The defendant having in mind merely the initiation of a refreshment-stall keeper at a summer resort, took a large box from the stall and threw it into the sea. It fell on a bather in the sea and killed him; and the court instructed the jury that the intention to injure the refreshment-stall keeper was not sufficient to make the defendant liable for manslaughter, but that if the act he did was so manifestly dangerous to life, that one of ordinary prudence might see that death might result, the defendant would be liable; and on this ground he was convicted (5).

§ 33. Mere recklessness and negligent omission of duty. The case just cited furnishes a very apt illustration of the rule of liability for mere recklessness resulting in injury; what has been said above in §14 and §15 makes sufficiently clear the rule of liability for negligent omissions of duty; and therefore nothing further need be said on these points.

§ 34. Intention must exist at the time. As has already been intimated, no crime is committed unless the act which the law declares criminal and the intention to do it exist at the same time. If the intention exists at one time and later unintentionally the act is done, or if the act is done without criminal intent and later the criminal purpose is conceived, no crime is made out; the two must co-exist. For example, if a person finds lost property, knowing who the owner is, and picks it up with the design of taking it to the owner, no intention to appropriate it to his own use, formed after he has reduced it to his possession, would make the taking larceny. What one

(5) Queen v. Franklin, 15 Cox Cr. Cases 163.

commands another to do he is himself responsible for; but if my agent commits a crime without my knowledge or consent and I ratify his act by accepting the proceeds of his transaction, I do not thereby become criminally liable for the doing of the act, because my intention did not exist when the act was done. And yet very frequently the intention existing at the time may justly be inferred from acts done afterwards.

§ 35. Proof of intention. The intention being a state of mind is not open to observation like substantial things on the surface, but can be known only by the conduct of the person. What a man thinks and intends is known from what he does. Acts performed a long time before, or a long while after may throw light upon the intention existing at the time of the crime. The best proof of intention at the time is the action at the time. What a person in possession of his faculties does, he is presumed to intend to do; and ordinarily we have no satisfactory means of determining one's intent except by his conduct.

On an indictment for burglary it was objected in behalf of the prisoner that there was no proof of intention to commit burglary because the defendant did not take enough property from the building to make the larceny a felony; that he could not be presumed to have intended to take more than was in the building, and there was not enough in the building. But the court said that the fact that he took anything indicated that he would have taken whatever he could have found, and the crime consisted not in taking the property, but in breaking and entering the building for the purpose of taking it; and his purpose

in entering was manifested by what he did after he entered (6).

On the other hand, when a man went to a hotel and registered, and in the night left his room and stole cigars and money from the bar-room, the court held that from the subsequent act of stealing no presumption was warranted that he went to the house for the purpose of stealing, so as to make his fraudulent entry and registering amount to a constructive breaking into the building at night, so as to make the crime burglary. The court said: "If after having made an entry into the house by authority of law, he committed a trespass, he may be held civilly responsible as a trespasser ab initio. This principle has always been recognized since the decision of the Six Carpenters' Case (7). The prisoner, therefore, had a right to enter the inn and the bar-room; and the question arises whether the larceny committed in the bar-room can relate back, and give a character to the entry into the house, so as to make it criminal and the prisoner punishable for it, upon reasoning similar to that, which, in a civil action, would render him liable as a trespasser ab initio. Except the inference that may lawfully be made from the act of larceny there is no evidence that he entered with any illegal purpose, or a felonious intent. Where the law invests a person with authority to do an act the consequences of an abuse of that authority by the party should be severe enough to deter all persons from such an abuse. But has this 'policy of law' been extended to criminal

cases? We are not aware that it has. It is true that, in order to ascertain the intent of the accused, the law also regards the nature of the act committed, but this is generally such an act as could not have been committed with any other than a criminal purpose. Thus, the act of secretly taking the property of another, necessarily raises the presumption that the party intended to steal.

But where one lawfully enters a house, it by no means follows that because he steals while there, he entered with that purpose" (8).

§ 36. Acts criminal by statute when done unintentionally. It is believed that no act unintentionally done and not resulting from negligence is criminal in the absence of the statute. But there is a large class of cases in which the difficulty of proving intention, the danger of miscarriage of justice from inability to prove it, and the danger to the public from violation of the statute, are so great that the legislature has deemed it politic to make all persons acting in such matters move at their peril. Whether this is the case under any particular statute depends upon the intention of the legislature, which may be clearly and explicitly expressed or only to be gathered from the general terms of the statute.

One indicted under a statute making it a misdemeanor to sell watered milk contended that the prosecution must prove that he knew the milk was watered. But the court held that knowledge of this fact was no essential ingredient of the crime, because the language of the statute did not require such proof. "The statute of 1863, c. 140, re

(8) State v. Moore, 12 N. H. 42.

quired such proof, and one of the reasons which induced the legislature to repeal it and substitute an existing statute for it undoubtedly was that they regarded it as impracticable in most cases to prove the knowledge, and that they also regarded it as reasonable under all the circumstances that the seller of milk take upon himself the risk in knowing that the article he offers for sale is not adulterated. It is one of the greatest importance that the community shall be protected against the frauds now practiced so extensively and skilfully in the adulteration of articles of diet by those who deal in them; and, if the legislature deem it important that those who sell them shall be held absolutely liable, notwithstanding their ig norance of their adulteration, we can see nothing unreasonable in throwing this risk upon them. It is the same risk which every man takes who sells intoxicating drinks, the law making him liable to the penalty, although it is not proved that he knew that the liquors were intoxicating" (9).

§ 37. Specific intent. Where the crime consists of the three elements, the act done, the intention to do it, and the criminal purpose to be accomplished thereby, no conviction can be had by proof of the act intentionally done without proof of the particular criminal purpose to be accomplished thereby, which constitutes the specific intent essential to that particular crime. For example, when a night watchman attempted to arrest a burglar discovered in the shop at night, the latter struck the watchman twice with a crow-bar, and then ran away, telling

(9) Commonwealth v. Farren, 9 Allen 489.