Odger's English Common Law

CONSTRUCTIVE MURDER. 281
street at a time when he knew that it was crowded, was held guilty of
murder. 1 So was a man, who rode his horse violently into the midst of a
crowd for the fun of seeing them disperse in alarm and 60 unintentionally
killed some one. 2 In both these cases, had no death ensued, the prisoner's
act would at common law have been only a misdemeanour ; and yet malice
aforethought was implied.
It is submitted, therefore, that it is no longer law that
malice aforethought may be implied from the mere fact that
the prisoner's act which caused the death was felonious. 3
Circumstances must also exist which show that the death was
the natural or probable consequence of the prisoner's act, and
that the prisoner knew or ought to have known that this was
so. Some authority for this view will be found in the
summing up of Stephen, J., in R. v. Seme, 4 in which he
says :— " I think that, instead of saying that any act done
with intent to commit a felony and which causes death
amounts to murder, it would be reasonable to say that any act
known to be dangerous to life, and likely in itself to cause
death, done for the purpose of committing a felony, which
caused death, should be murder."
The prisoner insured his house for a large amount and then set fire to it-
Two of his little children were burnt to death. He was indicted for
murder and acquitted, although his act was clearly felonious and directly
caused the death of his children. He was subsequently indicted for arson
and convicted. 5
If a man causes the death of a woman by raping her, he will probably
not be convicted of murder, unless the attack upon her chastity was con-
ducted with such brutality and violence as shows that the prisoner was
recklessly indifferent whether he killed her or not. e Again, more than one
man has within living memory been hanged for causing the death of a woman
by administering a drug or performing an operation upon her with intent
to procure abortion. 7 But in a similar case in 1898, Bigham, J., told the
jury that they might find the prisoner guilty of manslaughter, if they
thought that he could not reasonably have expected death to result from
his act. 8 And it has since been held by the Court of Criminal Appeal B that
1 B. v. Hull (1664), E!elyng, 40 ; but see R. v. Fenton (1830), 1 Lewin, 179.
2 Cf. B. v. Dant (1865), L. & C. 667.
3 Though this has, no doubt, been laid down as clear law in many oases ; see,
for instance, the summing up of Cockburn, C. J., in B. v. Desmond, Barrett and
others (1868), Times, April 28th.
*
6
(1887), 16 Cox, at p. 313.
B. v. Seme, suprd. It is difficult to see why the prisoner was not on the first
indictment convicted of manslaughter.
6 Zadd's Case (1773), Leach, 96 ; see 3 F. & F. 290 (n.).
7 B. v. Russell (1832), 1 Moo. C. C. 356 ; and see the opinion
Erie, J., in B. v. Gaylor (1857), Dearsl. & B. at p. 293.
expressed by
8 B. v. Whitmarsh (1898), 62 J. P. 711.
9 R. v. Lumley (1912), 22 Cox, 635.