§ 117 a. Malice may be exerted against a party at a distance; as where A. lays poison for B. in his food, which B. afterward takes and dies. Malice does not require physical an idiot or lunatic to kill contact. And so where A. procures B., which is done. In both instances A. is guilty of the murder as principal.1 The same result follows when an injury is produced by frightening the injured party.❜ In cases of dict must 3 § 118. As is elsewhere seen, wherever on a prosecution doubt, ver- for an offence, embracing two or more degrees, there is reasonable doubt as to whether the evidence sustains the higher degree, the verdict is to be taken for the lower. The rule in such case is "in dubio mitius."4 be taken for lower degree. Motives to be distin § 119. The will acts under a variety of motives, some guished very complex. The motive varies with the man, what is from intent. Com- strong with one being weak with another. The gratificabination of tion of passion is a responsible motive; and so also is the defence. general intent to violate law, fall the consequences on motives no 1 Infra, ¿? 167, 206-24, 278-9. 3 Whart. on Cr. Ev. 22 334, 721. 4 See, also, infra, & 392. as to murder in the first degree, Lewis v. State, 15 Tex. App. 647, 1883; which by statute requires delibera- Cook v. State, 77 Ga. 96, 1886; Malone tion. Infra, 380; R. v. Noon, 6 Cox v. State, 77 Ga. 767, 1886; State v. C. C. 137, 1852; U. S. v. Cornell, 2 Hockett, 70 Iowa, 442, 1886; HamMason, 91, 1820; U. S. v. McGlue, 1 mil v. State, 90 Ala. 577, 1890; State v. Curt. C. C. 1, 1851; State v. Lipsey, 3 Dennison, 44 La. An. 135, 1892; Green Dev. (N. C.) 485, 1832; Coffee v. State, v. State, (Ala.) 13 So. Rep. 482, 1893; 3 Yerg. 283, 1832; Woodsides v. State, State v. Ashley, (La.) 13 So. Rep. 738, 2 How. (Miss.) 655, 1837; Dains v. 1893. State, 2 Humph. 439, 1841; Green v. State, 13 Mo. 382, 1850; People v. Clark, 7 N. Y. 385, 1852; People v. Sullivan, 7 N. Y. 396, 1852; Mitchum v. State, 11 Ga. 615, 1852; People v. Moore, 8 Cal. 90, 1857; Fahnestock v. State, 23 Ind. 231, 1864; State v. Decklotts, 19 Iowa, 447, 1865; Lanergan v. People, 50 Barb. (N. Y.) 266, 1867; Com. v. Drum, 58 Pa. 9, 1868; McAdams v. State, 25 Ark. 405, 1869; Peri v. People, 65 Ill. 17, 1872; People v. Cotta, 49 Cal. 166, 1874; Miller v. State, 54 Ala. 155, 1875; Nichols v. Com., 11 Bush, 575, 1875; State v. Rhodes, 1 Houst. C. C. 476, 1877; Leighton v. People, 88 N. Y. 117, 1882; Ernest v. State, 20 Fla. 383, 1883; State v. Brown, 41 Minn. 319, 1889; Clifford v. State, 58 Wis. 477, 1883; 5 See infra, ? 153; Whart. Cr. Ev. 784 et seq; Ettinger v. Com., 98 Pa. 338, 1881; Marler v. State, 68 Ala. 580, 1881; Hogan v. State, 13 Tex. App. 319, 1882; Pinckord v. State, 13 Tex. App. 468, 1883; Turner v. State, 70 Ga. 765, 1883; Johnson v. State, 24 Fla 162, 1888; State v. Rainsbarger, 74 Iowa, 196, 1888; O'Brien v. Com., 89 Ky. 354, 1889; Jacobs v. State, 28 Tex. App. 79, 1889; Williams v. Com., 85 Va 607, 1889; Miller v. State, 68 Miss. 221, 1890; Johnson v. State, 29 Tex. App. 150, 1890; State v. Lentz, 45 Minn. 177, 1891; Com. v. McManus, 143 Pa. 64, 1891; Pate v. State, 94 whom they may.' And the law is, that no matter what may be the motives leading to a particular act, if the act be illegal, it is indictable, notwithstanding that some one or more of these motives may be meritorious. Thus the motive of promoting ultimate public good is no defence to an indictment for nuisance; intending to instruct the public is no defence to an indictment for libel; the motive of returning the goods is no defence to an indictment for embezzlement, or for larceny, nor is the motive of giving away the goods to another; scientific enthusiasm is no defence to an indictment for disinterring a corpse; the motive of notifying of a fire is no defence to an indictment for arson; the motive of ridding the community of a bad man is no defence to an indictment for homicide; 10 the motive of paying a debt with the proceeds is no defence to forgery. No matter what other motives, good or 5 11 Ala. 14, 1891; Johnston v. State, 94 Ala. 35, 1891; Franklin v. Com., 92 Ky. 612, 1892; Wilkerson v. State, 81 Tex. Cr. 86, 1892; Hodge v. State, 97 Ala. 37, 1893; Butler v. State, 92 Ga. 601, 1893; Davidson v. State, (Ind.) 34 N. E. Rep. 972, 1893; State v. O'Neil, 51 Kans. 651, 1893; Thomas v. Com., (Ky.) 20 S. W. Rep. 226, 1893; People v. Harris, 136 N. Y. 423, 1893; Gonzales v. State, 31 Tex. Cr. 508, 1893; Hall v. State, 31 Tex. Cr. 565, 1893; Snodgrass v. Com., (Va.) 17 S. E. Rep. 238, 1893. 1 See 1 Whart. & St. Med. Jur. 2 399, 404, 405; Whart. on Cr. Ev. ?? 135, 740. 2 Supra, 88; infra, ?? 380-1; 5 Law Quarterly Rev. 188; R. v. Johnson, 11 Mod. 62, 1706; R. v. Cox, R. & R. 362, 1818; R. v. Davis, 1 C. & P. 306, 1824; R. v. Gillon, 1 Mood. C. C. 85; s. c. 1 Lew. C. C. 57, 1825; R. v. Batt, 6 C. & P. 329, 1834; R. v. Ward, 4 A. & E. 384, 1836; infra, ?? 1416, 1421; R. v. Geach, 9 C. & P. 499, 1840; R. v. Bowen, C. & M. 149, 1841; R. v. Doddridge. 8 Cox C. C. 335, 1860; R. v. Morby, 8 Q. B. D. 571, 1882; R. v. Dudley, 14 Q. B. D. 273, 1884; People v. Curling, 1 Johns. 220, 1806; State v. Cocker, 3 Harring. 554, Infra, 1594. Steele v. Brannans, bad, co-operated, if the intent to do the particular unlawful act is either proved or implied, the offence, if committed, is complete.' If the law were otherwise, there would be few convictions of crime, for there are few crimes in which extraneous motives are not mixed up with the particular evil motive.2 Unintend derives its pose to incidental. § 120. When an intent exists to do wrong, and an unintended illegal act ensues as a natural and probable consequence, ed injury the unintended wrong derives its character from the character general evil intent.3 A general malevolent purpose to from pur- break the law, for instance, or to inflict injury irrespecwhich it is tive of any particular malice, gives color to a particular wrongful act committed in execution of the general malevolent purpose. A man out of general malignity may fire on a crowd, or may displace a rail on a railway; and then, if any life be lost, he is responsible for murder, though he may have had no intention of taking any particular life. It has been further ruled that if a man shoots A. by mistaking the person, when intending to shoot B., he is responsible for shooting A., under statutes which make it penal to shoot at another with intent to kill the person shot 1 U. S. v. Stores, 4 Woods, 641, 1882; State v. King, 86 N. C. 603, 1882; State v. Jones, 79 Mo. 441, 1883; State v. Slingerland, 19 Nev. 135, 1885. See Pence v. State, 110 Ind. 95, 1886. As to concurrent bad motives, see R. v. Batt, 6 C. & P. 329, 1834; R. v. Hill, 2 Mood. C. C. 30, 1837; R. v. Geach, 9 C. & P. 499, 1840; R. v. Doddridge, 8 Cox C. C. 335, 1860; State v. Moore, 12 N. H. 42, 1841; People v. Carmichael, 5 Mich. 10, 1858; Clifton v. State, 73 Ala. 473, 1883. It is no defence that the act was done in sport or jest. Hill v. State, 63 Ga. 578, 1879; Smith v. Com., 100 Pa. 324, 1882; People v. Stubenvoll, 62 Mich. 329, 1886; Henderson v. State, (Ala.) 13 So. Rep. 146, 1893. See cases cited infra, 28 373 a, 608 a. 2 See infra, ?? 122, 1168; Whart. Cr. Ev. 734 et seq.; 1 Whart. & St. Med. Jur. 399-405; Ideler, Lehrbuch, pp. 254-266; Spectator, July 26, 1879. In R. v. Woodburne, 16 St. Tr. 54, 1722, it was held that though the intent was to murder and not to disfigure, the defendant might be convicted of maiming with intent to disfigure. This, which strains to its extremest tension the doctrine in the text, is sustained by Sir J. F. Stephen in his History of Crim. Law. 3 See supra, 107-110; 9 Crim. Law Mag. 145; State v. McCahill, 72 Iowa, 111, 1887; State v. Munchrath, 78 Iowa, 268, 1889; State v. Levelle, 34 S. C. 120, 1890; Baker v. State, 30 Fla. 41, 1892. One who administers a drug with intent merely to stupefy; State v. Wagner, 78 Mo. 644; s. c. 47 Am. Rep. 131, 1883; State v. Wells, 61 Iowa, 629; s. c. 47 Am. Rep. 822, 1883; or to excite sexual desire; State v. Deschamps, 41 La. An. 1051, 1890, will be liable if it cause death. See supra, 110; infra, ?? 186, 319. Morgan v. State, 13 Sm. & M. 242, 1849. at.1 And so has it bee. held with regard to murder at common law.2 We have the same distinction taken as to burglary, where the intent was to steal something different from that actually stolen ;3 and as to arson, where the intent was to get a reward by giving the earliest information of a fire at the police station, and not to injure the owner; or where an unintended house was burned. And so if there be a deliberate intent, when taking lost goods, to steal, no matter who may be the owner, this intent may be viewed as an intent to steal from A., when A. is subsequently discovered as owner." In other words, when there is a general intent to do evil, of which evil the wrong actually done may be looked upon as a probable incident, then the party having such general intent is to be regarded as having intended the particular wrong. A man using a deadly weapon in a crowd, intending to kill, must be regarded as intending to kill all within the range of the weapon, whether as a primary object, or as incidental to such primary object. And a 1 R. v. Jarvis, 2 Mood. & R. 40, prohibitum in this relation is now ex1837; R. v. Smith, Dears. C. C. 559; ploded. A man who inflicts injury 8. 33 E. L. & Eq. 567, 1855; incidentally to attempting a statutory Walker v. State, 8 Ind. 290, 1856; crime is, on the reasoning of the text, People v. Torres, 38 Cal. 141, 1869; as responsible as is the man who inCallahan v. State, 21 Ohio St. 306, flicts injury incidentally to a common 1876. See Com. v. McLaughlin, 12 law crime. Cush. 615, 1853; and see, also, supra, 107; infra, 645 a. 1 See infra, 317-320, 645 a; R. v. Saunders, 2 Plow. 473, 1876; Angell v. State, 36 Tex. 542, 1871. 3 Infra, & 810. 4 R. v. 1850. 8 Bailey's Case, R. & R. C. C. 1, 1800; State v. Myers, 19 Iowa, 517, 1865; Golliher v. Com., 2 Duval, 163; s. c. 87 Am. Dec. 493, 1865; State v. Nash, 86 N. C. 650; s. c. 41 Am. Rep. 472, 1882; Scott v. State, 49 Ark. 156, Regan, 4 Cox C. C. 335, 1886; Spies v. People, 122 Ill. 1, It has also been held that 1887; State v. Adams, 78 Iowa, 292, when a party intending to commit a 1889; Minaghan v. State, 77 Wis. 643, rape takes money from the woman at- 1890; People v. Raher, 92 Mich. 165; tacked, it may be robbery, though s. c. 31 Am. St. Rep. 575, 1892; Combs no money was demanded; R. v. Black- v. Com., (Ky.) 21 S. W. Rep. 353, 1893. ham, 2 East P. C. 711, 1787; infra, ? So, also, a man is criminally liable for an accident that may happen from shooting in a public street. People v. Fuller, 2 Park. Cr. Rep. 16, 1823; Sparks v. Com., 3 Bush, (Ky.) 111; s. c. 96 Am. Dec. 196, 1867; and, in general, for any reckless behavior that shows a criminal disregard for the safety of others. Mayes v. People, 856. R. v. Pedley, 2 East P. C. 1026; 22 Geo. III.; R. v. Proberts, 2 East P. C. 1030; 20 Geo. III. Infra, ?? 836, 1283. R. v. Moore, L. & C. 1, 1861; s. c. 8 Cox C. C. 416, 1861. The distinction taken in the old books between malum in se and malum general intent to do evil, such as to cover all the natural probable consequences of the act, may be inferred from the circumstances of the case. If, however, as will hereafter be seen, it is plain that the offender's will was directed exclusively to a particular end in which he failed, and that the act done by him was unintended in any sense, and was not a natural or probable result of his misconduct, then the more logical course is to indict him for a malicious attempt to do the unperformed act and for negligence in the act performed.2 A 106 Ill. 306; s. c. 46 Am. Rep. 698, 1883; State v. Emery, 78 Mo. 77; s. c. 47 Am. Rep. 92, 1883; State v. Barbee, 92 N. C. 820, 1885; People v. Stubenvoll, 62 Mich. 329, 1886; Com. v. Matthews, 89 Ky. 287, 1889; Guinn v. Com., (Ky.) 12 S. W. Rep. 672,1889; Johnson v. State, 94 Ala. 35, 1891; State v. Morrison, 104 Mo. 638, 1891; Pool v. State, 87 Ga. 526, 1891; Brown v. Com., 91 Ky. 472, 1891; State v. Grote, 109 Mo. 345, 1891; Cook v. State, (Ga.) 18 S. E. Rep. 823, 1893. But the offence will not be of the highest grade. Johnson v. State, supra; Burton v. State, 92 Ga. 449, 1893. 1 1 Supra, 110-11. R. v. Fretwell, 64 L. & C. 443; s. c. 9 Cox C. C. 471; Washington v. State, 60 Ala. 10, 1877; Aiken v. State, 10 Tex. App. 610, 1881; State v. Gilman, 69 Me. 163, 1879; State v. Sloanaker, 1 Houst. C. C. 62, 1858. See fully cases cited, infra, 28 317 et seq., 383. Thus he who sets fire to his own house, intending to defraud the insurers, and burns his neighbor's house by the communicating of the fire, is indictable for maliciously burning the latter house. R. v. Proberts, 2 East P. C. 1030, 2093. Infra, 830. That the injury must be a probable consequence of the act, see R. v. Faulkner, 13 Cox C. C. 550, 1877, cited infra, ¿ 829; Com. v. Adams, 114 Mass. 323, 1873. 2 R. v. Pembliton, 2 L. R. C. C. 119; s. c. 12 Cox C. C. 607, 1874; infra, 1070. As to concurrence of malice and negligence, see infra, ? 128. The killing of A. in mistake for B. is well settled to be with malicious intent. Infra, 28 317-22; State v. Smith, 32 Me. 369, 1851; State v. Payton, 90 Mo. 220, 1886. And in spite of the contrary decisions, the great weight of authority is in favor of the view that if A. aims at B. and hits C., the intent will be transferred to C., and A. will be guilty. R. v. Stopford, 11 Cox C. C. 643, 1870; R. v. Latimer, 17 Q. B. D. 359; s. c. 16 Cox C. C 70, 1886; Dunaway v. People, 110 Ill. 333; s. c. 51 Am. Rep. 686, 1884; McGehee v. State, 62 Miss. 772; s. c. 52 Am. Rep. 209, 1885; Burchett v. Com., (Ky.) 1 S. W. Rep 423, 1886; Territory v. Rowand, 8 Mont. 432, 1889; Jennings v. Com., 16 S. W. Rep. 348, 1891; Com. v. Breyessee, 160 Pa. 451, 1894; contra, R. v. Hewlett, 1 F. & F. 91, 1858; Morgan v. State, 13 Sm. & M. 242, 1849; Barcus v. State, 49 Miss. 17, 1873; Com. v. Morgan, 11 Bush, (Ky.) 601, 1876; Lacefield v. State, 34 Ark. 275, 1879; People v. Robinson, 6 Utah, 101, 1889. The grade of offence is the same as if the criminal had effected his original intention. State v. Henson, 81 Mo. 384, 1884; State v. Montgomery, 91 Mo. 52, 1886; Pinder v. State, 27 Fla. 370, 1891; State v. Renfrow, 111 Mo. 589, 1892; Com. v. Breyessee, 160 Pa. 451, 1894; except that it will reduce homicide to murder of the second degree. Musick v. State, 21 Tex. App. 69, 1886. |