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done after the passing of the statute of 1814, and before that of 1830. The act cannot be punished as an offense at common law, for that was not in force during the continuance of the statute; nor by the statute of 1814, because it has been repealed without any saving clause; nor by the statute of 1830, for the act was done before that statute was passed." (4)

§ 13. Must be criminal act done. No mere secret intention, wholly unexecuted, no matter how criminal, will constitute a crime. There must be a criminal act done. If in passing along the street I design to steal money from the pockets of the passersby, and positively determine upon it, no crime is committed. If I put my hand into the pocket of a passerby, with the design of taking what is in the pocket, this is a criminal act done, though there be nothing in the pocket to steal. The crime is not larceny, but attempt to commit larceny. Moreover, the act done must be a criminal act. If I design to steal an umbrella and go into the cloak room for that purpose, and finding an umbrella there run away with it, with the design of stealing it, nevertheless no crime has been committed if it turns out in the end to have been my own umbrella. An actual case will illustrate this point. A man was prosecuted for obtaining money by false pretenses, of which crime one of the essential ingredients is the making of a false pretense. The allegation in the indictment was, that, designing to cheat and defraud, he falsely represented that a certain piece of property belonged to him and was free

(4) Commonwealth v. Marshall, 11 Pick. 350.

from incumbrance, and obtained a loan on that statement. The proof was that he had given a mortgage upon the property to another creditor. But as he had misdescribed the property in the prior mortgage, so that it did not create an incumbrance upon the property, the statement he had made that the property was his and unincumbered was true; and so no crime had been committed, although he supposed the statement was false, and designed to deceive and defraud (5).

§ 14. Act may be mere criminal omission. From the statement that a crime is a wrong done, the reader must not suppose that a positive act is essential to make a crime. The act may be either positive or negative. A neglect of duty may be just as criminal as a positive act. But to make a person liable criminally for neglect there must be either a reckless doing of some positive act, perhaps innocent enough in itself if carefully done, such as riding in an automobile on a public street, or there must be a positive duty to act which is criminally neglected.

This duty to act may arise from express contract, as in the case of one who engages to watch at a switch and turn it on the approach of passing trains, and who, in criminal neglect of his duty, fails to turn the switch as he should, from which injury results; or the duty may arise from the relation which the defendant bears to the person suffering from his neglect, though that relation may have arisen without any contract between the parties. For example, the parent owes a duty to protect his child from danger and provide it with necessary

(5) State v. Garris, 98 N. C. 733.

clothing, food, etc., while it is too young to provide for itself; and if he neglects to provide for it, having ability to do so, due to which neglect it dies from starvation or exposure, he is liable criminally for the death. It has even been held that a woman living with her aunt and provided for by her aunt's charity, bore such a relation to the aunt, as a result, that she was liable for manslaughter in neglecting to take food to the aunt and attend her while she was prostrated in the house so that she could not procure food for herself, from which neglect she died of starvation and exposure, while the niece lived in the house upon her means, and neglected to wait upon her or inform the neighbors of her condition (6).

§ 15. Must be duty neglected. But in order to convict of crime by neglect there must be proof of an act negligently done, or of a positive duty omitted. If every person, whether employed in that capacity or not, were bound at his peril to guard against every danger to which anyone might be exposed, to rush in and adjust every piece of machinery which to him might look dangerous, though beyond his understanding, the results would be worse than if every man were bound to perform his own duty, and all others were excused. It may be a matter of debate whether inaction in the face of manifest danger to a stranger should not be made a crime; for example, whether a passenger on a boat seeing another fall overboard and making no attempt to rescue, should not be punished criminally for his inaction. But if a passenger were attempting to rob another, or do him

(6) Queen v. Instan, (1893) I Q. B. 450.

some bodily harm, and the deceased, in attempting to escape from him, should jump or fall into the sea, the wrong which the assailant has done perhaps imposes a duty on him to rescue the man overboard, and for this neglect he would perhaps be liable criminally. Yet it was held in a recent case in Michigan that a man was not liable for homicide who saw a woman with whom he had maintained illicit relations take a dose of poison with suicidal intent, and made no attempt to prevent her taking it, or to call a physician to save her life after she had taken it. The reason given was that he owed her no duty, as he would his wife or child (7).

§ 16. Negligent action distinguished from lack of discretion. If one does the best he knows how he is not liable criminally, though persons of ordinary discretion would have known better than to do as he did, unless the law positively prescribes what shall be done, as in the case referred to above, of the statute requiring a physician to be called when any of the family is afflicted with certain diseases named (8). Before that statute was passed a man of the sect of "peculiar people" was indicted for mistreating a sickly child by anointing it with oil and praying over it until it died; but the court held that he was not liable criminally for his lack of discretion, the treatment being what he supposed was best for the child. Any other rule would make him liable, not for the lack of wisdom in his course of treatment, but according to the opinions of the people among whom he

(7) People v. Beardsley, 150 Mich. 206.

(8) § 10, above.

lived and before whom he was brought to trial (9). A ship was caught in a storm at sea, one of the sailors was aloft a hundred feet in the rigging; a flying yard-arm knocked him into the sea; the captain was informed, but made no attempt to rescue him, and on reaching shore was indicted for manslaughter. The court held that if the captain believed that turning about to rescue the sailor would endanger the safety of the crew, and therefore neglected to attempt rescue, he was not liable, however erroneous his judgment on this point (10).

§ 17. Liability for remote and indirect consequences. From the statement in the definition above, that a crime is a wrong done, it must not be assumed that the accused is liable criminally only for the direct, manifest, and immediate consequences of his act. The rule on this subject is, that the accused is liable not only for the act he intended to do, but for all the results that flow as a natural and probable consequence from it. If I do a wrong to another I am liable for the natural consequences, although my wrong would not have resulted so seriously but for facts I did not know. A man afflicted with heart disease was assaulted and beaten by the accused, who did not know of the heart disease. The assault upon the deceased in his diseased condition resulted in death from heart failure, and the accused was held liable for manslaughter, although the assault would not have resulted in death to a healthy person (11). Where death resulted from a wound and subsequent in

(9) Regina v. Wagstaffe, 10 Cox Cr. Cas. 530.

(10) United States v. Knowles, 26 Fed. Cases, 800. (11) State v. O'Brien, 81 Iowa 88.

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