Michael Foster, perhaps the highest authority on the subject, says (p. 258): A. shooteth at the poultry of B., and by accident killeth a man; if his intention was to steal the poultry, which must be collected from circumstances, it will be murder by reason of that felonious intent; but if it was done wantonly, without that intention, it will be barely manslaughter.' It seems to us that the law upon this subject ought to be freed from the element of fiction introduced into it by the expression 'malice aforethought,' although the principle that murder may under certain circumstances be committed in the absence of an actual intention to cause death ought to be maintained. If a person intends to kill and does kill another, or if, without absolutely intending to kill, he voluntarily inflicts any bodily injury known to be likely to cause death, being reckless whether death ensues or not, he ought in our opinion to be considered a murderer if death ensues.

We have, accordingly, murder defined as follows (the italicizing being mine):

"Culpable homicide is murder in each of the following cases: "(a.) If the offender means to cause the death of the person killed; "(b.) If the offender means to cause to the person killed any bodily injury which is known to the offender to be likely to cause death, and if the offender, whether he does or does not mean to cause death, is reckless whether death ensues or not;

"(c.) If the offender means to cause death or such bodily injury as aforesaid to one person so that if that person be killed the offender would be guilty of murder, and by accident the offender kills another person, though he does not mean to hurt the person killed;

"(d.) If the offender for any unlawful object does an act which he knows or ought to have known to be likely to cause death, and thereby kills any person, though he may have desired that his object should be effected without hurting any one."

"SECT. 175

FURTHER (sic) DEFINITION OF Murder. Culpable homicide is also murder in each of the following cases, whether the offender means or not death to ensue, or knows or not that death is likely to ensue :

"(a.) If he means to inflict grievous bodily injury for the pur

I Report, pp. 23, 24.

pose of facilitating the commission of any of the offences hereinafter mentioned, or the flight of the offender upon the commission or attempted commission thereof, and death ensues from his violence;

"(b.) If he administers any stupefying thing for either of the purposes aforesaid, and death ensues from the effects thereof;

"(c.) If he by any means wilfully stop the breath of any person for either of the purposes aforesaid, and death ensues from such stopping of the breath."

In many respects this is a great amelioration of the common-law definition; but even in matters of substance I think that the specifications before us include at least one serious defect. Why should it be held murder, as it is declared to be in clause (d) of sect. 174, when a person in pursuit of an unlawful object unintentionally, and in fact against his wishes, kills another by an act which he (the offender) "ought to have known to be likely to cause death"? Is it not a settled principle that when malice is charged the charge cannot be sustained by proof of negligence; and that a death imputable to an ignorant though careless use by the offender of a dangerous instrument is therefore not malicious but negligent homicide? That ignorance of the potency or probable dangerous efficiency of an instrument is to be treated as negligence and not as malice is a principle at the foundation of penal jurisprudence. "Imperitia culpæ adnumeratur." "Lata culpa est nimia negligentia, — i.e., non intelligere quod omnes intelligunt." Coal-oil is unquestionably a dangerous agent; and there are certain kinds of coaloil sold, by reckless dealers, which cannot be safely carried about in exposed places in strong winds. That this is the case we may truly say every one who uses coal-oil ought to know; and on this assumption persons using such oil imprudently, thereby inflicting damage on the property of another, have frequently been held liable in civil suits. But a case would be driven out of court which charged negligence of this class as malice; and it is hard to understand why, on principle, the fact that the offender was at the time engaged in an unlawful act should turn negligence into malice, so as

to make an incidental homicide murder. A tramp, for instance, lights a lamp filled with burning-fluid, which he finds in the corner of a barn, for the purpose of searching for eggs. He upsets the lamp, and the stable is thereby fired, and death follows. He is without doubt guilty of an attempt to steal eggs; but, with as little doubt, the homicide imputable to him is not malicious, but negligent. The death that followed from his unlawful act was in no sense contemplated by him, and was an offence utterly different from that he really contemplated. Intending to steal an egg and intending to assassinate are so utterly separate, both as to heinousness and as to object, that were it not for the high authority before us I should say that it is absurd to couple them together as intents which, when tacked to a negligent collateral homicide, make that act murder.

I am sorry to have to dwell upon this exception, because (1) it is the single material blot on what I consider a fair though somewhat unduly verbose definition of homicide; and because (2) my object here is not to point out the few material defects in a code that contains many valuable features, but to argue that the code itself shows that, however excellent it may be as a foundation for judicial exposition, it must be regarded, not as taking the place of the common law and as affording a complete summary of all indictable offences, but as simply determining a series of questions which in the common law remain open. That this is all that it does, and that, so far from getting rid of the common law, it creates new and vast provinces, heretofore non-existent, for adjudication on common-law principles, I now propose to show.

Milton tells us of an "anarch old," who

"By decision more embroiled the fray."

In spheres very different from that of which Milton wrote the same result takes place; and in fact this is a logical necessity. There is no definition that does not require a series of subdefinitions; and if these subdefinitions are

settled by statute, each subdefinition will have to be subdefined, the number of questions opened multiplying with each new definition. So far, therefore, from a code being the extinguisher of common-law adjudication, it is the vivifier of common-law adjudication. It opens multitudes of common-law issues where it closes one. It is like the water-works attached to a stream for the purpose of turning its current into a city. The stream in its old channel is dammed up. There it no longer flows, unless through leaks which require new and independent action to repress. But it is turned into myriads of new channels, each calling for the greatest nicety in construction, in limitation, and restraint. That this will be the case with the code before us, as it has been with all other codes, secular and sacred, will be soon seen.

The first point to be noticed of formal (as distinguished from material) criticism, among the several that I have italicised in the clause just quoted, is that which makes it murder to "cause the death" of the person killed. "Cause" is undoubtedly used in other statutes, and in connection with such statutes it has received a definite construction. But it has never been used in statutes defining homicide; and when the question comes up what "causing homicide" is, we have opened to us a series of most difficult issues. It is easy to see how the introduction of this single phrase may lead to litigations not only numerous but intricate. Is there such a thing as "nervous causation," as Sir J. Stephen seems to intimate in his comments, in his Digest of Criminal Law, on the discussion of that topic in my work on Homicide? Are we to go so far as to hold, with the Supreme Court of Massachusetts, that a person who shoots a gun with the intention of alarming a nervous person is indictable for injuries to such person consequent on such alarm? Are we to hold, with an authoritative English judge, that to frighten a child so that it jumps from its nurse's arms, the object hav2 The Commonwealth v. Wing, 9 Pick. I.

I

Steph. Dig., art. 219.

ing been only to assault the nurse, makes the party producing the fright responsible for the child's subsequent death?1 Are we, on the one side, to limit this kind of causation to cases in which death follows from an injury self-inflicted by a party trying to escape from a dangerous attack? Or, on the other side, are we to expand it so as to include all cases in which death follows from nervous prostration or terror produced by another's acts? Between these two lines of cases there are almost innumerable questions likely to be provoked by the introduction of the word "cause." At common law these cases are now virtually determined. But we are now no longer dealing with the common law, nor are we dealing with the term "cause" in connection with material effects, such as coining. We are dealing with causation in its largest and most abstruse and mysterious sense. What “causes" death? Where, under a statute that makes him who "causes" death indictable, will we draw the line between physical and nervous or moral causation? And how can we do otherwise than conclude that, instead of closing litigation in this relation by an exhaustive and complete definition, we are opening to litigation a new area of almost boundless extent?

The next point to be noticed is that italicized under clause (6). When a bodily injury “is known to the offender as likely to cause death," then the inflicting of this injury, when fatal, is murder, when the defendant is "reckless whether death ensues or not." At common law, when the intent is to inflict grievous bodily harm, and death follows, the offence is murder, and under our American statutes it is usually murder in the second degree. What intent is, we have numerous adjudications to determine; and the result to which we are thus led is, that when from all the facts of the case it is to be inferred beyond reasonable doubt that the offender intended the guilty act, then such intent is to be imputed to him. But not even the most adventurous of

I Rex v. Towers, 12 Cox C. C. 530.