Odger's English Common Law

280 MURDER.
regarded as malice aforethought ; an intention to commit a misdemeanour
was not.
In the days when the penalty for almost every felony was death, enormous
importance was attached to the distinction between a felony and a mis-
demeanour. Yet surely the presence or absence of implied malice afore-
thought can no longer depend upon a distinction which now is merely
technical. It seems monstrous to assert that the well-known phrase that
the prisoner " did of his malice aforethought kill and murder J. S." can
be taken to mean that the prisoner intended to steal the goods of A. B.,
and in stealing them accidentally killed J. S. Such killing clearly is not
malicious.
Nevertheless, the proposition appears in many of the old books that, if
one man in the course of committing any felony causes the death of
another, though unintentionally and without criminal negligence, malice
aforethought will be irrebuttably presumed and he must be convicted of
murder ; whereas, if the act which he was committing had been only a
misdemeanour, he should be found guilty of manslaughter.. No decision
of any Court, however, is cited in these books as an authority for this
proposition ; nor is any reliable decision to be found earlier than 1762, the
date of the first publication of Sir Michael Poster's Crown Oases. 1 The
proposition, indeed, appears to have been founded upon the following
passage in that book 2 :— " A. shooteth at the poultry of B. and by accident
killeth a man ; if his intention was to steal the poultry, which must be
collected from circumstances, it will be murder by reason of that felonious
intent." And this was copied over and over again as an unquestionable
authority. But as a matter of fact it is in direct conflict with a statement
by an earlier writer, who is of at least equal, if not of even greater,
authority. 3
Sir Matthew Hale, C. J., in his Pleas of the Crown (written
before 1676, but not published till 1736), lays it down that if A. threw " a
stone to kill the poultry or cattle of B. and the stone hit and kill a
by-stander, it is manslaughter, because the act was unlawful, but not
murder, because he did it not maliciously or with an intent to hurt the
by-stander." 4 The test in his judgment, then, is the presence of a
malicious intent to hurt, and does not depend upon the distinction
between a felony and a misdemeanour.
Many cases, moreover, can be found in the old books in which a
prisoner, who had no intention to kill any one, was held to have com-
mitted murder, although his act which caused the death was not a felony
but a misdemeanour. Thus a workman, who, without any warning to the
people below, threw stones or rubbish from the top of a house into a public
i Foster refers to the trial of Lord Morley (1666), reported in 6 St. Tr. at p. ,770,
for murder. But this case is no authority for the proposition ; for Lord Morley,
who had under great provocation fought a duel and killed his opponent, was
acquitted of murder, but convicted of manslaughter. Poster also refers to Kelyng,
at p. 117, which gives a very hesitating statement of the law.
2 Discourse II., Of Homicide, pp. 258, 259.
s Sir Matthew Hale, born 1609, made Chief Justice of the King's Bench 1671,
died 1676. Sir Michael Foster, born 1689, made a puisne Judge of the King's
Bench 1746, died 1763.
1 1 Hale, 475. And see the discussion of this point, 3 F. & F. 288 (n.).