customary to carry, or if it is caught up on a sudden, in fright or in hot blood, by the assailed, then no inference of premeditation can be drawn.

life and limbs to the violence, wild and frantic as it would necessarily be, which he himself called forth in the person assailed. Schaper, in Holtz. Straf. ii. 139.

1 See infra, ?? 484 et seq.

between those present and acting among the assailants the assailed is not bound to distinguish between the several degrees of activity or responsibility. Nor is he bound to call upon any of them to say what they purpose,

2 C. 2 x. De homic. v. 12, c. 18. eod. and in what way they mean to carry Berner, 88. Infra, 462.

3 State v. Elliot, 11 N. H. 540, 1840. * See infra, ? 487. R. v. Driscoll, C. & M. 214, 1841; R. v. Mitton, 3 C. & P. 31; Com. v. Ford, 5 Gray, 475, 1856; People v. Caryl, 3 Parker C. R. 326, 1855; State v. Lowry, 4 Nev. 161, 1868; Territory v. Drennan, 1 Montana, 41, 1868.

The right (self-defence) can only be exercised at the moment of the attack. It cannot, therefore, be exercised against the absent, though they be instigators of an actual attack. But

out their purpose, since this depends upon contingencies which no one of them can preascertain. Nor does retreat of the assailant by itself necessarily exclude the idea of a perilous attack. An assailant may retreat as a feint, as is sometimes the case with robbers in attacks on country seats, and it may be added in other cases of malicious assaults. Schaper, in Holtz. Straf. ii. 145.

5 Infra, & 122.

See fully Whart. on Cr. Ev. 2 764; and infra, ?? 484 et seq.

CHAPTER IV.

MALICE AND INTENT.

Malice is evil intent, and is converti- | Premeditation requires no fixed period, ble with dolus, & 106.

To dolus, will, object, and causation Intent at time of action enough,

But duration to be inferred from facts, Malice distinguishable from fraud, 2115.

§ 106. MALICE may be defined as intent to do injury to another;' and may, for the purposes of this treatise, be regarded as having the same meaning as dolus. Dolus, also, includes the idea of fraud, which in our present legal use is not convertible with malice; but so far as concerns injuries effected by force, dolus and malice are equivalent terms.

which by our law would not be regarded as malicious, would not by the Roman law be regarded as caused by dolus. A wound, to whose author the Roman law does not impute dolus, would not be regarded by our law as malicious. Between dolus and culpa the line is drawn in the Roman law in the same way as in our own law the line between malice and negligence. There is, however, this difference between the two jurisprudences: to dolus, as a psychological study, the Roman jurists devoted great attention; to malice, as a psychological study, our jurists have given but little attention, contenting themselves in dealing curtly with the subject in the concrete.' In our own system, malice, in its most general sense, includes all unlawful intent; and is therefore distinguished from motive, which is ultimate purpose, and which, unless introduced as a link in a chain of inculpatory or exculpatory proof, is irrelevant. The motive of A. in killing B. may have been to rid the community of a villain. But this does not touch the issue, so far as A.'s state of mind is concerned; the question is not was A.'s motive good in killing, but was it his intent to kill.2

§ 107. According to an able recent commentator on the Roman Law, the following are the essential ingredients of dolus :

1. The internal will.

2. The external act.

3. The causal relation of the will to the act.

To dolus will, ob ject, and causation

If the will is not brought into connection with the act, the act is not to be considered as willed; yet we must remember that no thoughtful man can insulate a particular act so as to cut that act off from the consequences that naturally follow from it. I throw a stone into the water, intending simply to get rid of the stone from the land. Yet at the same time I cannot, as one who has previously observed similar results, and who reasons from the most familiar principles of physics,

are essen

tial.

1 See Austin's Jurisp. ii. 327; Whart. for some considerable time before the Hom. 129. It should not be forgotten commission of the fact; which is a in this connection that the legal mean- mistake, arising from the not well dising of the term malitia or malice is tinguishing between hatred and malice. different from its popular meaning, Envy, hatred, and malice are three which makes it synonymous with spite. distinct passions of the mind." Kel. Thus Lord Holt says: "Some have 127. The confusion arising from this been led into mistakes by not well con- ambiguity is discussed in 2 Steph. sidering what the passion of malice is; Hist. Crim. Law, 120. they have construed it to be a rancor of mind lodged in the person killing

2 See supra, 11; infra, & 119
3 Gessler's Dolis Tübingen, 1860.

forget that this stone will cause a ripple on the surface of the water. A similar case, it is argued, arises when A. shoots at B., intending to kill him, but the ball glances and kills C., whom A. has reason to expect to be in close vicinity. The intention to kill B., could it be so insulated as to detach it from any consequence except that intended, could not support an indictment for killing C.; but if it cannot be so insulated, and if shooting at B. naturally involves the contingency of missing B. and hitting C., then dolus is to be imputed to the killing C.2

We must at the same time remember that an instrumental intent, the realization of which produces an injury to another, may be either indifferent or criminal. A man may drop a stone from a roof on a street, and may do this either sportively or with intent to hurt a passer-by. When there is an intent to hurt, in other words, when to the intent to use a particular instrument the intent to hurt by the use of such instrument is added, then dolus exists. Dolus (malice) is therefore the condition of an offence by an instrument specifically intended, and the act must be immediately directed by the intent.3 Culpa (negligence) is the condition of an offence not intentional, but imputable to the lack of such diligence as it was the duty of the party to bestow.

§ 108. It is here that emerges the question that has been productive of so much difficulty in this branch of jurisprudence. Is it sufficient to constitute dolus (malice) that the fatal result should only appear to the assailant as a mere possibility? In answering this question we must remember that we are not able to select

1

1 See Meyer, 106, who defines 101, 1889; but the great weight of dolus to be the will to do in the con- authority is against this view. R. v. crete that which the law forbids in Latimer, 17 Q. B. D. 359; s. c. 16 the abstract. Cox C. C. 70, 1886; Angell v. State, 36 Tex. 542, 1871; Wareham v. State, 25 Ohio St. 601, 1874; Lacefield v. State, 34 Ark. 275, 1879; State v. Lee Vines, 34 La. An. 1079, 1882. In such a case the felonious intent is transferred. State v. Montgomery, 91 Mo. 52, 1886; State v. Renfrow, 111 Mo. 589, 1892; Com. v. Breyessee, 160 Pa. 451, 1894.

See infra, ¿? 120, 128, 318; R. v. Smith, Dears. C. C. 559; s. c. 7 Cox C. C. 51; 33 E. L. & Eq. 567, 1855; R. v. Stopford, 11 Cox C. C. 643, 1870. It has been attempted to distinguish between the case of a mistake of person, as where C. takes A. for B., and shoots or strikes him, and a mistake of aim, as when he intends to hit B. and hits A., on the ground that in the latter case the element of intent is lacking; R. v. Hewlett, 1 F. & F. 91, 1858; People v. Robinson, 6 Utah,

3 See R. v. Chapman, 1 Den. C. C. 432, 1849; R. v. Preston, 2 Den. C. C. 353, 1851; Resp. v. Roberts, 1 Dall. 39, 1778; Morse v. State, 6 Conn. 9, 1825.

Sufficient if party charged

contem

plated result as a contingency.

[BOOK I. arbitrarily the instruments we want to effect a particular end, nor is there any instrument which we can speak of as absolutely in our power. Whatever we attempt we have to execute by means of agencies whose operation may be modified by numerous contingencies over which we have no control. No plan of wrong, therefore, can be framed by even the most capable and cautious of conspirators, which they must not regard as dependent upon contingencies for its consummation. An assailant, therefore, in meditating an attack on another, must contemplate the possibility of miscarriage. This possibility may be greater or less. A good marksman may be almost sure of hitting his intended victim; a man who sends an explosive compound to an enemy may estimate that the probability of injuring his enemy is slight. If the means adopted are such as cannot possibly succeed, then there is no such connection between the instrumental intent and the final intent as is essential to constitute guilt. But if there be no such impossibility, and if the means adopted, improbable as it would seem, have a fatal result, then the end is to be regarded as having been intended.'

Dolus may be classi

fied as determinatus

nativus.

§ 109. We shall hereafter have occasion to distinguish between motive and intent; motive being in this sense the moving power impelling to action for a particular result, intent being the purpose to use a particular means to effect such and alter result. An analogous distinction is expressed in Germany by the words Vorsatz and Absicht. The intent, for instance, may be directed to the use of a particular instrument, but this instrument may be used to give effect to one of several motives, e. g., a blow may be given with the motive of wounding, or disgracing, or killing; or when a house is set on fire, the motive may be either plunder or homicide. In this view dolus may be regarded as either determinatus, alternativus, or eventualis.

§ 110. 1. Dolus determinatus exists when the instrument is intentionally used to effect a single purpose, as when a deadly poison is intentionally given with the sole puris where a pose of killing. It makes no difference whether or no pose is per- the instrument will effect the object with apparent cer

Dolus determinatus

single pur

sistently

pursued. tainty. The person whose life is attempted may have warded off susceptibility to disease by antidotes. Or it

2

See infra, 22 169, 317-8, and see Infra, 119. See Cherry Cr. R. Robinson v. State, 54 Ala. 86, 1875; 9 p. 12.

Crim. Law Mag. 139.