ing an evil intent without justifiable excuse.1 And Shaw, C. J., once in a Massachusetts case remarked, that, "in the ordinary sense in which it is used in statutes, it means not merely voluntarily,' but with a bad purpose; "2 in other words, it means corruptly.3

4

§ 263. Malice, malicious, maliciously, are words more purely technical in their legal use than "wilfully." "Malice aforethought" is a technical phrase, employed in indictments; and, with the word "murder," distinguishes the felonious killing called murder, from what is called manslaughter.5 In opinions of courts and other law writings, we frequently meet with language from which it might be inferred, that the word malice alone signifies the same thing as malice aforethought; but the better use makes a distinction, and assigns to the former a meaning somewhat less intense in respect of wickedness than to the latter. Malice, in legal phrase, is never understood to denote general malevolence, or unkindness of heart, or enmity toward a particular individual; but it signifies rather the intent from which flows any unlaw

1 The State v. Abram, 10 Ala. 928; Carpenter v. Mason, 4 Per. & D. 439, 12 A. & E. 629; McCoy v. The State, 3 Eng. 451; Chapman v. Commonwealth, 5 Whart. 427, 429.

• Commonwealth v. Kneeland, 20 Pick. 206, 220.

The State v. Gardner, 2 Misso. 23; Reg. v. Ellis, Car. & M. 564. See Trimble v. Commonwealth, 2 Va. Cas. 143.

* Ante, § 261.

51 Chitty Crim. Law, 243; Bouv. Law Dict. Malice Aforethought; Rex v. Nicholson, 1 East P. C. 346. But see, as to Arkansas, Anderson v. The State, 5 Pike, 444.

6 4 Bl. Com. 198, 199; 3 Greenl. Ev. § 144; Beauchamp v. The State, 6 Blackf. 299; Commonwealth v. Green, 1 Ashm. 289, 296.

'Reg. v. Griffiths, 8 Car. & P. 248; Anonymous, s. c. 2 Moody, 40. And see Wright v. The State, 9 Yerg. 342. As to the meaning of the words malice aforethought, see Reg. v. Tyler, 8 Car. & P. 616, 620; United States v. Cornell, 2 Mason, 60, 91; The State v. Will, 1 Dev. & Bat. 121, 163; Beauchamp v. The State, 6 Blackf. 299; The State v. Simmons, 3 Ala. 497.

ful and injurious act, committed without legal justification.1 A recent Massachusetts case decides, that the word "maliciously," in the statute against malicious mischief, is not suf ficiently defined as "the wilfully doing of any act prohibited by law, and for which the defendant has no lawful excuse;" but it means more.2 Sometimes malice is a mere inference of law from facts proved. Hence the distinction between express and implied malice.4

1 Commonwealth v. Snelling, 15 Pick. 337; The State v. Crawford, 2 Dev. 425, 428, 429; Commonwealth v. Green, 1 Ashm. 289, 296; Bromage v. Prosser, 4 B. & C. 247, 255; Dexter v. Spear, 4 Mason, 115; Commonwealth v. Bonner, 9 Met. 410; The State v. Doig, 2 Rich. 179; Reg. v. Tivey, 1 Den. C. C. 63; Rex v. Salmon, Russ. & Ry. 26; Respublica v. Teischer, 1 Dall. 335; Rex v. Reynolds, Russ. & Ry. 465; Rex v. Hunt, 1 Moody, 93; Griffin v. Chubb, 7 Texas, 603, 615; 2 Greenl. Ev. § 453. And see Taylor v. The State, 4 Ga. 14; McGurn v. Brackett, 33 Maine, 331; The State v. Pierce, 7 Ala. 728.

* Commonwealth v. Walden, 3 Cush. 558.

3 Worley v. The State, 11 Humph. 172; Commonwealth v. Green, 1 Ashm. 289, 296; Beauchamp v. The State, 6 Blackf. 299; The State v. Town, Wright, 75; 1 East P. C. 371.

* Anthony . The State, 13 Sm. & M. 263; Bromage v. Prosser, 4 B. & C. 247, 255, 256.

VOL. I.

26

[301]

CHAPTER XVIII

COMBINATION IN THE INTENT.

§ 264. WHERE several persons unite for the accomplishment of one object, all are responsible for what is done in concert. Therefore many may be criminal together for a thing performed by the physical volition of one. We shall have occasion, in pages further on, to consider the relations in such a case of the various parties to the crime; but there are some general views concerning the intent, to be noticed here. In the first place, if several, combining both in intent and in act, commit a crime jointly, each is guilty the same as if he had done the whole alone;1 and so it is, if each has his particular part to do, the whole contributing to one result.2 In the next place, since what a man does by his agent he does by himself,3 if one employs another to do a criminal thing for him, he is guilty the same as though he had done the thing himself. Nor is his guilt the less, if the agent does the act

1 People v. Mather, 4 Wend. 229, 259; Reg. v. Haines, 2 Car. & K. 368; Reg. v. Mazeau, 9 Car. & P. 676.

Rex v. Lockett, 7 Car. & P. 300; Reg. v. Nickless, 8 Car. & P. 757; Reg. v. Whittaker, 1 Den. C. C. 310; Reg. v. Hurse, 2 Moody & R. 360; Rex v. Standley, Russ. & Ry. 305; Reg. v. Gerrish, 2 Moody & R. 219; Rex v. Passey, 7 Car. & P. 282; Reg. v. Rogers, 2 Moody, 85, 2 Lewin, 119,

297.

Broom Leg. Max. 2d ed. 643.

United States v. Morrow, 4 Wash. C. C. 733; Reg. v. Williams, Car. & M. 259; Schmidt v. The State, 14 Misso. 137; Adams v. People, 1 Comst. 173; Commonwealth v. Stevens, 10 Mass. 181; Commonwealth v. Nichols, 10 Met. 259; Rex v. Dyson, Russ. & Ry. 523; The State v. Dow, 21 Vt. 484; Commonwealth v. Hill, 11 Mass. 136. And see Ewing v. Thompson,

equally from his own desires, or on his own account.1 And, finally, by deductions of this kind we come to the conclusion, that every man whose corrupt intent contributes to an evil act, in a degree sufficient for the law's notice,2 is in law a partaker of the crime. Thus all who by their presence countenance a riot or a prize-fight are liable as principal actors.4 So where a false pretence, by which goods are obtained, is spoken by one of several persons in the presence of the others who concur therein, all are jointly guilty of the crime.5 And if several conspire to seize with force a vessel, and run away with her, and death comes to one opposing the design, all present aiding and abetting are guilty of murder. The principle, that all whose wilts contribute to a criminal result are in law guilty, furnishes the leading test, sufficient ordinarily of itself, to determine, whether or not a person who did not himself perform a particular thing is to be held for it criminally.

§ 265. Obviously, if two or more persons are lawfully together, and one of them commits a crime, without the

13 Misso. 132; Caldwell v. Sacra, Litt. Sel. Cas. 118; Leggett v. Simmons, 7 Sm. & M. 348; ante, § 82, 159, 246.

1 Rex v. Russell, 1 Moody, 356; Ross v. Commonwealth, 2 B. Monr. 417.

2 Ante, § 235, 259; post, § 320–324.

Lord Mohun's case, Holt, 479; 1 East P. C. 89; Rex v. Plummer, J. Kel. 109, 114, 118; Rex v. Whithorne, 3 Car. & P. 394; United States v. Jones, 3 Wash. C. C. 209; The State v. Heyward, 2 Nott & McCord, 312; Howlett v. The State, 5 Yerg. 144; Reg. v. Howell, 9 Car. & P. 437; Collins v. Commonwealth, 3 S. & R. 220; The State v. Caldwell, 2 Tyler, 212; Reg. v. Swindall, 2 Car. & K. 230; Reg. v. Harris, Car. & M. 661; Green v. The State, 13 Misso. 382; Reg. v. Young, 8 Car. & P. 644; Rex v. Skerrit, 2 Car. & P. 427; Rex v. Douglass, 7 Car. & P. 644.

Rex v. Hunt, 1 Keny. 108; Rex v. Perkins, 4 Car. & P. 537; Rex v. Billingham, 2 Car. & P. 234; Rex v. Murphy, 6 Car. & P. 103; Rex v. Fursey, 6 Car. & P. 81; The State v. Straw, 33 Maine, 554; Williams v. The State, 9 Misso. 268. And see Reg. v. Young, 8 Car. & P. 644.

Young v. Rex, 3 T. R. 98.

* United States v. Ross, 1 Gallis. 624.

concurrence of the others, the rest are not thereby involved in guilt.1 So if they are unlawfully together; or if several persons are in the actual perpetration, by a concurrent understanding, of some crime; and one of them, of his sole volition, not in pursuance of the main purpose, does another thing, criminal, but in no way connected with this; he only is liable. Thus if numbers are in England poaching, and join in an attack on the gamekeeper, and leave him senseless,then, if one of them returns and steals the gamekeeper's money, this one alone can be convicted of the robbery. So if two persons have committed a larceny together, and one of the two suddenly wounds an officer attempting to arrest both; the other one cannot be convicted of this wounding, unless the two had conspired, not only to steal, but to resist also, with extreme violence, any who might attempt to apprehend them.4

§ 266. In like manner, if several are out committing a felony; and, upon an alarm, run different ways; and one of them, to avoid being taken, maims a pursuer; the others are not guilty parties in the mayhem. And in Alabama it was even held, treading close to the line of another distinction, if not beyond it, that, where two persons join in an assault, and

1 J. Kel. 47; 1 East P. C. 334; Anonymous, 6 Mod. 43; The State v. Stalcup, 1 Ired. 30; United States v. Jones, 3 Wash. C. C. 209, 223. And see Reg. v. Howell, 9 Car. & P. 437.

Rex v. Hodgson, 1 Leach, 4th ed. 6; Rex v. Hubson, s. c. 1 East P. C. 258; Rex v. Mastin, 6 Car. & P. 396; Rex v. Collison, 4 Car. & P. 565; Rex v. Hawkins, 3 Car. & P. 392; Rex v. Plummer, 1 J. Kel. 109, 111, 113;, United States v. Gibert, 2 Sumner, 19, 29; Rex v. Mcllhone, 1 Crawf. & Dix C. C. 156; Reg. v. Soley, 2 Salk. 594, 595; Anonymous, 6 Mod. 43; Rex v. Southern, Russ. & Ry. 444. And see Reg. v. Howell, 9 Car. & P..

437.

Rex v. Hawkins, 3 Car. & P. 392.

* Rex v. Callison, 4 Car. & P. 565. And see Reg. v. Howell, 9 Car. & P.

437.

Rex v. White, Russ. & Ry. 99.

• Post, § 267.