Odger's English Common Law

CONSTRUCTIVE MURDER. 279
But why should malice aforethought be implied from the
concurrence of the four circumstances set out above? It
is no longer a question of arguments pro and con on an issue
of fact, Did the prisoner intend to kill a human being or did
he not ? It is admitted by the prosecution that he did not.
He intended to do something quite different. But he intended
to commit a serious crime, and a crime moreover of a kind
which was likely to cause death or grievous bodily harm.
These consequences he did not intend or desire; but he
either was or ought to have been aware that such consequences
would probably follow from the crime which he was
about to commit. There is, therefore, in his mind the ordinary
mens yea, the intention to commit a crime ; and there is some-
thing more—recklessness or heedlessness as to the probable
consequences of his act. Beckless indifference as to the con-
sequences of a criminal act may, no doubt, be stigmatised as
malice. But heedlessness is not malice, and neither of them
surely amounts to malice aforethought. We venture there-
fore to state that in our opinion the law of constructive murder
should be abolished, and the term "malice aforethought"
restricted to cases in which the prisoner really intended to kill
some one. No man should be hanged merely in obedience to a
legal presumption.
In the last two centuries the law on this point was frequently laid down
in terms more stringent than those stated above. Malice aforethought
could according to these authorities be implied from the prisoner's intention
to commit a felony, even though his act was not dangerous in itself and
not likely to cause death or grievous bodily harm to anyone. Lord Coke,
indeed, had laid down a far wider rule, namely, " If the act be unlawful, it is
murder." 1 He cited Bracton as his authority and gave as an instance of
this rule the following example :— "If A. meaning to steale a deere in the
park of B. shooteth at the deer, and by the glance of the arrow killeth a
boy that is hidden in a bush, this is murder, for the act was unlawful,
although A. had no intent to hurt the boy, nor knew not of him. But
this dictum was never followed. In favour of the prisoner the proposition
was limited to felonious acts. If he intended to do an act which was a
mere misdemeanour and in committing it unintentionally caused death, his
crime was declared to be only manslaughter, even though its natural and
probable consequence was death. An intention to commit any felony was
i 3 Co Inst. 56 ; see the remarks of Blackburn, J., on this point in R. r.
Pembliton (1874), L. E. 2 C. C. B. at p. 121.