would lie. For a crime does not of necessity and in all circumstances require a greater evil of intent than a civil tort.2 So that when one meaning only a civil, or even only a moral wrong, does accidentally an unintended act to the public detriment, of sufficient magnitude and altogether of the kind punishable as crime, this result subjects the doer to indictment. But § 331. Intent to be Malum in Se. - In these cases of an unintended evil result, the intent whence the act accidentally sprang must probably be, if specific, to do a thing which is malum in se and not merely malum prohibitum.3 Thus Archbold says: "When a man in the execution of one act by misfortune or chance, and not designedly, does another act for which if he had wilfully committed it he would be liable to be punished, in that case, if the act he was doing were lawful, or merely malum prohibitum, he shall not be punishable for the act arising from misfortune or chance; but if malum in se it is otherwise."5 To illustrate, — --- § 332. 1. To violate Game Laws (Homicide). Since it is malum prohibitum, not malum in se, for an unauthorized person to kill game in England contrary to the statutes, if, in unlawfully shooting at game, he accidentally kills a man, it is no more criminal in him than if he were authorized.6 But 2. To shoot at Another's Fowls, wantonly or in sport, an act which is malum in se, though only a civil trespass, and thereby accidentally to kill a human being, is manslaughter. If the intent in the shooting were to commit larceny of the fowls, we have seen that it would be murder.8 1 See ante, § 327, note. 2 Ante, § 235, 236. 3 Reg. v. Plummer, 1 Car. & K. 600; Reg. v. Packard, Car. & M. 236; C. v. Dana, 2 Met. 329; C. v. Cone, 2 Mass. 132; C. v. Judd, 2 Mass. 329, 3 Am. D. 54; 1 East P. C. 255, 257, 260; Eden Penal Law, 3d ed. 227; ante, § 210, 286. This doctrine, like many others necessary to be stated in the text, is the combined result of general principles and specific authorities, but it is in no case fully set down in words. 4 Archb. New Crim. Pro. 9. 51 Hale P. C. 39; Foster, 259; Roscoe Crim. Ev. 710. Meaning of Malum in Se Maintenance. - As to what is malum in se, the Ohio Court while con sidering maintenance and champerty said: "It is alleged that such contracts were never considered as mala in se. This will depend on determining whether they be perfectly indifferent in themselves, or whether they involve any degree of public mischief or private injury. If the latter, they must belong to the class of actions denominated mala in se, as this appears to be the distinction recognized by the best writers on criminal law." And so the judges considered that maintenance is malum in se. Key v. Vattier, 1 Ohio, 132, 147. 61 East P. C. 260; Roscoe Crim. Ev. 710. § 333. Further of Malum in Se. - This so formal distinction between malum in se and malum prohibitum is not quite apparent in principle, though something like it is. If any law, statutory or common, prohibits a thing, one can hardly be said to intend innocently the doing of it; and should the intent to do it exist while casually the act terminates in a criminal result not intended, there seems in principle to be a completed crime. Still, as in these cases the intent may be sufficient though it is to inflict only a civil injury, so doubtless there may be circumstances wherein it will be inadequate when it is to do what would be indictable if done. The evil of the intent may be too small in degree, or it may be wanting in other respects. And into the consideration of a case in this aspect, the distinction of malum prohibitum and malum in se might well enter.3 § 334. 1. How Intense the Evil- of the intent must be, to infuse the bane of criminality into the unintended act, it is not easy to state in a word. Evidently there may be cases wherein, as just intimated, it is too minute in evil for the law's notice, the same as where the act is its true echo, and where the culpability consists in carelessness. So also, — - 2. Degree of Crime. As the evil intended is the measure of a man's desert of punishment, and the wrong inflicted on society is the measure of its right to punish him, and there can be no punishment except where the two combine, it follows that in offences divided into higher and lower degrees, like murder and manslaughter in felonious homicide, the guilt of the unintending doer must be assigned to the higher or lower degree according as his intent was more or less intensely wrong. And it is reasonable that where there is no low degree of a very aggravated offence, the law, leaning to mercy, should refuse to recognize as within it some cases which would be so regarded if there were a low degree. Thus, 3. Homicide Arson. We have seen that unlawfully but not feloniously to shoot at the poultry of another, and thereby accidentally to kill a human being, is manslaughter; to do the same 4 thing with the felonious intent to steal the poultry is murder.1 On the other hand, if the charge from the gun instead of killing the man set his house on fire, the burning would be arson only when the intent was to steal; while, if the intent was simply to execute a civil trespass, no offence would be committed,2 the law having no low degree of arson. But the distinction last mentioned is very technical; and possibly our American courts will not recognize it to its full extent. Again, 4. Assaults on Foreign Ministers are heavier offences than on our own private citizens. Thereupon one assaulting a foreign minister in ignorance of his official character has been held, in spite of the ignorance of fact, to commit the graver crime.3 And still an indictment for assaulting one of our own officers should charge the defendant with knowledge of his official character. These two propositions seem not entirely to harmonize; yet the just explanation may be that it is culpable carelessness not to know the high position of the diplomatic representative of a foreign power, or that the rule which assumes such knowledge is an essential element in the law of international courtesy. § 335. Offences requiring Special Intent. doctrine of the transfer of the intent to the unintended act, it is applicable only to crimes flowing from general malevolence, not to those which are constituted only where there are two intents,5 or a specific one intent. - In the nature of this § 336. In Conclusion, in explaining the very delicate and intricate topic of this chapter, the author has been obliged to confine himself largely to general doctrines, descending less into their special applications. Much of the latter will better. appear in connection with the several offences. While most of the principles here brought to view are established beyond the contingency of overthrow, and all seem, just, possibly some courts may discard or modify some of them ;/as, for example, by requiring the act toward the proposed crime to have a natural tendency to produce the unintended result./ This distinction would leave. 1 Ante, § 328; Eden Penal Law, 3d ed. 227. 2 Roscoe Crim. Ev. 272; 2 East P. C. 1019. 8 U. S. v. Liddle, 2 Wash. C. C. 205; U. S. v. Ortega, 4 Wash. C. C. 531; U. S. v Benner, Bald. 234, 240. But see U. S. v. Hand, 2 Wash. C. C. 435. 4 C. v. Kirby, 2 Cush. 577. 6 Fairlee v. P. 11 Ill. 1; Rex v. Simmons, 1 Wils. 329; Rex v. Webb, 1 W. Bl. 19, Rex v. Summers, 3 Salk. 194; P. v, Griffin, 2 Barb. 427; Rex v. Scofield, Cald. 397, 403. unimpaired the doctrine that an attempt to murder a particular person, yet taking effect on the life of another, constitutes murder of the latter; but, on the other hand, we have an Irish case where a sailor went into a part of the ship in which spirits were kept, and, while tapping a cask to steal rum, accidentally and not meaning to burn the ship got his match in contact with the flowing liquor whereby a conflagration was created destroying the vessel, the majority of the Irish Court of Crown Cases Reserved held that the offence was not a statutory arson.2 This doctrine can hardly be deemed sound in principle when applied to offences not requiring a specific evil intent. The reasons have already been given. The Massachusetts Court has held that one does not commit assault and battery in driving over a person merely because his speed exceeds what is allowed by a city ordinance.1 But this does not contravene general doctrine. 1 Ante, § 328; Washburn v. S. 25 Ohio St. 601; S. v. Gilman, 69 Me. 163, 31 Am. R. 257; S. v. Dugan, 1 Houst. Crim. 563; S. v. Johnson, 7 Or. 210; S. v. Raymond, 11 Nev. 98. And see Reg. v. Bradshaw, 14 Cox C. C. 83; S. v. Sloanaker, 1 Houst. Crim. 62; S. v. Brown, 1 Houst. Crim. 539. 2 Reg. v. Faulkner, 13 Cox C. C. 550, Ir. Rep. 11 C. L. 8, 19 Eng. Rep. 573. The case mostly relied on by the majority was the English one of Reg. v. Pembliton, Law Rep. 2 C. C 119, 12 Cox C. C. 607, referred to in Reg. v. Welch, 1 Q. B. D. 200 23, 13 Cox C. C. 121, both for malicious mischief. But the reader in considering these cases should bear in mind (what the Irish judges did not) that the malice in malicious mischief, unlike arson, is gen erally held to be special malice to the owner particularly, and not general malice. Yet a present English statute perhaps renders this consideration unimportant. Vol. II. § 996, 997. 8 Ante, § 327. 4 C. v. Adams, 114 Mass. 323, 19 Am. R. 362. CHAPTER XXII. MORE INTENTS THAN ONE OPERATING TOGETHER. § 337. Numerous Motives to One Act. In the affairs of life, it is seldom a man does any one thing prompted by one motive alone, to accomplish one end. As, in the material world, all the laws of nature are constantly operating together; so, in the world of human existence, all the motives about a man are continually exerting their power upon him. Not in either of these worlds do the impulses come singly, and single results follow. § 338. Law's Motives. As general truth, the criminal law does not take cognizance of all the motives of men, but only of the particular ones within its jurisdiction, just as it does not assume control over all their acts. And it is immaterial what motives operated on the mind of an accused person, or what were inoperative, provided the law's motives did or did not sway him. Hence, § 339. Surplus Intents. If, moved by more intents than one, a man does what the law forbids, some of the intents being elements in the crime and others not, the latter do not vitiate the former, which in their consequences are the same as though they stood alone.2 Thus, § 340. 1. Demolishing House.- Under the English statutes against demolishing houses, if one object of an attacking mob is to injure a person in the house, yet if an inferior object is to demolish it, the offence is committed because of this inferior intent. So, 1 Ante, § 10, 11. 2 Rex v. Cox, Russ. & Ry. 362; Reg. » Hill, 2 Moody, 30; Rex v. Batt, 6 Car. & P. 329, Reg. v. Johnson, 11 Mod. 62; Reg. v. Geach, 9 Car. & P. 499; Rex v. Hayward, 1 Russ. Crimes, 3d Eng. ed. 729, Russ. & Ry. 78; C. v. McPike, 3 Cush. 181, 50 Am. D. 727; S. v. Cocker, 3 Harring Del. 554, S. v. Moore, 12 N. H. 42; Rex v. Davis, 1 Car. & P. 306; P. v. Carmichael, 5 Mich. 10, 71 Am. D. 769; P. v. Adwards, 5 Mich. 22; Reg. ". Hamp, 6 Cox C. C. 167. See Reg. v. Doddridge, 8 Cox C. C. 335. 8 Rex v. Batt, 6 Car. & P. 329; Reg. v. Howell, 9 Car. & P. 437; Rex v. Price, 5 Car. & P. 510. |