Intention is the "fixing the mind upon the act, and

It may indeed be said that as every person is presumed to know the law, whoever does an act prohibited by law intends to do an unlawful act. But it is undoubtedly competent for the legislature to make an act punishable at all events, without regard to the intent with which it is done. Under an English statute making it manslaughter for a parent willfully to neglect to provide adequate medical aid for his child, a parent was convicted, who, acting conscientiously as a member of a sect which prohibited medicine, but prescribed prayer only, not merely acted in ignorance of the law, but followed the course of treatment which he honestly believed was the best for the child's health. Queen v. Downes, L. R. 1 Q. B. Div. 25. And the Ohio statute expressly makes it a crime to intentionally and without malice point or aim any firearm at or toward any person, unless in self-defense or in discharge of duty. 74 Ohio L. 245.

While it is in general true that ignorance of the existence of facts which make the act a crime, is a defense against a prosecution for the crime, it is not held to be so universally. It is said in Stephens' Digest of Criminal Law, art. 34, p. 23 (American edition): "Where an offense is so defined by statute that the act of the offender is not a crime, unless some independent act co-exists with it, the court must decide whether it was the intention of the legislature that the person doing the forbidden act should do it at his peril, or that his ignorance of the independent fact, or his mistaken belief, in good faith and on reasonable grounds, that it did not exist, should excuse him.”

An article by John Wilder May, in the American Law Review, for April, 1878, collects the cases on this point. It has been held in England that, in a prosecution for the unlawful taking of an unmarried female under the age of sixteen out of the possession or against the will of the person having lawful charge of her, ignorance of the fact that the girl was under the specified age is no defense. Reg. v. Robbins, 1 Car. & K. 452; Reg. v. Ollifer, 10 Cox, 402; Reg. v. Mycock, 12 Cox, 28; Reg. v. Butt, 12 Cox, 231; Reg. v. Prince, L. R., 2 C. C. R. 151. In Massachusetts, it has been held that in a prosecution for selling liquor in violation of the statute, it is no defense that the defendant had no reason to suppose, and did not believe, the liquor sold to be intoxicating. Commonwealth v. Boynton, 2 Allen, 160 An analogous ruling was made in prosecutions for selling adulterated milk. Commonwealth v. Farren, 9 Allen, 489, and in Commonwealth v. Waite, 11 Al'en, 264. And in a prosecution for selling naphtha under an assumed name. Commonwealth v. Wentworth, 118 Mass. 441. And in a prosecution for admitting a minor to a billiard-room, without the written consent of his parent or guardian, it was held no defense that the supposed minor was almost twenty years of age, fully grown, and did business independent of his parents, and that the defendant asked the alleged minor whether or not he was a minor, saying that

thinking of it as of one which will be performed when the

if he was he must not enter, and he replied he was of full age. Commonwealth v. Emmons, 98 Mass. 6.

The same rule was followed in State v. Smith, 10 R. I. 258; Ulrick v. Commonwealth, 6 Bush, 400; State v. Herthel, 24 Wis. 60; and, in Missouri, in a qui tam action, Beckham v. Nacke, 56 Mo. 546. The con trary rule, however, was held in Miller & Gibson v. State, 3 Chic St. 475.

But, unless the statute is clear to the contrary, there is no crime unless there is a criminal intent. Sometimes a particular criminal intent is requisite. In some states, the statute makes an intent to kill an essential ingredient in the crime of murder; an intent to commit a felony is necessary to constitute burglary; an intent to deprive the owner of goods of his property therein is necessary to make larceny; and, in malicious assaults, the particular intent determines the class of the offense-as intent to kill, intent to maim, intent to wound.

In many cases, only a general criminal intent, or malice, is requisite. Legal malice is a willful intent to do an unlawful injury. Where a person undertakes maliciously to do an unlawful act, and in the perpetration thereof does, unintentionally, another unlawful act, the unintentional act is also held to be done maliciously; and, hence, where the malice is sufficient in degree, such unintentional act is also a crime. Where a person in perpetrating or attempting to perpetrate a felony, kills another unintentionally and unawares, such killing is murder at common law. If the act by which the unintended death is occasioned is a mere misdemeanor, such killing is manslaughter. An illustration given by Coke, and repeated in all the text-books since, and frequently given in charge to the jury in reported English cases, is this: If a man, shooting at a chicken, merely intending to destroy it, which is a misdemeanor, accidently kills another man, he is guilty of manslaughter. But if he intended to shoot the chicken for the purpose of stealing it, which was a felony, then the accidental killing of the man, though wholly unawares, was murder.

And where a particular intent is requisite to constitute a crime, if a person, in attempting to perpetuate such crime, unintentionally does another act which if done with such particular intent, is a crime, he is guilty. As, where the intent to kill is requisite to constitute murder, if a person attempting to murder one should accidentally kill another, he is guilty of the murder of such other.

The intent must be contemporaneous with the act. If a person breaks and enters a dwelling in the night merely for the purpose of gaining shelter, and subsequently forms the purpose to commit a felony therein, he is not guilty of burglary. If a person wrongfully takes possession of the goods of another, but without any intent to deprive the owner of his property therein, and subsequently forms such intention, he is not guilty of larceny.

time comes," and when the time comes (if it ever does) the act is willed. The willing may succeed the intention instantaneously, or years may intervene between the formation of the intention and the exercise of the will. An example will explain the relation of the two terms more clearly. A. hates B. In consequence of this hatred, A., on meeting B., shoots him dead. Here A. makes up his mind to shoot B. when he meets him; up to this point, as long as the two are separated, A.'s intention only is formed. He meets B. in the road, and carries out his design or intention by pulling the trigger. Now he wills the act; that is, he wishes it in such a way as to cause the motion of his arm and finger.(m)

In this example a third element appears. The motive of the act is the deadly hatred. Motive may be defined as "that which incites and stimulates to action." It may serve as a clue to the intention; but it is the intention which determines the quality, criminal or innocent, of the act.(n)

So much for intention generally. But to make a person a criminal, the intention must be a state of mind forbidden by the law. I utter a forged note, not knowing it to be such, and therefore not intending to defraud. No crime is committed. But if I have such intention, this criminal intention stamps the act with the character of crime.(0) The guilty state of mind, or criminal intention, is generally known by the term "Malice;" a term which is truly a legal enigma, on account of the many and conflicting senses in which it is used. As synonymous with criminal intention, it is thus necessary to the legal conception of crime. To secure a conviction, as a general rule, malice of this kind must be directly proved. But when the law expressly declares an act to be criminal, the question of intention or

(1) Fitz. St. 77.

(m) "Though usually both intention and will are found in an act, either or both may be absent. Both are wanting when a man, in a convulsive fit, strikes and kills another. Intention is absent in the case of an infant."-v. Fitz. St. 78.

(n) Broom, C. L. 851.

(2) v. Fitz. St. 81.

malice need not be considered; at least, except by the judge in estimating the amount of punishment.(p) Again, in some cases, this intention is presumed from a circumstance, and it lies on the accused to show that his intention was innocent-e. g., in the case of possession of recently stolen goods.(q)

This malice is found not only in cases

I. Where the mind is actively or positively in fault, as where there is a deliberate design to defraud, but also—

II. Where the mind is passively or negatively to blame-that is, where there is culpable or criminal inattention or negligence. A common example of this is manslaughter by a surgeon who has shown gross incompetence in the treatment of the deceased. But here the criminality consists in the willfully incurring the risk of causing loss or suffering to others.() So that, in fact, the malice is only traced one stage further back. An extreme case of this negative malice is where there is merely the absence of a thought which ought to have been there, as in the nonrepair of roads through forgetfulness.

It is usual to lay down that malice is either—

1. Express, or in fact, as where a person with a deliberate mind and formed design kills another.

2. Implied, or in law, as where one willfully poisons another, though no particular enmity can be proved; or where one gives a perfect stranger a blow likely to produce death. Here there is a willful doing of a wrongful act without lawful excuse; and the intention is an inference of law resulting from the doing the act.(s) The law infers that every man must contemplate the necessary consequences of his own act.(t)

Here, and every-where in dealing with malice, there is great danger of deflection into malice with its moral siguification, as denoting ill-will or malevolence. words, of confounding motive with intention.

In other
Malice,

(r) Broom, C. L. 854.

(t) R. v. Dixon, 3 M. & Sel. 15.

in the sense of malevolence, is not essential to a crime; malice, in its legal signification of criminal intention, is.(u)

As we have seen, it is the character of the intention that determines the character of the act; though other considerations, for example, motives, are taken into account, in order to discover the intention. The same act may be wholly innocent, a civil injury, or a crime, according to the intention. For example, A. takes a horse from the owner's stable, without his consent. If he intend to fraudulently deprive the owner of the property and appropriate the horse to himself, he is guilty of the crime of larceny. If he intend to use it for a time, and then return it, it is a trespass or civil injury only. If he take it in due course as distress for rent, he is justified, and not exposed to any ill consequences.(x)

But a naked intention is not criminally punishable, except, as it is said, in treason. There must be some carrying out, or attempt to carry out, that intention into action. In other words, the intention is to be inferred from some overt act, or, in the case of a crime of omission, from the absence of some overt act. Thus, although A. has resolutely made up his mind to shoot B. when next he meets him, and confesses this resolution, the law is powerless to deal with him; but directly he does any thing in pursuance of that design, he is within the grasp of the law. The reason for this rule is obvious, namely, the difficulty, or rather impossibility, of proving a mere intention.

If there be present a criminal intention, the prisoner is not exculpated because the results of the steps he takes to carry out that intention are other than those he anticipated or intended. For example, if A., intending to shoot B., shoots C., mistaking C. for B. To such a length is this

(u) "In the use of the word 'malice,' in all cases there is undoubtedly always a lurking reference to some sort of moral depravity, though perhaps only of a temporary sort. But the intangible nature of such an element compels the legislature and the judge to select certain determinate signs as essential characteristics of this depravity."— Amos, Jurisprudence, 305.

(x) Broom, C. L. 851.