deadly consequence of a criminal act always affects the punishment more or less. [Footnote 121: Adam Smith, _Theory of Moral Sentiments_, p. 152.] [Footnote 122: According to Harris (_Principles of the Criminal Law_, p. 156), the act should be a _malum in se_, not merely a _malum quia prohibitum_.] [Footnote 123: Kenny, _op. cit._ p. 41.] [Footnote 124: Stephen, _History of the Criminal Law of England_, iii. 8.] [Footnote 125: _Ibid._ iii. 22.] [Footnote 126: _Ibid._ iii. 83.] [Footnote 127: Harris, _op. cit._ p. 157.] [Footnote 128: Stephen, _op. cit._ ii. 113.] [Footnote 129: Hale, _History of the Pleas of the Crown_, i. 428.] [Footnote 130: _Lex Wisigothorum_, vi. 5. 6: "Si dum quis calce, vel pugno, aut quacumque percussione injuriam conatur inferre, homicidii extiterit occasio, pro homicidio puniatur."] [Footnote 131: _Code Pénal_, art. 309.] [Footnote 132: _Strafgesetzbuch_, art. 226.] [Footnote 133: _Ottoman Penal Code_, art. 177. _Cf._ _ibid._ art. 174.] [Footnote 134: Sachau, _op. cit._ p. 761 _sq._] I presume that nobody after due deliberation would maintain that the moral guilt of the offender is enhanced by the death of him whom he involuntarily happened to kill. Sir James Stephen, nevertheless, makes an attempt to defend, from a moral point of view, the severe English law on the subject, which he thinks "is much to be preferred to the law of France." He asks, "Is there anything to choose morally between the man who violently stabs another in the chest with the definite intention of killing him, and a man who stabs another in the chest with no definite intention at all as to the victim's life or death, but with a feeling of indifference whether he lives or dies?"[135] Perhaps not. But I venture to maintain that there is a considerable moral difference between the man who shoots at another with the definite intention of killing him, and the man who, firing at another's chickens, with the intention of stealing them, accidentally kills the owner whom {240} he does not see. It will perhaps be argued that the law has a utilitarian purpose, its object being to make people more careful. But if this were the case one would expect that the law should punish with equal severity acts which involve the same degree of danger, and which result in similar injuries. To fire at a sparrow may be as dangerous to people's lives as to fire at another person's chicken, and, in the latter case, the danger is hardly increased by the intention to steal the chicken. I take the truth to be this. The degree of punishment corresponds to the degree of indignation aroused by the deed. Public imagination is shocked by the actual event. The agent, being guilty either of criminal intention, or of gross disregard of other people's interests, or of criminal heedlessness, is a proper object of punishment. Owing to that want of discrimination which characterises the popular mind, his guilt is