To make an act which causes death murder, then, the actor ought, on principle, to know, or have notice of the facts which make the act dangerous.There are certain exceptions to this principle which will be stated presently, but they have less application to murder than to some smaller statutory crimes.The general rule prevails for the most part in murder.
But furthermore, on the same principle, the danger which in fact exists under the known circumstances ought to be of a class which a man of reasonable prudence could foresee.Ignorance of a fact and inability to foresee a consequence have the same effect on blameworthiness.If a consequence cannot be foreseen, it cannot be avoided.But there is this practical difference, that whereas, in most cases, the question of knowledge is a question of the actual condition of the defendant's consciousness, the question of what he might have foreseen is determined by the standard of the prudent man, that is, by general experience.For it is to be remembered that the object of the law is to prevent human life being endangered or taken; and that, although it so far considers blameworthiness in punishing as not to hold a man responsible for consequences which no one, or only some exceptional specialist, could have foreseen, still the reason for this limitation is simply to make a rule which is not too hard for the average member of the community.As the purpose is to compel men to abstain from dangerous conduct, and not merely to restrain them from evil inclinations, the law requires them at their peril to know the teachings of common experience, just as it requires them to know the law.Subject to these explanations, it may be said that the test of murder is the degree of danger to life attending the act under the known circumstances of the case. It needs no further explanation to show that, when the particular defendant does for any reason foresee what an ordinary man of reasonable prudence would not have foreseen, the ground of exemption no longer applies.A harmful act is only excused on the ground that the party neither did foresee, nor could with proper care have foreseen harm.
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 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 docs 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 docs 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, 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 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. 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. And there are other examples of the same kind.
Now, if experience shows, or is deemed by the law-maker to show, that somehow or other deaths which the evidence makes accidental happen disproportionately often in connection with other felonies, or with resistance to officers, or if on any other ground of policy it is deemed desirable to make special efforts for the prevention of such deaths, the lawmaker may consistently treat acts which, under the known circumstances, are felonious, or constitute resistance to officers, as having a sufficiently dangerous tendency to be put under a special ban.The law may, therefore, throw on the actor the peril, not only of the consequences foreseen by him, but also of consequences which, although not predicted by common experience, the legislator apprehends.I do not, however, mean to argue that the rules under discussion arose on the above reasoning, any more than that they are right, or would be generally applied in this country.
