occurs, is imputable to the negligence. Hence it has been properly held, that it is no defence that a particular injurious consequence is "improbable," and "not to be reasonably expected,” if it really appear that it naturally followed from the negligence under examination.' The term "reasonably to be expected" is to be treated, therefore, as convertible with "likely in the long run to ensue."

As improbability does not divest responsibility, responsibility is not always imposed by probability. The miner, the manufacturer, and the merchant may regard it not only as possible but probable that their staples may be used for guilty purposes, but neither miner, manufacturer, nor merchant becomes thereby penally responsible. Even a high probability of injury does not in all cases confer penal responsibility. A sick man, for instance, is suffering from a disease which will cause his death in a few days unless he submits to an operation, which, if it does not cure, will cause death in a few hours. The patient is incapable of expressing his will as to the operation. The operation is undertaken by a surgeon, skilfully, but unsuccessfully. The patient dies, not of the disease, but of the operation. The surgeon foresaw that it was highly probable that the operation would not succeed. But he is nevertheless to be regarded as irresponsible when we assume that his conduct was in conformity with the rules of science and the maxims of prudent practice. If bold operations are never to be attempted, then the advance of surgery is impossible; and it is reasonable, and in harmony with sound rules of life, that a few days of unconsciousness, or of agonizing pain, should be risked for even a faint probability of recovery.

room and roars in his ear, 'Your wife is dead!' intending to kill and killing him; why are not these acts murder? They are no more 'secret things belonging to God' than the operation of arsenic. As to the fear that by admitting that such acts are murder, people might be rendered liable to prosecution for breaking the hearts of their fathers or wives by bad conduct, the answer is that such an event could never be proved. A long course of conduct, gradually 'breaking a man's heart,' could never be the 'direct or immediate' cause of death. If it was, and it was intended to have that effect, why should it not be murVOL. I.-13

der? In R. v. Towers, 12 Cox C. C. 530, 1874, a man was convicted before Denman, J., of manslaughter, for frightening a child to death. See Whart. on Hom. 372, on this case.

"Lord Hale doubts whether voluntarily and maliciously infecting a person of the plague, and so causing his death, would be murder, i. 432. It is hard to see why. He says that 'infection is God's arrow.' A different view was taken in the analogous case of R. v. Greenwood, 1 Russ. Cr. 673; 7 Cox C. C. 404, 1857."

Responsi

bility

ceases when

casus intervenes.

§ 169. Responsibility (imputatio) ceases where casus, or, as we term it, the act of God, intervenes. If in the act producing the damage there is nothing to be imputed to the defendant, there is nothing with which he is chargeable. "Ac ne is quidem hac lege tenetur, qui casu occidit (the action being, in this case, for damages under the Aquilian law), si modo culpa ejus nulla inveniatur."1 "In hac actione, quae ex hoc capitulo oritur, dolus et culpa punitur. Ideoque si quis in stipulam suam, vel spinam, comburendae ejus causa, ignem immiserit, et ulterius evagatus et progressus ignis alienam segetem vel vineam laeserit requiramus num imperitia ejus aut negligentia id accidit. Nam si die ventoso id fecit, culpae reus est; nam et qui occasionem praestat, damnum fecisse videtur. In eodem crimine est, et qui non observavit, ne ignis longius est procederit. At si omnia quae oportuit observavit, vel subita vis venti longius ignem produxit caret culpa."2 But casus is no defence if it was provoked by the defendant. He who exposes a helpless person in a cold night when a storm intervenes cannot set up as a defence that it was a storm that did the hurt. It is otherwise, however, when the injury was not a probable or natural consequence of the defendant's act. Hence, where A. knocked B. down, and B., when down, received a mortal blow from a kick from a horse jumping on him, it was held that A. was not indictable for killing B.1

CHAPTER VIII.

ATTEMPTS.

Need not be capability of success, VII. PUNISHMENT. 185.

Must be probable object within

1. OFFENCE GENERALLY.

§ 173. AN attempt is an intended apparent unfinished crime. It must be intended, since it is of its nature that it should be com

An at

unfinished

ble at com

mitted in order to effect a specific criminal result. It must be apparent, since if it be obviously not likely to effect the tempt is an result at which it aims (e. g., where a popgun is levelled crime, and at a ship, or a witch is employed to use enchantments), is indicta- it is not indictable. It must be unfinished, as othermon law. wise the indictment would be for the complete crime, but there must be at least some appreciable fragment of the crime committed, and it must be in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attemptor.? On the other hand, there can be no attempt at negligence, because negligence precludes the idea of intention, which is essential to attempt.3

By the English common law it is a misdemeanor to attempt to commit either a felony, or a malicious misdemeanor, whether common law or statutory. Hence it is an indictable attempt falsely to accuse another of crime, if any step be taken which, in the usual

1 The word "apparent," it should be observed, has been the subject of much controversy. On the one side it is maintained that unless the attempt is one capable of success it is not indictable; and by those who urge this view the word "apparent," which covers cases where the means are apparently fit but are really unfit, is rejected. On the other side it is insisted that as we can never predicate infallible success of any attempt, the most we can say in any case is that the attempt is apparent, and that to say that merely apparent attempts should not be indictable would be to say that there should be no indictable attempts. See infra, ?? 182 et seq.

2 Infra, 181. Sipple v. State, 17 Vroom, 197.

3 R. v. Boyce, 1 Mood. C. C. 29, 1825; State v. Keyes, 8 Vt. 57, 1836; Com. v. Martin, 17 Mass. 359, 1820; McKay v. State, 44 Tex. 43, 1875; infra, 176.

Conn. 112, 1819; Hackett v. Com., 15 Pa. 95, 1850; State v. Boyden, 13 Ired. 505, 1853; State v. Jordan, 75 N. C. 27, 1876; Griffin v. State, 26 Ga. 493, 1859. In Wisconsin it was held that conviction could not be had for an attempt to commit adultery. State v. Goodrich, 84 Wis. 359, 1893.

5 R. v. Higgins, 2 East R. 5, 1801; R. v. Phillips, 6 East R. 464, 1805; R. v. Chapman, 2 C. & K. 846, 1849; 1 Den. C. C. 432; R. v. Williams, 1 Den. C. C. 39, 1844; R. v. Butler, 6 C. & P. 368, 1834; R. v. Roderick, 7 C. & P. 795, 1837; R. v. Goff, 9 Up. Can. C. P. 438; R. v. Roberts, Dears. 539, 1855; 33 Eng. Law & Eq. 553; State v. Keyes, 8 Vt. 57, 1836; Com. v. Kingsbury, 5 Mass. 106, 1809; State v. Murray, 15 Me. 100, 1837; Com. v. Harrington, 3 Pick. 26, 1824; Demarest v. Haring, 6 Cow. 76, 1826; Com. v. Smith, 54 Pa. 209, 1867; State v. Maner, 2 Hill, (S. C.) 453, 1834; Berdeaux v. Davis, 58 Ala. 611, 1878; Ross v. Com., 2 B. Mon. 417, 1841; Nicholson v. State, 9 Baxt. 258, 1878; State v. Montgomery, 109 Mo. 645,

1 Hawk, P. C. 55; R. v. Higgins, 2 East R. 5, 1801; R. v. Kinnersley, 1 Strange, 196, 1718; Com. v. Barlow, 4 Mass. 439, 1808; State v. Danforth, 3 1892.

course of events, would lead to a conviction, even though the accusation take not the form of libel. In this view, the fabrication of mechanical inculpatory evidence is a substantive misdemeanor,1 and a fortiori, the attempt to bribe a witness. But to make an attempt indictable it must be to commit a consummated not an inchoate. offence. Hence no indictment lies for an attempt to commit an attempt or assault.3

Mere

words

do not con

stitute an

attempt.

§ 174. Mere words, unless they are libellous, seditious, obscene, or provocative of breaches of the public peace, are not the subject of penal judicial action. Even when they express illegal purposes, they are often merely speculative; are uttered often by weak men as braggadocio ; and always belong to a domain which criminal courts cannot invade without peril to individual freedom, and to the just and liberal progress of society. This liberty to express thought is recognized in all systems of civilized jurisprudence. "Cogitationis poenam nemo patitur," was a maxim of the Roman law, which is now accepted as part of the judicial system of all Christendom, and is adopted in the codes of the most arbitrary nations of Europe. And by the Roman comman law, even talking about a criminal intent, and thus giving to it public expression, does not constitute, unless there be treason, an attempt."

2

1 R. v. Simmons, 1 Wils. 329.

* Infra, ? 1332.

5 See this shown in Holzendorff's Ency. "Versuch."

6

ing:

According to Sir J. F. Stephen Very curious citations on this (Dig. art. 50, 5th ed.), "an attempt to point are given by Geib, Lehrbuch, commit a crime is an act done with etc., 99, among which are the followintent to commit that crime, and Romagnosi Genesi del diritto forming part of a series of acts which penale, pp. 221, 222. Tentare un dewould constitute its actual commission litto, non è soltanto pensarlo, o delibif it were not interrupted." This defi- erarlo; o vero dire di averlo pensato, nition has two defects. In the first o deliberato; ma bensì egli è porre in place, it does not include attempts opera tutto quello che ne può ottenere with unsuitable and yet apparently l'esecuzione. . . . Dunque il palesare effective means, which would not, il pensiero e la deliberazione di un even if uninterrupted, result in a con- delitto, cui però si è desistito di mansummated crime. Infra, 182. In the second place, it includes attempts voluntarily abandoned.

3 Brown v. State, 7 Tex. App. 569, 1880; R. v. King, 14 Cox C. C. 434, 1879. See Taylor v. State, 50 Ga. 79, 1873; infra, 611.

* L. 18. D. de Poenis, xlviii. 19.

dare ad esecuzione, ovvero la jattanza di volerlo effetuare, sensa però che s'intraprenda nulla in fatto colle azioni fisiche ed esterne, sono cose che non si possono veramente riguardare come attentati, nè si potrebbero punire come tali. Filangieri Scienza della legislazione, iii. 37. (T. iii. pp. 326,