The principle was also applied in a South Carolina case, where a man recklessly shot in the direction of another for the purpose, as he claimed, of making his horse throw him, and killed a bystander. He was convicted of murder.280 Death resulting from severe torture, wantonly inflicted with the design of producing grievous suffering, will render the person causing the death guilty of murder, and not merely of manslaughter 281

247. Willful Omission to Perform a Legal Duty.

To be guilty of murder, a man need not necessarily do a positive act. The crime

in itself, lawful, or, even if unlawful, not dangerous in its character, the rule is different. In cases like the present, the presumption is the mind assented to what the hand did, with all the consequences resulting therefrom, because it is apparent he was willing that any result might be produced, at whatever of harm to others. In the other case, the result is accidental, and therefore not presumed to have been within the contemplation of the party, and so not to have received the assent of his mind."

280 State v. Smith, 2 Strob. (S. C.) 77, 47 Am. Dec. 589, Beale's Cas. 468.

281 State v. Hoover, 4 Dev. & B. (N. C.) 365, 34 Am. Dec. 383.

may be committed by mere nonfeasance, or omission to act at all, where there is a duty to act. Ordinarily, to cause death by criminal neglect of duty is manslaughter,282 but if the omission is willful, and the natural tendency is to cause death or great bodily harm, and death ensues in consequence, it is murder. For example, if a father neglects to provide shelter and food and medical attendance for a child that is helpless and dependent upon him, where he has the means to do so, but not willfully, he is guilty of manslaughter only.283 But if he does so willfully, and with reckless disregard of the consequences, and a fortiori, when he actually intends to cause death, he is guilty of murder.284 And the same is true in any other case where a person willfully fails to provide for the necessities of a helpless person under his special charge, when he is under a legal duty to provide for him.285 The

282 Post, § 265.

283 Post, § 265 d.

284 Reg. v. Conde, 10 Cox, C. C. 547, Beale's Cas. 424. And see Lewis v. State, 72 Ga.

Am. Rep. 835.

285 See Reg. v. Bubb, 4 Cox. C. C. 455. post, § 265 d.

164, 53

And see

principle also applies where a switchman in the employ of a railroad company willfully omits to adjust a switch, and thereby causes a collision between trains, and the death of a passenger, or of another employe of the railroad company. 286

In all cases, to render one responsible for a homicide by reason of mere nonfeasance, he must have omitted some duty which he was legally bound to perform. A man who sees a stranger drowning, or about to take poison by mistake, or about to commit suicide, is not under any legal duty, as distinguished from mere moral duty, to save him, and his omission to do so, whatever may be his motive, cannot render him guilty of murder.287

248. Homicide in the Commission of a Felony.

(a) In General.-At common law, malice was implied as a matter of law in every case of homicide while engaged in the commission of some other felony, and such a killing was murder whether death was intended or not. The mere fact that the party

286 State v. O'Brien, 32 N. J. Law, 169. 287 See post, § 265 e.

was engaged in the commission of a felony was regarded as sufficient to supply the element of malice.288 On this principle, it was murder at common law to unintentionally kill another in committing, or attempting to commit, burglary, arson, rape, robbery, or larceny.289 The doctrine has repeatedly been recognized and applied in this country,

288 Fost. C. L. 258; 1 Hale, 475.

"Every felony, by the common law, involved a forfeiture of the lands or goods of the offender, upon a conviction of the offense; and nearly all offenses of that grade were punishable with death, with or without benefit of clergy. In such cases, therefore, the malicious and premeditated intent to perpetrate one kind of felony was, by implication of law, transferred from such offense to the homicide which was actually committed, so as to make the latter offense a killing with malice aforethought, contrary to the real fact of the case as it appeared in evidence." People v. Enoch, 13 Wend. (N. Y.) 159, 27 Am. Dec. 197, 200.

289 Steph. Dig. Crim. Law, art. 223; Reg. v. Greenwood, 7 Cox, C. C. 404, Beale's Cas. 424; Reg. v. Serne, 16 Cox, C. C. 311, Beale's Cas. 465; State v. McNab, 20 N. H. 160; State v. Cooper, 13 N. J. Law, 361; State v. Shelledy, 8 Iowa, 477; Adams v. People, 109 Ill. 444, 50 Am. Rep. 617; Smith v. State, 33 Me. 48, 54 Am. Dec. 607; Com. v. Riley, Thatch. C. C. (Mass.) 471; Kennedy v.

and is to be regarded as still in force, except where it has been expressly abrogated by statute.290

The decisions at common law do not require that the act done shall have been of such a nature as to endanger life, or threaten great bodily harm, but the malice necessary to constitute murder is implied from the mere fact that the accused was committing, or attempting to commit, a felony. This was certainly the common-law doctrine. If it had been otherwise, the doctrine would have been altogether unnecessary, because the killing would be murder because of the tendency of the act,291 without regard to its being done in the commission of a felony.292 The doctrine, in so far as the commission of felonies not dangerous to life is concerned, has been criticised and

State, 107 Ind. 144, 57 Am. Rep. 99; Dill v. State, 25 Ala. 15.

290 People v. Enoch, 13 Wend. (N. Y.) 159, 27 Am. Dec. 197.

291 Ante, § 244.

292 In Reg. v. Greenwood, 7 Cox, C. C. 404, Beale's Cas. 424, the accused had communicated a venereal disease to a woman in committing a rape upon her, and the court charged the jury