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ously been written some other matter so liable, before the paper has been again stamped, but makes no mention whether the intent must be a fraudulent one or otherwise. Yet it was ruled by Abinger, C. B., that the offence is not committed unless the intent is fraudulent. The doctrine is, that the statute is to be so construed in connection with the common law, which requires an evil intent to accompany the evil act, as to add in favor of the defendant 2 this provision.

* Reg. v. Allday, 8 Car. & P. 136. And see the cases cited ante, $ 80; Sasser v. The State, 13 Ohio, 453, 483, 484 ; Reg. v. Philpotts, 1 Car. & K. 112.

? Ante, $ 147.

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SECT. 253 a-253 d. Introductory Views.

254-260 a. General Explanation of the Doctrine.

261-263. The Words Wilful and Malicious.

§ 253 a. The result of human actions is often different from what the doer intended. When it is so, the result being an evil one, the rule of morals excuses the doer, provided his motive was good. The rule of law is the same.1

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§ 253 b. Yet this proposition is neither in morals nor in law carried to the extent of excusing men who culpably neg. lect their opportunities to learn how the intended result may be produced. Thus, in law, we have the doctrine of carelessness, already explained. Still the law, regarding only the more palpable things, does not notice all the nice distinctions which moral science would draw, and an enlightened conscience recognize; therefore a man may be legally excusable for the ill consequence of a well-intended act, while we should hold him to be, in some sense, morally guilty, on account of his neglecting to learn.

§ 253 c. On the other hand, if a man means ill, but unintentionally his act results in good, we hold him to be morally guilty. To a certain extent also, we hold him to be legally guilty; but we are here embarrassed by the principle, that, to constitute a legal crime, the evil intent must have produced


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an evil act; a principle modified by the further proposition, that in many cases the act need be evil only in consequence of the evil mind from which it flowed. There are plainly, however, circumstances in which the intended evil act fails of being done, while the act really done is not to be deemed in law evil, in consequence of the evil intent producing it; under which circumstances, no legal crime is committed. And this is probably so whenever the thing really done iş positively good, both in its nature and its consequences; for we cannot well perceive any thing to be both good and bad at the same time.

§ 253 d. Obviously if the act, not being evil in itself, could not produce evil under any circumstances and carried to any exent; if it were neither the first nor the last nor any intermediate step in any path of wrong; it could not be legally deemed a criminal act, though the doer had wickedness in his heart while performing it. But this proposition aids us only remotely. On principle, the true view doubtless is, that the court must look at the circumstances of each case; and decide, whether, under them all, the thing done and the intent producing it together make up such a wrong as should be noticed by the tribunals. And in deciding any particular case, recourse must be had to former decisions, and to the analogies of the law. True indeed this rule is a vague one; but, in dealing with human affairs, finite minds must sometimes proceed on vague rules, when they are unable to examine the original sources of right and of expediency which lie, the one in the bosom of God, and the other scattered over the entire face of earthly things. But this matter, of the criminal qua ity given to indifferent acts by the criminal intent, will be resi.med in another part of the present volume.?

§ 254. Having thr, called to mind the general doctrine,



Post, $ 315 et seq.

Ante, $ 229.

let us see more exactly how it applies. Every act producing an unintended result must, when evil, be measured either by the intent or by the result. The common law rule measures it substantially by the latter, holding the person guilty of the thing done, the same as though specifically intended; not always, however, guilty of the crime in the same degree. Says Rutherforth : “ There is so little difference between a disposition to do great harm, and a great disposition to do harm, that one of them may very well be looked upon as the measure of the other. Since, therefore, the guilt of a crime consists in the disposition to do harm, which the criminal shows by committing it; and since this disposition is greater or less in proportion to the harm which is done by the crime; the consequence is, that the guilt of a crime follows the same proportion : it is greater or less, according as the crime, in its own nature, does greater or less harm." The doctrine


See Eden Penal Law, 3d ed. 229; where the writer, admitting this doctrine to be law, disapproves of it; and maintains, that "every member of society hath a right to do any act without the apprehension of other inconveniences than those which are the proper consequences of the act itself; for it is the right of every member of society to know not only when he is criminal, but in what degree he is so.” I confess it seems to me, that no man can set up a right to commit, on any terms, a wrong; as to murder another, on condition of submitting himself to be hung. When one has fully entertained a criminal purpose, he is to be treated as having done the thing meant, so far as concerns the moral or religious aspect of the case. He cannot complain if he is punished for this mere intent. But society has no interest to interfere until she is injured by an act he has performed. And the injury to society is the same, whether what was done was intended or not. Therefore, when society punishes him for what was done, she wrongs him not, unless his act was more evil than his intent. But where it was more evil, the case presents a difficulty which the law seems not fully to have provided against. See also People v. Enoch, 13 Wend. 159, 174;. Reg. v. Camplin, 1 Car. & K. 746; Commonwealth v. Call, 21 Pick. 515; Rex v. Williams, 1 Moody, 107; Reg. v. Packard, Car. & M. 236; Gore's case, 9 Co. 81 a; United States v. Ross, 1 Gallis. 624.

* Ruth. Inst. c. 18, $ 9. For what seems to me, however, to be a somewhat more accurate statement of the matter on principle, see the previous note to this section, the concluding period of the section itself, and post, $ 257.

may otherwise be stated thus: the thing done, having proceeded from a corrupt mind, is to be viewed the same, whatever be the particular form of the corruption.

§ 255. On this principle, if one intending to murder a particular individual, shoots at him, and by accident the charge lodges in another person, whom it deprives of life;1 or, if one lays poison for another, and a third, finding it, takes it and dies;2 or if one, attempting to steal poultry, discharges his gun, and thereby accidentally kills a human being; 3 or if a jailer, with no design against the life of his prisoner, confines him, contrary to the prisoners will, in an unwholesome room, without allowing him the necessaries requisite to cleanliness, whereby he contracts a distemper of which he dies;4 or if one, with the purpose of procuring an abortion, does an act which causes the child to be born so prema: turely as to be less capable of living, and it dies from exposure to the external world,5 — the party unintentionally causing the death is guilty, the same as if he had intended it, of murder.

§ 256. So where a man assaults a woman with intent to commit a rape upon her, not intending to rob her; and she, hoping to redeem her chastity, offers him money which he puts in his pocket, though he did not demand it; this is in law robbery. In like manner, if one attempts to burn the


· Rex v. Plummer, 12 Mod. 627, 628; Rex v. Jarvis, 2 Moody & R. 40. And see Yong's case, 4 Co. 40 a; Rex v. Hunt, i Moody, 93. So if, on a sudden quarrel, a blow is aimed at one which accidentally takes effect on another, and kills him, this will be manslaughter, the same as if it had fallen on the person intended. Rex v. Brown, 1 Leach, 4th ed. 148, 1 East P. C. 231, 245, 274. • Gore's case, 9 Co. 81 a; Rex v. Jarvis, 2 Moody & R. 40; Rex v. Lewis,

. 6 Car. & P. 161.

s 1 East P. C. 225; Eden Penal Law, 3d ed. 227. * Rex v. Huggins, 2 Stra. 882, 2 Ld. Raym. 1574,

Reg. v. West, 2 Car. & K. 784. • Rex v. Blackham, 2 East P. C. 711.


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