It would seem, at first sight, that the above analysis ought to
exhaust the whole subject of murder. But it does not without some
further explanation. If a man forcibly resists an officer
lawfully making an arrest, and kills him, knowing him to be an
officer, it may be murder, although no act is done which, but for
his official function, would be criminal at all. So, if a man
does an act with intent to commit a felony, and thereby
accidentally kills another; for instance, if he fires at
chickens, intending to steal them, and accidentally kills the
owner, whom he does not see. Such a case as this last seems
hardly to be reconcilable with the general principles which have
been laid down. It has been argued somewhat as [58] follows:--The
only blameworthy act is firing at the chickens, knowing them to
belong to another. It is neither more nor less so because an
accident happens afterwards; and hitting a man, whose presence
could not have been suspected, is an accident. The fact that the
shooting is felonious does not make it any more likely to kill
people. If the object of the rule is to prevent such accidents,
it should make accidental killing with firearms murder, not
accidental killing in the effort to steal; while, if its object
is to prevent stealing, it would do better to hang one thief in
every thousand by lot.
Still, the law is intelligible as it stands. The general test of
murder is the degree of danger attending the acts under the known
state of facts. If certain acts are regarded as peculiarly
dangerous under certain circumstances, a legislator may make them
punishable if done under these circumstances, although the danger
was not generally known. The law often takes this step, although
it does not nowadays often inflict death in such cases. It
sometimes goes even further, and requires a man to find out
present facts, as well as to foresee future harm, at his peril,
although they are not such as would necessarily be inferred from
the facts known.
Thus it is a statutory offence in England to abduct a girl under
sixteen from the possession of the person having lawful charge of
her. If a man does acts which induce a girl under sixteen to
leave her parents, he is not chargeable, if he had no reason to
know that she was under the lawful charge of her parents, /1/ and
it may be presumed that he would not be, if he had reasonable
cause to believe that she was a boy. But if he knowingly abducts
a girl from [59] her parents, he must find out her age at his
peril. It is no defence that he had every reason to think her
over sixteen. /1/ So, under a prohibitory liquor law, it has been
held that, if a man sells "Plantation Bitters," it is no defence
that he does not know them to be intoxicating. /2/ And there are
other examples of the same kind.
Public-domain text, read in full here on John Shaqi.
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