out a deadly weapon, and death results therefrom, the killing will not amount to murder, but will be manslaughter only.270 But an assault may be made with the fists or feet in such a manner that the law will imply the malice necessary to constitute murder. Thus, if a strong man should strike or kick a very young infant, or should intentionally kick a grown person in a vital spot, as in the temple, the natural result of such an act would be to kill, or at the least to inflict great bodily harm, and the felonious intent should be presumed.271

(d) Setting Fire to a Building.-On the principle stated above, a man is guilty of murder if he willfully sets fire to a building in which he knows, or ought reasonably to know, there are human beings, and burns them to death, though the building may not be a dwelling house, and he may not be guilty

(e) Committing, or Attempting to Commit, an Abortion.Since an attempt to procure an abortion by the use of instruments or drugs, where the woman is quick with child, is an unlawful act endangering her life, unintentionally causing her death in such an attempt is murder. 273 The same principle

270 Wellar v. People, 30 Mich. 16; Wild's Case, 2 Lewin, C. C. 214, Beale's Cas. 347; and other cases above cited.

271 McWhirt's Case, 3 Grat. (Va.) 594, 46 Am. Dec. 196; Pennsylvania v. Honeyman, Add. (Pa.) 147, Mikell's Cas. 595. And see Murphy v. People, 9 Colo. 435, 13 Pac. 528; State v. John, 172 Mo. 220, 72 S. W. 525, 95 Am. St. Rep. 513.

272 Reg. v. Serne, 16 Cox, C. C. 311, Beale's Cas. 465; Mikell's Cas. 600.

In Reg. v. Horsey, 3 Fost. & F. 287, Mikell's Cas. 599, an acquittal was had on the theory that deceased may have come into the inclosure after the fire was set, and hence his death was not the natural or probable result of the prisoner's act in setting it.

273 1 Hale, P. C. 429, 430; State v. Moore, 25 Iowa, 128, 95 Am. Dec. 776. See, also, Com. v. Keeper of Prison, 2 Ashm. (Pa.) 227; Ann v. State, 11 Humph. (Tenn.) 159; Com. v. Parker, 9 Metc. (Mass.) 263, 43 Am. Dec. 396; People v. Com., 87 Ky. 487, 9 S. W. 509, 810; State v. Lodge, 9 Houst. (Del.) 542, 33 Atl. 312.

must apply where the woman is not quick with child, if the attempt is made in a way to endanger her life.274

245. Reckless and Wanton Acts.

To make an unintentional killing by the use of a deadly weapon murder, the weapon need not be used in anger or illwill. It is sufficient if it is used wantonly and recklessly in such a way as to manifestly endanger life. In a South Carolina case, the defendant had wantonly fired his pistol in the direction of a man riding along the road, with the intent, as the evidence tended to show, to cause the man's horse to throw him, and the shot killed a bystander. He claimed that he shot merely as a joke, but a conviction was sustained. 275

246. Circumstances Showing an Abandoned and Malignant Heart.

It has often been laid down by writers on the criminal law and in the cases that, where the circumstances under which a man kills another show an abandoned and malignant heart, malice will be implied, and the killing is murder. This is a clearly settled principle of the common law,276 and in some states it is expressly declared by statute.2

277

274 Smith v. State, 33 Me. 48, 54 Am. Dec. 607; Com. v. Jackson, 15 Gray (Mass.) 187; State v. Alcorn, 7 Idaho, 599, 64 Pac. 1014, 97 Am. St. Rep. 252.

If the attempt is not made in such a way as to endanger life, or threaten great bodily harm, the homicide is manslaughter only. See post, § 263 d.

275 State v. Smith, 2 Strob. (S. C.) 77, 47 Am. Dec. 589, Beale's Cas. 468; State v. Young, 50 W. Va. 96, 40 S. E. 334, 88 Am. St. Rep. 846. And see Golliher v. Com., 2 Duv. (Ky.) 163, 87 Am. Dec. 493; State v. Harris, 63 N. C. 1; State v. Shaw, 64 S. C. 566, 43 S. E. 14, 60 L. R. A. 801 (where a boy was killed by brutal and continuous chastisement by one in loco parentis).

276 Com. v. Webster, 5 Cush. (Mass.) 295, 52 Am. Dec. 711; Mayes v. People, 106 Ill. 306, 46 Am. Rep. 698; McMillan v. State, 35 Ga. 54; State v. Smith, 2 Strob. (S. C.) 77, 47 Am. Dec. 589, Beale's Cas.

"If the act which produced the death," said the South Carolina court, "be attended with such circumstances as are the ordinary symptoms of a wicked, depraved, and malignant spirit, the law, from these circumstances, will imply malice, without reference to what was passing in the prisoner's mind at the time he committed the act."278

In an Illinois case, in which the defendant was indicted for the murder of his wife, it appeared that he came home after he had been drinking, and at once began to abuse the members of his family. He threw a tin quart measure at his daughter, and then threw a heavy beer glass in the direction of his wife. The glass struck a lamp which she was carrying, causing it to explode, and she was burned to death. It was held that the jury could properly convict him of murder, if they believed from the evidence that the circumstances showed an abandoned and malignant heart on his part, though he may have had no actual intention to kill his wife.279

468; State v. Hoover, 4 Dev. & B. (N. C.) 365, 34 Am. Dec. 383; State v. Shaw, 64 S. C. 566, 43 S. E. 14, 60 L. R. A. 801.

277 Thus, in Illinois it is declared by statute that "malice shall be implied when no considerable provocation appears, or when all the circumstances of the killing show an abandoned and malignant heart." In Mayes v. People, 106 Ill. 306, 46 Am. Rep. 698, this was said to be merely declaratory of the common law.

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

279 Mayes v. People, 106 Ill. 306, 46 Am. Rep. 698. "It was utterly immaterial," said the court, "whether the plaintiff in error intended the glass should strike his wife, his mother-in-law, or his child, or whether he had any specific intent, but acted solely from general malicious recklessness, disregarding any and all consequences. It is sufficient that he manifested a reckless, murderous disposition,— in the language of the old books, 'a heart void of social duty, and fatally bent on mischief.' A strong man who will violently throw a tin quart measure at his daughter,-a tender child, or a heavy beer glass, in a direction which he must know will probably cause it to strike his wife, sufficiently manifests malice in general to render his act murderous when death is the consequence of it. He may have intended some other result, but he is responsible for the actual result. When the

C. & M. Crimes-22.

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 makng 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 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. 282a For example, if a fa

ther 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 reck

act is, 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; Chapman v. State, 43 Tex. Cr. R. 328, 65 S. W. 1098, 96 Am. St. Rep. 874; State v. Shaw, 64 S. C. 566, 43 S. E. 14, 60 L. R. A. 801. 282 Post, § 265.

282a Ter. v. Manton, 7 Mont. 162, 14 Pac. 637, 8 Mont. 95, 19 Pac. 387; State v. Shelledy, 8 Iowa, 477; Lee v. State, 1 Cold. (41 Tenn.) 62. 283 Post,

265 d.

less 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

286

The 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." 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 was engaged in the commission of a felony was regarded as sufficient to supply the element of malice.288

284 Reg. v. Conde, 10 Cox, C. C. 547, Beale's Cas. 424. And see Lewis v. State, 72 Ga. 164, 53 Am. Rep. 835.

285 See Reg. v. Bubb, 4 Cox, C. C. 455; Ter. v. Manton, 7 Mont. 162, 14 Pac. 637, 8 Mont. 95, 19 Pac. 387. And see post, § 265 d.

286 State v. O'Brien, 32 N. J. Law, 169, Mikell's Cas. 218.

287 See post, § 265 e.

298 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