Page images
PDF
EPUB

indicating a reckless disregard for human life; for the malice implied from the felony.he intended supplies the place of the malice expressed by intentional murder.

§ 98. Same: Illustrations. Illustrations of murder resulting from attempting another felony are furnished by the cases already cited of Taylor v. State, § 17 and Gore's Case, § 31. This rule cannot otherwise be so well expounded as by quoting at length from a celebrated English case (3) in which Mr. Justice Stephen, a man of international repute for his learning on the law of crimes, recognizes and criticizes this doctrine in his instruction to the jury on a trial for murder of two boys by burning the house in which they were sleeping, the object of the defendants being to defraud the insurance company. The following is from this instruction:

"Gentlemen, it is now my duty to direct your attention to the law and the facts into which you have to inquire. The two prisoners are indicted for the wilful murder of the boy Sjaak Serne, a lad of about fourteen years of age; and it is necessary that I should explain to you, to a certain extent, the law of England, with regard to the crime of wilful murder, inasmuch as you have heard something said about constructive murder. Now that phrase, gentlemen, has no legal meaning whatever. There was wilful murder according to the plain meaning of the term, or there was no murder at all in the present case. The definition of murder is unlawful homicide with malice aforethought, and the words "malice afore

(3) Regina v. Serne, 16 Cox Cr. Cases 311.

thought" are technical. You must not, therefore, construe them or suppose that they can be construed by ordinary rules of language. The words have to be construed according to a long series of decided cases, which have given them meanings different from those which might be supposed. One of those meanings is, the killing of another person by an act done with an intent to commit a felony. Another meaning is, an act done with the knowledge that the act will probably cause the death of some person. Now it is such an act as the last which is alleged to have been done in this case; and if you think that either or both of these men in the dock killed this boy, either by an act done with intent to commit a felony, that is to say, the setting of the house on fire in order to cheat the insurance company, or by conduct which to their knowledge was likely to cause death and was therefore eminently dangerous in itself,-in either of these cases the prisoners are guilty of wilful murder in the plain meaning of the word. I will say a word or two upon one part of this definition, because it is capable of being applied very harshly in certain cases, and also because, though I take the law as I find it, I very much doubt whether the definition which I have given, although it is the common definition, is not somewhat too wide. Now when it is said that murder means killing a man by an act done in the commission of a felony, the mere words cover a case like this, that is to say, a case where a man gives another a push with an intention of stealing his watch, and the person so pushed, having a weak heart or some other internal disorder, dies. To take another

very old illustration, it was said that if a man shot at a fowl with intent to steal it, and accidentally killed a man, he was to be accounted guilty of murder, because the act was done in the commission of a felony. I very much doubt, however, whether that is really the law, or whether the court for the consideration of crown cases reserved would hold it to be so. The present case, however, is not such as I have cited, nor anything like them. In my opinion the definition of the law which makes it murder to kill by an act done in the commission of a felony might and ought to be narrowed, while that part of the law under which the crown in this case claims to have proved a case of murder is maintained. I think that, instead of saying that any act done with intent to commit a felony and which causes death amounts to murder, it would be reasonable to say that any act known to be dangerous to life and likely in itself to cause death, done for the purpose of committing a felony, which caused death, should be murder. As an illustration of this, suppose that a man, intending to commit a rape upon a woman, but without the least wish to kill her, squeezed her by the throat to overpower her, and in so doing killed her; that would be murder. I think that every one would say, in a case like that, that when a person began doing wicked acts for his own base purposes, he risked his own life as well as that of others. That kind of crime does not differ in any serious degree from one committed by using a deadly weapon, such as a bludgeon, a pistol, or a knife. If a man once begins attacking the human body in such a way, he must take the consequences if he goes

further than he intended when he began. That I take to be the true meaning of the law on the subject. In the present case, gentlemen, you have a man sleeping in a house with his wife, his two daughters, his two sons, and a servant, and you are asked to believe that this man, with all these people under his protection, deliberately set fire to the house in three or four different places and thereby burnt two of them to death. It is alleged that he arranged matters in such a way that any person of the most common intelligence must have known perfectly well that he was placing all those people in deadly risk. It appears to me that if that were really done, it matters very little indeed whether the prisoners hoped the people would escape or whether they did not. If a person chose, for some wicked purpose of his own, to sink a boat at sea, and thereby caused the deaths of the occupants, it matters nothing whether at the time of committing the act he hoped that the people would be picked up by a passing vessel. He is as much guilty of murder, if the people are drowned, as if he had flung every person into the water with his own hand. Therefore, gentlemen, if Serne and Goldfinch set fire to this house when the family were in it, and if the boys were by that act stifled or burnt to death, then the prisoners are as much guilty of murder as if they had stabbed the children. I will also add, for my own part, that I think, in so saying, the law of England lays down a rule of broad, plain common-sense."

§ 99. Voluntary manslaughter: What is provocation? Voluntary manslaughter is homicide committed intentionally in the heat of passion produced by extreme provo

cation. It will be noticed that intentional homicide is not necessarily murder; but if committed on the spur of the moment when anger from sufficient cause has displaced reason, the law makes some allowance for the frailty of human nature by declaring the crime less than murder, and inflicting a lighter penalty. What is a sufficient provocation has been much debated. It has long been settled that no mere words can amount to sufficient provocation. When a man struck his wife dead upon her telling him insultingly that he was not the father of her children, the court held that neither the words nor their combination with the disgraceful news they disclosed were provocation to reduce the offense from murder to manslaughter (4). But when a man caught his wife in the act of adultery and dispatched the adulterer on the spot, the court held it to be manslaughter only, sentenced him to be burned in the hand, and cautioned the sheriff to do it very lightly because there could not be greater provocation (5). There being an affray in the street, a soldier ran toward the combatants. A woman cried out to him: "You will not murder the man, will you?" He replied: "What is that to you, you bitch?" She then gave him a box on the face and he struck her with his sword's pommel on the breast, whereon she fled, and he pursued her and stabbed her in the back. The judge was at first of opinion that this was murder, as the blow on the breast was sufficient return for a box on the ear from a woman, which would not be sufficient provo

(4) Fry v. State, 81 Ga. 645.

(5) Manning's Case, 1 Hale P. C. 486.

« PreviousContinue »