Odger's English Common Law

278 MURDER.
implied. These are known as cases of " constructive murder,"
and in them the term malice aforethought takes a wider
meaning. The law on the point is not quite clear,[but it may-
be stated thus :
—
Malice aforethought will be implied as a matter of law,;not
as an inference of fact, whenever the following circumstances
concur :
—
(i.) the prisoner must intend to do an act which is either
a felony or one of the graver misdemeanours
(ii. ) in the course of doing that act he must cause the death
of a human being
;
(iii.) he must have known or ought to have known that
such consequence would necessarily or in all probability
follow from his act ; and
(iv.) if in spite of such knowledge or in disregard of the
obvious facts he deliberately persists in his criminal design
and death ensues, he is guilty of murder.
A. imprisoned his wealthy uncle, B., and kept him without food or
drink for three days, hoping thus to force him. to sign a deed conveying
certain lands to A., which on B.'s death would otherwise pass to another
nephew, 0. B. refused to sign this deed, and eventually A. released him ;
for the last thing which A. desired was that B. should die before he had
signed that deed. B. died of exhaustion caused by his imprisonment and
starvation. A. has committed murder.
A young man, A., quarrelled with an experienced swordsman, B., and
challenged him to fight a duel. Before the fight took place B. promised a
friend of A.'s that he would not hurt A. seriously ; he would " only give him
a lesson." At the duel after some fencing, in which B. had A. entirely in
his power, B. thrust at A.'s shoulder, but A. unfortunately shifted his
position at that moment, and the sword pierced his throat and killed him.
B. is guilty of murder. 1
" 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." 2
i See Erringtorii Gate (1838), 2 Lewin, 217.
» Per Stephen, J., in R. v. Serne and Goldfinch (18S7), 16 Cox, at p. 313 ; and see
M. T. Lumley (ly 12), 22 Cox, 635, jiost, p. 281.
;