was somewhat doubted, for he had no intent to poison his daughter, nor had he any malice against her, but on the contrary he had a great affection for her, and he did not give her the poison, but his wife ignorantly gave it her, and although he might have taken it from the daughter, and so have preserved her life, yet the not taking it from her did not make it felony, for it was all one whether he had been present or absent, as to this point, inasmuch as he had no malice against the daughter, nor any inclination to do her any harm. But at last the said justices, upon consideration of the matters, and with the assent of Saunders, Chief Baron, who had the examination of the said John Saunders before, and who had signified his opinion to the said justices (as he afterwards said to me) were of opinion that the said offense was murder in the said John Saunders. And the reason thereof (as the said justices and the chief baron told me) was because the said John Saunders gave the poison with an intent to kill a person, and in the giving of it he intended that death should follow. And when death followed from his act, although it happened in another person than her whose death he directly meditated, yet it shall be murder in him, for he was the original cause of the death, and if such death should not be punished in him, it would go unpunished. And therefore it is every man's business to foresee what wrong or mischief may happen from that which he does with an ill intention, and it shall be no excuse for him to say that he intended to kill another, and not the person killed. For if a man of malice prepense shoots an arrow at another with an intent to kill him, and a person to whom he bore no malice is killed by it, this shall be murder in him, for when he shot the arrow he intended to kill. But the most difficult point in this case, and upon which the justices conceived greater doubt than upon the offense of the principal, was,

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"Whether or no Archer Should be Adjudged Accessory to the murder. For the offense which Archer committed was the aid and advice which he gave to Saunders, and that was only to kill his wife, and no other, for there was no parol communication between them concerning the daughter, and although by the consequences which followed from the giving of the poison by Saunders, the principal, it so happened that the daughter was killed, yet Archer did not precisely procure her death, nor advise him to kill her, and therefore whether or no he should be accessory to this murder which happened by a thing consequential to the first act, seemed to them to be doubtful. Upon conference before had with the justices of both benches, they were agreed that they ought not to give judgment against the said Alexander Archer, because they took the law to be that he could not be adjudged accessory to the said offense of murder, for that he did not assent that the daughter should be poisoned, but only that the wife should be poisoned, which assent cannot be drawn further than he gave it, for the

*

poisoning of the daughter is a distinct thing from that to which he was privy, and therefore he shall not be adjudged accessory to it; and so they were resolved before this time. And although they were so agreed, yet, rather than make a precedent of it, they reprieved him from one session to another for divers sessions, to the intent that he might purchase his pardon.

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"Note, it seems to me reasonable that he who advises or commands an unlawful thing to be done shall be adjudged accessory to all that follows from that same thing, but not from any other distinct thing. As if I command a man to rob such a one, and he attempts to rob him, and the other defends himself, and a combat ensues between them, and the person attempted to be robbed is killed, I shall be accessory to this murder, because when he attempted to rob him, he pursued my command, and then when he pursued my command, and in the execution thereof another thing happened, I ought in reason to be deemed a party therein, because my command was the cause of it." Saunders's Case, 2 Plowd. Com. 473, C. 176, Mi. 490.

(Eng. C. C. R., 1612.) Same-Poisoned Electuary. Roper's daughter, Agnes, married Gore; Gore became sick; Roper went to Dr. Gray for advice; who gave him a prescription to apothecary Martin; who prepared it as ordered, with one change, for want of that ingredient; Agnes secretly added ratsbane to it to kill her husband, and gave him part of it, on which he became very sick; Roper took some, and also became sick immediately; next day C took some and likewise became sick; but they all recovered. Observing these results, Roper took it to Dr. Gray complaining; who sent for Martin to explain; who said it was as ordered with one change; which Dr. Gray approved; then Martin said, "To the end you may know that I have not put anything in it which I myself will not eat, I will before you eat part of it;" and thereupon he took the box, stirred it with his knife, ate some of it, and died next day. The question was on all this matter if Agnes had committed murder. And this case was delivered in writing to all the judges of England, for their opinion. The doubt was because Martin himself, of his own motion, not only ate of it, but stirred it and so incorporated the poison that it was more forcible than as Agnes made it; for those who ate before lived, but Martin's mixing it made it fatal. If this fact would distinguish the case from Saunders's Case, Plow. Com. 473, was the question. And it was resolved by all the judges that Agnes was guilty of the murder of Martin; for the law conjoins the murderous intent of Agnes in putting the poison into the electuary to kill her husband with the event which thence ensued, viz., the death of Martin; for the putting of the poison into the electuary was the occasion and cause, and the poisoning and death of Martin the event; and without the poison put in by Agnes, death would not have been caused

by Martin stirring it. Gore's Case, 9 Coke 81a, B. 209, C. 182, Mi. 557.

(S. Car. Ct. of App. and Errors, 1847.) Accidental ShotImplied Malice. Appeal from conviction of murder, on evidence that defendant fired toward Carter in a crowd, intending to make his horse throw him, but killed a negro boy. The court charged the jury that if defendant shot to throw Carter from his horse, the killing of the boy was murder. "If the act which produced the death be attended with such circumstances as are the ordinary symptoms of a wicked, depraved, and malignant spirit, the law, from these circumstances, will imply malice, without reference to what was passing in the prisoner's mind at the time he committed the act. If one were to fire a loaded gun into a crowd, or throw a piece of heavy timber from the top of a house into a street filled with people, the law would infer malice from the wickedness of the act: so also, the law will imply that the prisoner intended the natural and probable consequence of his own act; as, in the case of shooting a gun into a crowd, the law will imply, from the wantonness of the act, that he intended to kill some one, although it might have been done in sport. If the prisoner's object had been nothing more than to make Carter's horse throw him, and he had used such means only as were appropriate to that end, then there would be some reason for applying to his case the distinction that, where the intention was to commit only a trespass or a misdemeanor, an accidental killing would be only manslaughter. But in this case the act done indicated an intention to kill; it was calculated to produce that effect, and no other; death was the probable consequence, and did result from it; and I am of opinion there was no error in the charge of the circuit judge that, if the prisoner shot at Carter, the crime was murder, although the prisoner may have designed only to do Carter 'some serious injury, as the falling from his horse.' The motion is therefore dismissed." Per EVANS, J. S. v. Smith, 2 Strobh. 77, 47 Am. Dec. 589, B. 468, F. 59.

(Mass. Sup. Judicial Ct., 1877.) Same-Attempting Suicide. On trial of defendant under indictment for murder of Charles Ricker, the defense was that when Ricker told defendant he would not keep his promise to marry her she became despondent, took a pistol from her trunk to kill herself, and in his struggles to get possession of it, he was accidentally shot; and the court instructed the jury that if they believed the defendant's story they should find her guilty of manslaughter, though she had no intention to kill deceased. The jury found her guilty of manslaughter, and * GRAY, C. J. * she excepted to the instruction. By the common law of England, suicide was considered a crime against the laws of God and man, the goods and chattels of the criminal were forfeited to the king, his body had an ignominious burial in

the highway, and he was deemed a murderer.

Since it

has been provided by statute that "any crime punishable by death or imprisonment in the state prison is a felony, and no other crime shall be so considered," it may well be that suicide is not technically a felony in this commonwealth. Gen. Sts. c. 168, § 1; St. 1852, c. 37, § 1. But being unlawful and criminal as malum in se, any attempt to commit it is likewise unlawful and criminal. Every one has the same right and duty to interpose to save a life from being so unlawfully and criminally taken, that he would have to defeat an attempt unlawfully to take the life of a third person. Fairfax, J., in 22 E. IV. 45, pl. 10; Marler v. Ayliffe, Cro. Jac. 134; 2 Rol. Ab. 559; 1 Hawk. c. 60, § 23. And it is not disputed that any person who, in doing or attempting to do an act which is unlawful and criminal, kills another, though not intending his death, is guilty of criminal homicide, and, at the least, of manslaughter. The only doubt that we have entertained in this case is, whether the act of the defendant, in attempting to kill herself, was not so malicious, in the legal sense, as to make the killing of another person, in the attempt to carry out her purpose, murder, and whether the instructions given to the jury were not therefore too favorable to the defendant. Exceptions overruled. C. v. Mink, 123 Mass. 422, 25 Am. Rep. 109, B. 206, C. 104, Ke. 110, Kn. 170.

(Mass. Sup. Judicial Ct., 1873.) Constructive Intent from Statutory Offense. Assault and battery. Defendant had pleaded guilty of driving faster than the Boston ordinance allowed, and the court instructed the jury on this trial for knocking down a boy in the street while so driving, that intent to violate the ordinance supplied the intent necessary to sustain assault and battery. ENDICOTT, J. We are of opinion that the ruling in this case cannot be sustained. It is true that one in the pursuit of an unlawful act may sometimes be punished for another act done without design and by mistake, if the act done was one for which he could have been punished if done wilfully. But the act, to be unlawful in this sense, must be an act bad in itself, and done with an evil intent; and the law has always made this distinction, that if the act the party was doing was merely malum prohibitum, he shall not be punishable for the act arising from misfortune or mistake; but if malum in se, it is otherwise. 1 Hale P. C. 39; Foster C. L. 259.

* It was held in C. v. Worcester, 3 Pick. 462, that proof only of the fact that the party was driving faster than the ordinance allowed was sufficient for conviction. See C. v. Farren, 9 Allen 489 [§ 53]; C. v. Waite, 11 Allen 264 [87]. It is therefore immaterial whether a party violates the ordinance wilfully or not. The offense consists, not in the intent with which the act is done, but in doing the act prohibited, but not otherwise wrong. It is obvious, therefore, that the violation of the ordinance does not in itself supply the intent to do another act which requires a crimi

nal intent to be proved. The learned judge erred in ruling that the intent to violate the ordinance in itself supplied the intent to sustain the charge of assault and battery. The verdict must therefore be set aside, and a new trial granted. C. v. Adams, 114 Mass. 323, 19 Am. Rep. 362, B. 204, Kn. 28, Mi. 160.

(N. J. Sup. Ct., 1889.) Malum Prohibitum-Running by TollGate. Defendant attempted to drive by a toll-gate without paying. The keeper caught the team by the harness and was thrown down, run over, and killed, and defendant was convicted of manslaughter. The court instructed the jury that, if defendant knew he was at the gate and intended to go through without paying toll; and that the keeper caught hold of the team, which then being urged by defendant, or through fright, went so fast that the keeper was thrown down, run over, and killed, defendant was guilty. "The act of the defendant in making this attempt, in the exercise of due care, was, at its worst, merely malum prohibitum, and was in itself devoid of a dangerous tendency, and therefore was not criminal. The mere unlawfulness of the act does not, in this class of cases, per se, render the doer of it liable in criminal law, for all the undesigned and improbable consequences of it. *

Bishop Cr. L. § 258. In this case the jury should have been told that the defendant was guilty as charged if he did the unlawful act in question under conditions that were dangerous to the toll-gate keeper; as if he drove through the gate at a rapid pace, or urged his team of mules on after they bad been seized by the deceased." Per BEASLEY, C. J. Reversed. Estell v. S., 51 N. J. L. 182, 17 Atl. 118.

(Eng. Assize at Sussex, 1883.) A Mere Civil Wrong intended to a refreshment stall keeper, by wantonly taking a large box from the stall on the pier and throwing it into the sea, was held insufficient constructive intent to sustain an indictment for manslaughter resulting from the box falling on a bather in the sea and killing him; but the defendant was convicted by the jury on the ground of negligence. Before FIELD, J. Mathew, J., concurring. R. v. Franklin, 15 Cox C. C. 163, B. 203, C. 105, Ke. 118, Mi. 158.

§ 39. "Natural Consequence."

(Eng. C. C. R., 1877.) Constructive Intent-Burning Ship. Robert Faulkner was indicted for setting fire to the ship Zeminder on the high seas, contrary to 24 & 25 Vic. c. 97, § 42. While the ship was in mid ocean bound for England, laden with sugar, cotton, and rum, worth £50,000, defendant went into the forecastle hold, opened the sliding door of the bulkhead, and so got at the rum there stored, to which he had no right; and intending to steal some of it, he bored a hole in a cask with a gimlet, and when some had run out, lighted a match in an effort to find the hole to stop