that to sustain an averment of an intent to kill the deceased evidence of intent to kill a human being must be proved; rejecting herein the old doctrine that a collateral, felonious intent can be tacked to unintended homicide so that a man who in stealing a fowl accidentally kills the fowl's owner, can be held guilty of murder." The proposition is fully discussed in the body of the work. A few quotations must suffice. In sec. 55 the learned author 66 says: * Independently of these points it is declared by the old English text writers, as a general rule, that if the act on which death ensue be malum in se, it will be murder or manslaughter according to circumstances; if in the perpetration of a felonions intent, but death ensued against or beside the intent of the party, it will be murder; but, on the other hand, if the intent was no further than to commit a bare trespass, it will be manslaughter.

#

And frequently has this rule been announced as unquestioned law by courts in the United States. Sec. 56. Yet, peremptory as has been the assertion of this principle, there is reported no modern conviction of common law murder, in a case in which there was no evidence of malicious intent towards the deceased, and in which the felonious intent proved was simply an intent to commit a collateral felony." In sec. 59 the author continues: "The old English reasoning was something like this:-Whenever all offenses of a particular class are punished in the same way, it is a matter of indifference to an offender as to which he is convicted of committing. When he has a felonious intent, and when executing this intent he commits a felony, though a different felony from that intended, then the felonious intent may be tacked to the intended felony." Such was the rule and such were the reasons for it at the time of its adoption. It had its origin at a time when all felonies were punished capitallywhen they hung or beheaded a man for stealing a deer from a gentleman's park-and when the policy of the English judges was to repress crime by exterminating criminals of all grades. Mr. Wharton, after showing the fallacy of the rule even at the time of its inception, proceeds to say in the next section, 60: "This reason, such as it is, no longer exists. Larceny and murder have assigned to them distinct punishments; and it is no longer a matter of indifference to the defendant for which he is to be tried. Nor is it a matter of indifference to juries. A jury must feel itself far more willing to convict a man of larceny than to convict him for murder simply because he intended to kill a tame fowl. Of course, this assumes that the killing of the owner of the fowl was purely accidental, and that so far from being intended, it was an act against the offender's will. If so, a jury will revolt at conviction; and the testimony of the judges examined by the English Homicide Amendment Committee shows that rather than permit such a conviction, judges who persist in holding the old rule, 'contrive' to find for the jury some collateral excuse for acquittal." Mr. Justice Blackburn, in his testimony before the English Homicide Amendment Committee, in referring to the testimony of Mr. Fitzjames Stephen before the same committee, in respect to a death resulting from an attempted rape, says: "I see he quotes the old case where Coke savs, if a man shoots at a deer to steal it (and it was followed up by a case in the reign of Charles II. where he shoots at a hen) and totally accidentally there is somebody whom the shot strikes and kills, that would be murder. I can only say that I do not believe that is murder at the present day. I should not act upon that." After some further observations by the learned judge, Mr. Russel Gurney asked him this question: "There is not a single text book, is there, where it is not laid

down to be murder if you cause death in the prosecution of a felony?" Judge Blackburn replied. "I think that in all of them they do lay it down; they cite that statement of Coke's and that later case, and they all say that there it is put down; but I do not think that there will be found any instance in which that has ever been acted upon; and I am confident it would not be acted upon now." But I can not extend these quotations. I have given enough to justify my answering the two questions propounded in the negative, notwithstanding the authorities that might be cited in support of the affirmative. English authors adopted it on the authority of the deer and the chicken cases, and some of our American authors and courts have accepted it without question.

While we continue to insist that the common law is the "perfection of human reason, "we should cease to venerate the rules and dogmas of the early authors, especially as to the criminal law, for they were pronounced under circumstances far different from those of our own day and time, and some of them are revolting to the sense of right and justice of the average mind of the present. Sir William Blackstone, as the profession now recognizes, was the most distinguished commentator on the laws of England of the century in which he lived, still we must remember that, as to English law, he had but the light of the opinions of the judges and acts of parliament of the preceding ages to guide him. Why should we accept, without question, the rules and dogmas which he gathered from the records of the past, and yet presume to deny the conclusions of his great mind. When speaking of a matter foreign to the subject under discussion, he says (4 Bl. Com. 60): To deny the possibility, nay actual existences of witchcraft and sorcery is, at once, flatly to contradict the revealed word of God.

* and the thing itself is a truth to which every nation of the world hath in its turn borne testimony either by examples seemingly well attested or by prohibitory laws; In conclusion 'allow me

to repeat that the only malice, as an ingredient in murder, which the human mind can comprehend or define, is a condition of the mind-i. e., internal will-which is established by proof of external acts or words, having a causal relation of the will to the act. If the act is such that the will may fairly be inferred, the average juror will as readily and accurately infer the existence of malice, as the hunter would infer that there was a deer in the vicinity from the fact that he had seen the fresh track of one. If a person does a wrongful act, intending thereby to kill or do some bodily harm to another, and death ensue, the mind at once concludes that malice was present; or if a person not intending hurt to any one, does an act, which he knows, from its very nature, is likely to kill or hurt people, and death ensues, the same mind would as readily infer the existence of malice; and neither case would require any tedious process of inductive reasoning. If it is claimed that the law by its dry, arbitrary and stern rules makes an act malicious which is not so in fact, I reply that such rules are not in accord with human reason, and hence reject the claim; and if the only other alternative-public necessity-is urged, I deny the necessity. A proposition, as a proposition of criminal common law, not based on reason or public necessity, is not the law, never was, and no series of adjudications, nothing short of legislative enactment can make it the law. As there can be no murder without malice, so there can be no murder committed in the perpetration or attempt to perpetrate arson, rape, robbery, burglary or mayhem, unless malice, independent of the intent to commit the collateral felony, be present. If I set your house

on fire, in which I might reasonably expect there was some human being, and death ensues from the act, it is an act of murder. But if I, wishing to do you an injury, and wishing to avoid danger to human life, set your ice house on fire, at such an hour that I have no reason to expect that there is any person in it, and

agree with you on that point." On the other hand in the County Court of Exeter the court decided that a set of artificial teeth were not necessaries' for a farmer's wife, and nonsuited a dentist who had supplied them in the absence of any express authority from the husband. -Jarndyce v. Jarndyce has its match

in

The views herein expressed are not novel. They are the result of reflection after a somewhat careful examination of Mr. Wharton's great work on Homicide from which I have so extensively quoted. 2d ed. 1875. I ask their publication, not that I hope to convince the profession by any poor words of my own. But if I can induce investigation-a careful re-examination of all the old land marks of the criminal law by the bench and bar of the State--I shall have my reward in the better administration of the criminal law of that State which has been my choice and home for a third of a century. Trenton, Mo.

NOTES.

J. H. S.

The Public Lands Commission expect to make a preliminary report to Congress on the codification of the land laws in a short time. This will embrace the laws now in force. The work of codification will go on under the direction of two experts from the land office for perhaps a year longer. There are 2,700 laws in all. The commission will also be ready to report soon on the classification, etc., of the public lands. This report will include several thousand pages containing a digest of the views of numerous gentlemen whom the commission consulted.-Four suits, involving questions of great interest to American authors and publishers, were recently brought in the United States Court at Philadelphia against J. N. Stoddart & Co. to restrain them from publishing a reprint of the "Encyclopædia Britannica." The tenth volume of this work contains several articles written by American authors, which were copyrighted in this country. Stoddart & Co. were about is

suing the reprint of this volume, when they received notice of the suits. Motions for a preliminary injunction in two of the cases to restrain them from issuing the volume were made. Argument was heard by Judge Butler on these motions several weeks ago. It was contended that the articles could not appear in the Stoddart reprint, as their publication would be an infringement of the copyright. Judge Butler last week denied the preliminary injunction on the ground claimed by the defendants, that the granting of the injunction at that time when the book is all ready for publication would cause them irreparable damage, while the complainants would suffer only slight damage from such publication of their work. The cases will now go to final hearing, and will probably be reached some time next spring.

The question as to what are necessaries" has been troubling the English courts lately. In the Gainsborough County Court a suit was brought for $7, the price of a family Bible. The defendant stated that he was away from home when the Bible was purchased by his wife. The judge thought the purchase proved, whereupon the defendant contended that he was not liable for his wife's debt because "a Bible is not a necessary of life." The court: "I don't think I can

of the

(the Hungarian Supreme Court) gave final judgment in a suit commenced in 1768, and which has since passed through all the possible phases of Hungarian litigation. The object of the original suit was to eject an alleged wrongful occupier of a large family estate. After 111 years of litigation, the court placed the representatives of the original plaintiffs in possession of 1 portion only of the property. It is stated that a large portion has been swallowed up in expenses.— The daughter of Chief Justice Waite has presented an oil portrait of her father to the State of Ohio.

An Indiana subscriber is authority for the following: In a case tried in the Pike Circuit Court in that State, where there was a question of autrefois convict, the following affidavit for profanity was introduced from a docket of a justice of the peace. "State of Indiana, Pike County, ss.: Richard Johnson swears that Alexander Foster was, on the 1st. day of June, 1879, guilty of profanity, to-wit: 'By God!' So help me God!''

me.

his Richard x Johnson. mark'

-Do you understand the nature and solemnity of an oath?" the judge asked a witness who had come up from the lower end of the State. "Well, yes," the witness replied, after some study, "I reckon I know the natur' of an oath, but there never appeared to be no powerful amount of solemness about swearin' to It always come kind of nat'ral like. Mam swore a little when she was riled, dad was a born cusser, and Parson Bedloe-' But the court excused him without further pedigree.--George Jones, alias the Count Joanes, an eccentric individual who died in New York last week was both an actor and a lawyer. In an election case before Judge Brady, of that State, some years ago, after considerable debate between the lawyers, the judge himself interposed with: "Well, gentlemen, let us get to the merits of the case. I suppose that all that either party desires in this case is an honest count." At which there rose before the judge on the instant a wild and strange figure, not unfamiliar to the courts nor yet to the footlights, which with hand upon its heart bowed low and uttered in sepulchral tones: May it please the court, Ecce homo!" It was the Count Joannes.In an interesting article in the Westminster Review for October, on England's great lawyer, Lord Brougham, the writer says that the name “Brougham' is variously pronounced, but its correct pronunciation, according to its illustrious bearer is "Broom." At his first appearance as counsel at the Bar of the House of Lords, Lord Eldon called him "Mr. Bruffam." Indignant at being so miscalled, the offended advocate sent the chancellor a rather angry message, accompanied with a paper, on which, to insure for the future the proper and monosyllabic pronunciation of the name, were written in large round text the letters BROOM. At the end of the argument Lord Eldon. with his usual kindliness of manner towards the bar. observed: Every authority upon the question has now been brought before us. New brooms sweep ciean." We may add that the common method of pronouncing the name as "Bro-am" or "Brooam," were equally distasteful to its bearer as Lord Eldon's "Bruffam."

ST. LOUIS, JANUARY 16, 1880.

POLICE DUTIES OF COMMON CARRIERS.

For the reason that the carrier owes to the passenger the exercise of the utmost diligence for his comfort and safety, while the relation of carrier and passenger subsists, the former has the authority to institute and execute proper police regulations for the protection of the latter. The subordination of the passenger to reasonable regulations of this character is a reciprocal duty. The violation of such regulations by a passenger justifies his summary expulsion from the carrier's vehicle or premises, or forcible separation from the other passengers. The authority of the carrier in this respect is correlative with his duty. In a case heretofore reported in the columns of this JOURNAL,3 this matter is well considered by Chalmers, J., who concludes as follows: "Powers and duties are usually reciprocal, and may be said to be uniformly so when the power is of a public, official character, conferred for the benefit of others. The failure or refusal of the official to exercise such a power in a proper case when called upon by those for whose protection he has been invested with it, amounts to negligence, or to wilful misconduct, as the circumstances of the case may indicate, to discharge this duty stands, to some extent, upon the same footing as the omission to perform any other official duty, and, upon the maxim respondeat superior, renders the corporation liable."

a failure

Of course, a considerable degree of caution is necessary in the execution of this power. The carrier will be responsible for the act of his servant in expelling a passenger from his vehicle, under a mistake of facts or of judg

(1) Vinton v. Middlesex R. Co. 11 Allen, 304; Chicago etc. R. Co. v. Griffin, 68 Ill. 499; Pittsburgh etc. R. Co. v. Van Houten, 48 Ind. 90; Pittsburgh etc. R. Co. v. Valleley, 32 Ohio St. 345, 6 Cent. L. J. 277, 7 Reporter, 406.

(2) Marquette v. Chicago etc. R. Co. 33 Iowa, 562; Chicago etc. R. Co. v. Williams, 55 Ill. 185, 188. (3) New Orleans etc. R. Co. v. Burke, Cent. L. J. 539, s. c. 53 Miss. 200.

Vol. 10-No. 3.

5

ment as to the misconduct of the latter.* Upon familiar principles no more force can be used than is adequate for the purpose of expulsion. Thus, in Seymour v. Greenwood," the Court of Exchequer Chamber held that the carrier was responsible for an injury caused by the needlessly violent expulsion from an omnibus of a person who was drunk, had refused to pay his fare, and had assaulted the guard. The time, place and circumstances, also the condition of the passenger, will be elements for the jury in deciding whether the expulsion was effected in a reasonable manner, so as not to inflict wanton or unnecessary injury upon the offending passenger, nor needlessly to place him in circumstances of peril, at the time of and after his expulsion.''

If the conduct of the passenger is such as to excite reasonable apprehensions that his presence will result in injury or annoyance to other passengers, it is the right and duty of the conductor to expel him, without waiting for any overt act of violence.8 Gamblers and monte-men, whose purpose in traveling upon a train is to ply their vocations, may be excluded therefrom. But if a ticket has been sold to such a person and the company desiring to rescind the contract for transportation, prevents him from getting on board, it should at the same time tender the return of the money paid for the ticket. In the case just noticed, the plaintiff was prevented from entering the train. Said Dundy, J.: "Necessary force may be used to prevent gamblers from entering trains, and if found on them engaged in gambling, and refusing to desist, they may be forcibly expelled." It is not perceived why according to the principles of Vinton v. Middlesex Railroad Company, gamblers, pickpockets, sneak thieves, and persons whose notoriously vicious character renders it extremely probable that their presence will result in the robbery or swindling of other passengers may not be excluded even

(4) Higgins v. Watervliet Turnpike Co. 46 N. Y. 23. (5) State v. Ross, 26 N. J. L. 224; Murphy v Middlesex etc. R. Co. 118 Mass. 228.

(6) 7 Hurl. & N. 355; affirming, s. c. 6 Hurl. & N. 359. (7) Pittsburg etc. R. Co. v. Valleley, 32 Ohio St. 345; s. c. 6 Cent. L. J. 277, 7 Reporter, 406; Murphy v. Middlesex etc. R. Co. 118 Mass. 228; Marquette v. Chicago etc. R. Co. 38 Iowa, 562.

(8) Vinton v. Middlesex R. Co. 11 Allen, 304. (9) Thurston v. Union etc. R. Co. 4 Dill. 321. (10) Supra.

after they have taken passage upon the train, and before they have begun to ply their vocation. The ruling in the Massachusetts case was made with reference to an intoxicated passenger, but why should it not apply to the cases indicated? The circumstance that large numbers of the traveling public are defenceless persons, and that their property while on the journey is quite insecure, would seem to be a sufficient reason for vesting the carrier's servants with the power and duty of summarily expelling such notorious law-breakers at any time from a railroad train, steamboat, horse-car or other public conveyance. "The safeguard against an unjust or unauthorized use of the power is to be found in the consideration that it can never be properly exercised except in cases where it can be satisfactorily proved that the condition or conduct of a person was such as to render it reasonably certain that he would occasion discomfort or annoyance to other passengers if he was admitted into a public vehicle or allowed longer to remain within it." If the probability of mere discomfort or annoyance is a sufficient reason for the expulsion of an obnoxious passenger, a fortiori that of robbery ought to be. The foregoing observations are prompted by the fact that text-writers do not seem to have visited with proper condemnation the nisi prius talk of Rolfe, B., in an obscure case, to the effect that though certain passengers were known to be pickpockets, that might be a reason for watching them, but per se did not justify putting them off." It can not be seriously contended, for example, that it is the duty of the conductor of a railroad train to detail a squad of brakemen from the control of the train to watch a gang of known pickpockets, or of the railroad company to supply every train with a private police force for this purpose. Such ought not to be, and is not, the duty of carriers or their agents. Therefore, if the language of Rolfe, B., is the law, pas

18

(11) Bigelow, C. J., in Vinton v. Middlesex R. Co. supra.

(12) Coppin v. Braithwaite, 8 Jurist, 875; See Angell on Carriers, § 532; Hutchinson on Carriers, § 545; 1 Redfield on Railways (5th Ed.) 111, note 10. This case was cited by Davis, J., in the opinion of the court in Pearson v. Duane, 4 Wall. 605, 615, but the facts of that case in no respect resemble these under discussion as the passenger was not a dangerous per

son.

(13) Pittsburgh etc. R. Co. v. Hinds, 53 Pa. St. 412, 516, per Woodward, C. J.

sengers are without adequate protection against persons known to be dangerous, who have boarded a public conveyance for the express purpose of robbery or swindling."

15

The master of a ship has been held responsible for losses incurred by a passenger at the hands of a pair of gamblers and tricksters, which it was in his power to have prevented, because he was aware of the character of one of the swindlers, the fleecing was done in the presence of the clerk of the boat, and the master was informed of the circumstance in season to have compelled the pair to disgorge. This is well. But if a carrier is to be visited with responsibility in such cases, he should certainly be clothed with all reasonable powers to prevent the occurrence. It should be his right and duty at any time, whether before, during or after the commission of a crime, to expel the offender upon reasonable grounds of suspici on. The safe conduct guaranteed to law-abiding passengers demands it, and, in general, rogues only would suffer from the exercise of this power of expulsion.

The use of profane and indecent language in a railway coach, in the presence of ladies, is such a breach of decorum as will afford just cause for the removal of the passenger from the train, although he was provoked to such expressions by the demand of the conductor for fare which had already been paid. If a person, having purchased a ticket, attempts to get on board a car, disgustingly drunk, or so drunk as to be likely to violate the common proprieties and decencies of life, he has no right to passage while in that condition; but slight intoxication, such as would not be likely to seriously affect the conduct of the person intoxicated, would not be sufficient ground to refuse him passage, although his behavior might not be in all respects strictly becoming. 18

As before stated, the duty of protection (14) Weeks v. New York, etc. R. Co. 72 N. Y. 50; s. c. 16 Am. L. Reg. (N. S.) 506; 6 Rep. 54.

(15) Smith v. Wilson (U. S. Dist. Court for the Southern District of Alabama, Busteed, J.) 31 How. Pr. 272.

(16) Chicago etc. R. Co. v. Griffin, 68 Ill. 499; see also People v. Caryl, 3 Park. Cr. Cas. 326.

(17) Murphy v. Union R. Co. 118 Mass. 228; Vinton v. Middlesex R. Co. 11 Allen, 304; State v. Ross, 26 N. J. 224; Pittsburgh etc. R. Co. v. Vandyne, 57 Ind. 576; Hendricks v. Sixth Ave. R. Co. 12 Jones & Sp. 8. (18) Putnam v. Broadway etc. R. Co. 55 N. Y. 108, 114; Pittsburgh etc. R. Co. v. Vandyne, supra.

19

which the carrier owes to the passenger includes a responsibility for the unlawful acts of fellow passengers, when by the exercise of the highest degree of care those acts might have been foreseen and prevented. As stated by Shipman, J., in Flint v. Norwich Transportation Company," carriers are "bound to exercise the utmost vigilance and care in maintaining order and guarding the passengers against violence, from whatsoever source arising, which might reasonably be anticipated or naturally expected to occur, in view of all the circumstances and of the number and character of the persons on board." Therefore in a case in which the plaintiff was injured by the accidental discharge of a gun which fell from the hands of a soldier, engaged in a scuffle, who was one of a large body of soldiers who had embarked upon the defendant's boat-many of them drunk and disorderly, though in charge of their officers and a guard-he left it to the jury to say whether the officers of the boat were properly vigilant in attempting to quell the disorder or inform the passengers of the character of the men, and the danger of coming in contact with them." Although it is not the duty of a railroad company to furnish a standing police force adequate to the resistance of mobs of disorderly persons who may board its trains, yet it is the duty of the conductor of the train to make all possible resistance against such disorderly persons, by calling together for this purpose all the trainmen and passengers willing to lend a helping hand to this end.22 Whether the carrier has

provided a sufficient number of officers for the protection of its passengers is a question for the jury.23 The conductor of a railroad train does not perform his duty on the occa

(19) Pittsburgh etc. R. Co. v. Hinds, 53 Pa. St. 512; Putnam v. Broadway etc. R. Co. 55 N. Y. 108; Flint v. Norwich etc. Trans. Co. 34 Conn. 554; s. c.; 6 Blatch. 158; Pittsburgh etc. R. Co. v. Pillow, 76 Pa. St. 510; New Orleans etc. R. Co. v. Burke, 53 Miss; 200; 8. c. 4 Cent. L. J. 539; Holly v. Atlanta St. R. Co. (Sup. Ct. Ga.) 7 Reporter, 460; Sherley v. Billings, 8 Bush, 147; Goddard v. Grand Trunk R. Co.57 Me. 202 213, per Walton, J.; Hendricks v. Sixth Ave. R. Co. 12 Jones & Sp. 8.

24

sion of a violent disturbance among a large body of drunken passengers, by coming to the car door and counselling the sober passengers to throw the riotors from the car," nor by simply hurrying an assaulted passenger from one car to another, making no effort to remove from the train the persons guilty of the assault, or prevent their further violence. 25 If the assault upon the passenger is so sudden that it can not be prevented, and the conduct of the person making the assault has previously not been such that his action might reasonably have been anticipated, the carrier will not be responsible for the consequences.26 Thus, an intoxicated passenger having insulted two females who were in the company of the plaintiff's intestate, was ordered by the conductor of the street car in which they were riding, to take a seat and be After the conductor requiet, which he did. turned to the rear platform of the car, the passenger resumed his abuse and threatened the plaintiff's intestate with violence. None of this last conversation was said in a tone loud for the conductor to was there any evidence that to his knowledge. The passenger then went upon the front platform and remained there quietly until the plaintiff's intestate left the car and was assisting his companions to alight, when the passenger in question came around from the front platform and assaulted him with a car-hook, inflicting blows upon his head from the effects of which he died. The Court of Appeals held that in this case a motion for a nonsuit should have been

sufficiently

nor

hear, it came

granted. Said Allen, J., delivering the opinion of the court: "The fact that an individual may have drank to excess, will not, in every case, justify his expulsion from a public conveyance. It is rather the degree of intoxication, and its effect upon the individual, and the fact that, by reason of the intoxication, he is dangerous or annoying to the other passengers, that gives the right and imposes the duty of expulsion.27 there was anything in the condition, conduct, appearance or manner of Foster [the assailant], from which the jury could reasonably

(24) Pittsburgh etc. R. Co. v. Hinds, supra.

*

If

(25) New Orleans etc. R. Co. v. Burke, 53 Miss. 200; s. c. 4 Cent. L. J. 539.

(26) Putnam v. Broadway etc. R. Co. 55 N. Y. 108. (27) Ibid. 114.