263 crowd,2 or by willfully throwing a missile from the roof of a building into a crowded. 264 street.2 So, if the warden of a prison unnecessarily takes a prisoner to a house in which there is a case of smallpox, knowing this fact, and knowing that the prisoner has never had the disease, and desires not to be exposed to it, and the prisoner catches the disease and dies, the warden is guilty of murder.265 If a man deliberately shoots in the direction of another, who is within shooting distance, and kills him, he is guilty of murder, whether he intended to hit him or not. He cannot escape responsibility by showing that he merely intended to frighten him, or to cause his horse to throw him, etc.266 (b) Use of a Deadly Weapon.-In ac 468; Hadley v. State, 55 Ala. 31, Beale's Cas. 469; Adams v. People, 109 Ill. 444, 50 Am. Rep. 617; McMillan v. State, 35 Ga. 54; State v. Hoover, 4 Dev. & B. (N. C.) 365, 34 Am. Dec. 383; Lewis v. State, 72 Ga. 164. 2631 Hale, P. C. 476. 264 Boles v. State, 9 Smedes & M. (Miss.) 284. 265 Castell v. Bambridge, 2 Strange, 854, Beale's Cas. 420. 266 State v. Smith, 2 Strob. (S. C.) 77, 47 Am. Dec. 589, Beale's Cas. 468. cordance with this principle, the willful use of a deadly weapon upon another without justification, excuse or extenuating circumstances is universally recognized as showing malice. Thus, in a leading English case, a blacksmith, who in a fit of sudden anger struck his servant on the head with an iron bar, and killed him, was held guilty of murder, whether he actually intended to kill or not. 267 To bring a case within the operation of this rule, the weapon must be a deadly one, either in its nature or in the manner in which it is used. Where the instrument used is not one likely to cause death or great bodily harm, as where one strikes another with his fist, or with a small stick or stone, or kicks him, the killing is manslaughter only, in the absence of an actual intent show 267 Grey's Case, J. Kelyng, 64, Beale's Cas. 463. And see McMillan v. State, 35 Ga. 54; Hadley v. State, 55 Ala. 31, Beale's Cas. 469; State v. Decklotts, 19 Iowa, 447; State v. Musick, 101 Mo. 260; Palmore v. State, 29 Ark. 248; Murphy v. People, 9 Colo. 439; People v. Barry, 31 Cal. 357; Beauchamp v. State, 6 Blackf. (Ind.) 300; Clem v. State, 31 Ind. 480; Davison v. People, 90 Ill. 221; Hurd v. People, 25 Mich. 405; Evans v. ing a felonious purpose. A felonious intent in such cases will not be implied, but must be clearly proved.268 A common as State, 44 Miss. 762; State v. Evans, 65 Mo. 574; State v. Thomas, 98 N. C. 599, 2 Am. St. Rep. 351; State v. Douglass, 28 W. Va. 297. 268 Wild's Case, 2 Lewin, C. C. 214, Beale's Cas. 347 (where a man kicked another in ejecting him from his house); Turner's Case, 1 Ld. Raym. 143 (where a servant was hit on the head with a clog); Rex v. Kelly, 1 Mood. C. C. 113 (where it was uncertain whether the deceased was killed by a blow with the fist, which threw him upon a brick, or by a blow from a brick); Wellar v. People, 30 Mich. 15 (where a man struck his wife with his fist, and perhaps kicked her); State v. Jarrott, 1 Ired. (N. C.) 76 (where the blow causing death was given with a stick). See, also, Darry v. People, 10 N. Y. 120; Com. v. Fox, 7 Gray (Mass.) 585; State v. McNab, 20 N. H. 160; State v. Smith, 32 Me. 369; Williams v. State, 81 Ala. 1; Sylvester v. State, 71 Ala. 17. A familiar illustration is in the case of death caused in a prize fight, which is held to be manslaughter only, unless an actual intent to kill or inflict great bodily harm is shown. 1 East, P. C. 270; Rex v. Murphy, 6 Car. & P. 103; Rex v. Hargrave, 5 Car. & P. 170. A stick or pocket knife may be a deadly weapon. It is so, if of such a size, or used in a way, as to be likely to cause death. Sylvester v. State, 71 Ala. 17; State v. West, 6 Jones (N. C.) 505. sault which is not committed with a deadly weapon, nor under such circumstances as to naturally cause death or great bodily harm, will not supply the element of malice necessary to constitute murder, where there is no actual intent to kill. This distinction is clearly brought out by Judge Campbell in a Michigan case. "It is not necessary in all cases," he said, "that one held for murder must have intended to take the life of the person he slays by his wrongful act. It is not always necessary that he must have intended a personal injury to such person. But it is necessary that the intent with which he acted shall be equivalent in legal character to a criminal purpose aimed against life. Generally, the intent must have been to commit either a specific felony, or at least an act involving all the wickedness of a felony. And, if the intent be directly to produce a bodily injury, it must be such an injury as may be expected to involve serious consequences, either periling life or leading to great bodily harm. There is no rule recognized as authority which will allow a conviction of murder where a fatal result was not intended, unless the injury intended was * * one of a very serious character, which might naturally and commonly involve loss of life or grievous mischief. Every assault involves bodily harm. But any doctrine which would hold every assailant as a murderer where death follows his act would be barbarous and unreasonable. In general, it has been held that, where the assault is not committed with a deadly weapon, the intent must be clearly felonious, or the death will subject only to the charge of manslaughter. The presumption arising from the character of the instrument of violence is not conclusive either way, but, where such weapons are used as do not usually kill, the deadly intent ought to be left in no doubt. There are cases on record where death by kicking and beating has been held to warrant a verdict of murder, the murderous intent being found. But where there was no such intent, the ruling has been otherwise. * Where the weapon or implement used is not one likely to kill or to maim, the killing is held to be manslaughter, unless there is an actual intent which shows a felonious purpose.' " 269 269 Wellar v. People, 30 Mich. 16. |