an offense at common law. The case of Regina v. Pembliton has been since, in some degree, confirmed in Regina v. Welch.1 I shall, as I have said, under the circumstances of the case before us, act on the authority of Regina v. Pembliton, without pledging myself to adopt its reasoning or conclusion under a different state of facts. It has been, however, contended that Regina v. Pembliton is distinguishable from the present case. It was said, first, that the original act of the prisoner in that case was not felonious, and secondly, that the offense charged was not a felony, and that therefore the old authorities upon which the Crown now relies did not apply in that case. How far both or either of these distinctions are to be regarded at the present day, I do not stop to consider; it is sufficient to say that the decision of the Court of Criminal Appeal in England was based upon no such distinction. But, it was, secondly, contended that, as in that case it was suggested by the judge that a reckless disregard by the prisoner of the obviously probable consequences of his own act might constitute the requisite "malice," and justify a jury in finding that such act was willful and malicious within. the statute; so it was here shown, and the wording of the case as originally stated assumed that the question of recklessness and so forth was left by the judge to the jury, or spontaneously considered by them, and decided in the affirmative against the prisoner. It was perhaps possible that upon a critical analysis of the very words of the original case they were consistent with a possibility that such a question was presented to the jury; but, reading the case I was, upon its construction, convinced that no such question was considered by the jury. It was not pretended by the Crown counsel that, as a matter of fact, such a question was even suggested at the trial, and we have sitting here with us, the judge who tried the case to tell us that no such issue was raised. If such an issue had been raised, it would have been according to Mr. Justice Blackburn, whether the prisoner "knew that the natural consequences of his act would be to fire the ship; and whether although that was not his wish yet he was reckless whether he did it or not; " and I am of opinion that the evidence would probably not have justified the jury in finding the issue against the prisoner. I would, therefore, have declined to sustain the conviction upon the assumption (based upon the phraseology of the case originally stated) that an issue was considered by the jury which I know, as a fact, was not considered by them, and which, if considered by them, ought probably to have been determined in favor of the prisoner. All difficulty, however, on this branch of the argument is removed by the amendments made in the case by the learned judge, who reserved it for our consideration. The jury, were, in fact,

1 2 Q. B. D. 23.

directed to give a verdict of guilty upon the simple ground, that the firing of the ship, though accidental, was caused by an act done in the course of, or immediately consequent upon, a felonious operation, and no question of the prisoner's malice, constructive or otherwise, was left to the jury. I am of opinion, that according to Regina v. Pembliton, that direction was erroneous and that the conviction should be quashed.

FITZGERALD, J. I concur in opinion with my brother BARRY, and for the reasons he has given, that the direction of the learned judge can not be sustained in law, and that therefore the conviction should be quashed. I am further of opinion that in order to establish the charge of felony under section 42, the intention of the accused forms an element in the crime to the extent that it should appear that the defendant intended to do the very act with which he is charged, or that it was the necessary consequence of some other felonious or criminal act in which he was engaged, or that having a probable result which the defendant foresaw, or ought to have foreseen, he nevertheless, persevered in such other felonious or criminal act. The prisoner did not intend to set fire to the ship. The fire was not the necessary result of the felony he was attempting; and if it was a probable result, which he ought to have foreseen, of the felonious transaction in which he was engaged, and from which a malicious design to commit the injurious act with which he is charged might have fairly imputed to him, that view of the case was not submitted to the jury. On the contrary, it was excluded from their consideration on the requisition of the counsel for the prosecution. Counsel for the prosecution in effect insisted that the defendant, being engaged in the commission of, or in an attempt to commit a felony, was criminally responsible for every result that was occasioned thereby, even though it was not a probable consequence of his act or such as he could have reasonably foreseen or intended. No authority has been cited for a proposition so extensive, and I am of opinion that it is not warranted by law. Referring to the statute on which the prisoner is charged, it is to be observed, that in several instances, the sections. creating substantive felonies are followed by others making an attempt to do the same thing also a felony. Now, it is obvious, that an attempt to do a particular thing necessarily involved the intention to commit the act. If, in the case before us, the burning rum had been extinguished before the ship took fire, could it be contended that an indictment for a willful and malicious atttempt to set fire to the ship could have been maintained?

FITZGERALD, B. I am of opinion that the direction of the learned judge at the trial was wrong, and that the conviction can not be sus

tained. There can, I think, be no doubt that malice or malicious intent (which seem to me to mean the same thing) is an essential part of the felony charged in the indictment. In this case I am of opinion that, while the question of the particular malicious intent of burning the vessel was expressly withdrawn from the jury, the question of malice or malicious intention was not left to the jury at all. Upon the matters in fact, stated in the case to have been proved, I am of opinion that the jury might, though the question of such particular malicious intent was withdrawn from it, most reasonably have found the malice or malicious intent necessary as an element of the crime charged, but I do not think that the judge was warranted in affirming it as an inference of law. This, it appears to me, the judge has done in directing the jury, that, "if the fire took place in the manner above stated," which I understand to mean if over and above believing that the prisoner was engaged in stealing the rum," the jury also believed to be true the matters of fact stated in the case to have been proved, the jury ought to find him guilty. The utmost which I can conceive the jury to have found over and above the facts stated is, that at the time when the prisoner set fire to the ship he was actuated by a felonious intent, which no doubt is malice; but I must take this not to have been the particular malicious intent of burning the vessel, but the particular felonious intent, which is an element of larceny. Its whole force, therefore, in the present case (if any), is as evidence of malice in general - that is to say, as showing the mens mala or fellea, any particular malicious intent is evidence conclusive of the mens mala or malice, though the mens mala may exist in the absence of innumerable particular malicious intent. In my opinion, this general malice might have been sufficiently connected with the overt act in this case, from which the injury resulted, if the jury had found that the injury was a reasonable consequence that is to say, a consequence which any man of reason might have anticipated as probable of an act or acts, or some or one of them, which formed the res gesto of the felony which the prisoner is found to have been committing, since the consequence is not to be remote. The very object of the amendment which has been made in this case, as I understand it, is to show that this question was not left to the jury. Now, however clearly I may be satisfied that the jury ought, as a matter of fact, if the question had been left to it, to have found that the injury was the reasonable consequence of an act or acts done with a felonious intent, I can not draw the conclusion as a matter of law. I am only anxious that it should be understood that this case can not be understood as deciding that general malice, if conclusively proved and found by the jury to apply to the overt act, which is the corpus delicti, will not give it the form of crime which is the subject of indictment in a case like the present,

have been performed on Saturday, and the defendant, by his neglect, created the necessity for the work on Sunday, then he would not be excused; for the law requires that men should make all reasonable preparation for Sunday so as to avoid the necessity of labor on that day. To create a legal necessity the work must have been such as could not reasonably have been done on a previous week day, or be reasonably postponed until a future day. If it was not proper for the defendant to feed his hogs on Saturday enough to last them over Sunday, and thereby materially lessened the labor to be performed on Sunday, it was his duty to do so; and if he neglected such needful preparation and gathered and hauled the corn on Sunday, the work of gathering and hauling the corn on Sunday would not be a work of necessity, although feeding it to his hogs would be." We do not think this instruction is the true interpretation of the law. It directly states to the jury what labor would not be a work of necessity. This is a question of fact for the jury to decide and not a question of law for the court to declare. Whether a work is a work of necessity or not must necessarily depend upon the facts in each case. Sometimes a similar state of facts would be a work of necessity, and sometimes not; the question therefore can not be reduced to a proposition of law which is uniform and applicable to all cases alike. The principle was properly expressed by Howk, J., in the case of Wilkinson v. State, namely: "Labor performed on Sunday which is necessary under any particular state of circumstances for the accomplishment of a lawful purpose, is not a violation of the Sunday law," to which we may add in this case, that whenever labor is lawful and necessary to be done, then the usual and proper means by which it is done will also be necessary and lawful. It can not be doubted as matter of fact that to feed hogs on Sunday is a lawful and necessary work; now, if according to the circumstances, the usual and proper means to feed them according to the practice of good husbandry, was to gather the corn daily, and haul it to the pen and give it to the ĥogs, then gathering and hauling the corn and feeding the hogs on Sunday would not be unlawful; and whether such a method of feeding hogs on Sunday is a work of necessity or not must, in each case, be left to the jury to decide as a question of fact.”

We can not see anything in this evidence out of the ordinary way in feeding hogs, in the fall of the year, before the corn is ripe enough to crib, as practiced generally in the State of Indiana by good husbandmen. The work of feeding the hogs on Sunday being lawful and necessary, the manner of feeding them taking into the view the time of year, the condition of the corn, the place where the corn was, and where the hogs were also become lawful and necessary; and the work thus being lawful and necessary, it was lawful and necessary to feed them on Sunday in the same manner that would be necessary and proper, according to the circumstances, to feed them on a week day. The evidence is so clearly insufficient that we can not approve the verdict. A work of necessity within the meaning of the statute, does not mean a physical or absolute neces. sity; but a moral fitness or propriety in the work done, under the circumstances of each particular case, may be deemed a work of necessity, within the meaning of the law. Nor need the necessity be dangerous to life, health or property, which is beyond human foresight or control. On the contrary, the necessity may grow of, or be incident to a particular trade or calling, and yet be a work

1 59 Ind. 416; 26 Am. Rep. 84.

their verdict upon the ground that in their opinion the prisoner may have expected that the fire would be the consequence of his act in stealing the rum, but nevertheless did the act recklessly, not caring whether the fire took place or not. But at the trial there was not even a suggestion of any such ground, and we can not assume that the jury formed an opinion which there was no evidence to sustain, and which would be altogether inconsistent with the circumstanses under which the fire took place. The reasonable inference from the evidence is that the prisoner lighted the match for the purpose of putting the spile in the hole to stop the further running of the rum, and that while he was attempting to do so the rum came in contact with a lighted match and took fire. The recent case of Regina v. Welch,1 has been also referred to, and has been relied on by the Crown counsel on the ground that, though the jury found that the prisoner did not, in fact, intend to kill, maim, or wound the mare that had died from the injury inflicted by the prisoner, the prisoner was, nevertheless, convicted on an indictment charging him with having unlawfully and maliciously killed, maimed, or wounded the mare, and such conviction was upheld by the court. But on referring to the circumstances of that case it will be seen that the decision in it does not in any way conflict with that in the previous case of Regina v. Pembliton, and furnishes no ground for sustaining the present conviction. Mr. Justice Lindley who tried that subsequent case, appears to have acted in accordance with the opinion expressed by the judges in Regina v. Pembliton. Besides leaving to the jury the question of prisoner's intent, he also left them a second question, namely, whether the prisoner, when he did the act complained of, knew that what he was doing would or might kill, maim, or wound the mare, and nevertheless did the act recklessly, and not caring whether the mare was injured or not. The jury answered that second question in the affirmative. Their finding was clearly warranted by the evidence, and the conviction was properly affirmed. By those two questions a distinction was taken between the case of an act done by a party with the actual intent to cause the injury inflicted, and the case of an act done by a party knowing or believing that it would or might cause such injury, but reckless of the result whether it did or did not. In the case now before us there was no ground whatever for submitting to the jury any question as to the prisoner believing or supposing that the stealing of the rum would be attended with a result so accidental and so dangerous to himself. During the argument doubts were suggested as to the soundness of the decision of Regina v. Pembliton; but in my opinion that case was rightly decided, and should be followed. Its authority

1 13 Cox, C. C. 121.