SECTION 3.-CONSTRUCTIVE INTENT.

ISHAM v. STATE.

(Supreme Court of Alabama, 1862. 38 Ala. 213.)

The indictment in this case contained three counts; the first charging that the prisoner, who was a slave, the property of Capt. W. F. Hanby, "unlawfully and with malice aforethought killed George M. Hagood, by shooting him with a gun"; the second, that he "unlawfully and intentionally, but without malice, killed George M. Hagood, a white person," etc.; and the third, that he "unlawfully, but without malice or the intention to kill, killed George M. Hagood, a white person," etc. The circuit court sustained a demurrer to the third count, and the prisoner pleaded not guilty to the other counts.

The prisoner asked the court to charge the jury as follows: “If the jury believe, from the evidence that the deceased disguised himself, by blacking himself and the manner in which he was clothed, for the purpose of deceiving the prisoner and making him believe that he was a runaway slave, and under such disguise went to the prisoner's house on his master's premises at an unusual hour of the night, between midnight and day, and there, by his disguised condition and the manner in which he acted, deceived the prisoner, and that the prisoner in truth and in fact believed that the deceased was a runaway negro slave, and under that delusion shot and killed the deceased, then he is neither guilty of murder, nor of the voluntary manslaughter of a white person, nor of the involuntary manslaughter of a white person in the commission of an unlawful act." The court refused this charge, and the prisoner excepted.

The verdict of the jury was, "Guilty of voluntary manslaughter, as charged in the second count in the indictment."

A. J. WALKER, C. J. It is not indispensable to the constitution of a crime that the prisoner should commit the very act intended. Certainly there must concur a wrongful intent and a wrongful act. But he who, aiming to accomplish one wrongful act, fails in that, but perpetrates another, is not excused. The wrongful intent and the wrongful act are said to coalesce and make the crime. Bishop on Cr. Law, § 254. Numerous illustrations of this doctrine are to be found in the books. Where there is a design to commit a felony, and a homicide ensues, against or beyond the intent of the party, he is guilty of murder; but, if the intent went no further than to commit a bare trespass, it will be manslaughter. 1 East's Cr. Law, 255. If A. gives a poisoned apple to B., intending to poison B., and B., igno

1 Part of this case, relating to another point, is omitted.

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rant of it, gives it to a child, who takes it and dies, A. is guilty of the murder of the child, but B. is guiltless. And so, if one, out of malice at A., shoots at him, but misses him and kills B., it is no less murder than if he killed the person intended. Wharton's Cr. Law, § 965. These illustrations will suffice to show that, to the conviction of a slave for the homicide of a white man, it is not indispensable that there should exist an intent to kill a white person, or even_a knowledge that the deceased was a white man. Indeed, one may be guilty of involuntary manslaughter, where there was no intent to kill. A homicide, resulting from an attempt to commit any unlawful act, would be manslaughter; and therefore, if a slave should shoot unlawfully at a beast, and by chance kill a white person, he would be guilty of the involuntary manslaughter of a white person in the commission of an unlawful act, although he might be ignorant of the proximity of the person slain. Surely the crime could not be less, if the purpose was to kill a negro instead of a beast; and yet such is the conclusion to which the argument for the prisoner would lead. The statute does not make a knowledge that the deceased was a white person an ingredient of the offense, and we cannot decide that it is. There being a criminal intent, the defendant is guilty, notwithstanding he was mistaken as to the person upon whom his unlawful purpose fell. See the authorities collected in 1 Bishop on Cr. Law, § 247, and on the Attorney General's brief.

The fifteenth of Lord Bacon's maxims is as follows: "In criminalibus, sufficit generalis malitia intentionis, cum facto paris gradus." 3 Bacon's Works, 238; Broom's Legal Maxims, 238. In reference to this maxim the learned author says: "All crimes have their conception in a corrupt intent, and have their consummation and issuing. in some particular fact, which, though it be not the fact at which the intention of the malefactor leveled, yet the law giveth him no advantage of that error, if another particular ensue of as high a nature." We do not find this maxim so recognized by subsequent writers on the criminal law, and by those adjudging criminal causes, as to induce us without hesitation to adopt it as a correct exposition. The explanation of the maxim would seem to imply that, to constitute the crime, it is only necessary that the act should be of as high a nature as the intent, and not to imply a denial that the crime might take its complexion from an act of criminality higher than the intent. If this be the construction, it would not aid the accused. If the maxim import that there must be a perfect correspondence between the intent and the act, it cannot be harmonized with principles too well established to be controverted. A homicide, not intended, but committed, in the perpetration of burglary or arson, would be murder, notwithstanding the offenses intended are not, in our law, of as high a grade or subject to as severe penalties as murder. We shall not engage in any speculation as to the true import and operation, or the authority, of the maxim, but shall content ourselves with

announcing the conclusion that we cannot be led by it to oppose the proposition which we now proceed to state, as follows:

A slave, who kills a white man, intending to kill a negro, is guilty of a criminal homicide in the degree in which he would have been guilty if the person slain had been a negro, and he is subject to the punishment prescribed for the commission of the offense upon a white person. The maxim, in its literal translation, only requires that the act should be of equal grade with the intent; not that the same punishment should be incident to the thing done as to the thing intended. Crimes may be of the same degree, and yet subjected by law, founded in public policy, to different punishments. The manslaughter of a white man by a slave and the manslaughter of a negro by a slave belong to the same degree of homicide, and yet are subjected to variant punishments. So, also, manslaughter committed with a bowie knife and manslaughter committed with a different weapon are offenses of the same degree, and yet there is a distinction made in the punishments prescribed. Numerous other illustrations might be drawn from our criminal law. In all those cases, as in this, the difference is not in the degree, but in the punishment; and the difference in the punishment is the result of some incident to the crime, which from public policy the law makes an aggravation. If, therefore, we take the maxim in its literal import, we find nothing inconsistent with our position.

In the case of Bob v. State, 29 Ala., 20, it was argued that the prisoner, a slave, when committing an assault and battery upon another slave, by accident struck and killed the deceased, who was a white person. In reference to that aspect of the case, this court said: "We hold that if a slave, in the attempt unjustifiably to commit an assault, or assault and battery, on another slave, kill a white person. by misadventure, he is guilty of involuntary manslaughter, under section 3312 of the Code of 1852." This is an express adjudication of the point, made in this case, that a slave cannot be guilty of manslaughter of a white person, when the intent was aimed at a negro. If one, intending to beat a negro and unintentionally killing a white person, is guilty of the homicide of a white person, a fortiori is a slave thus guilty, when, intending to kill a negro, he by mistake kills a white person.

We are content to abide by the decision in Henry's Case, 33 Ala. 389. Upon the principle of that decision, the accused might be convicted of the involuntary manslaughter of a white person, under a count for the voluntary manslaughter of a white person. There was, therefore, no error in the charge given by the court.

The judgment of the court below is affirmed, and its sentence must be executed, as therein ordered.*

2 See. also, Rex v. Pedley, Cald. 218 (1782); State v. Wagner, 78 Mo. 644, 47 Am. Rep. 131 (1883); Reddick v. Commonwealth (Ky.) 33 S. W. 416 (1895).

The facts of the case were as follows: The prisoner, John Richard Packard, was a chemist in Drury Lane; and on the 5th of November, 1841, an officer of the sheriff of Middlesex named Hamblyn, having a warrant against his goods, executed it about 12 at noon, and left the deceased, Michael Aungier, in possession for him. Aungier, according to the evidence of Hamblyn, was a man in good health, about 60 years of age, and was quite sober at the time he was left on the premises about 1 o'clock in the day. The deceased remained in the kitchen of the house, and was quite sober up to 9 o'clock in the evening. At that time John Richard Packard went into the kitchen, and the deceased asked him for a glass of gin. He replied, "Very well; you shall have it;" but instead of a glass of gin, gave him a glass of rum and water, which he drank. About halfpast 9 J. R. Packard asked him to go into the parlor.

It further appeared that the remainder of the evening was spent by Aungier, John Packard, Joseph Packard, and Kennett in eating and drinking; that at half-past 1 o'clock Aungier was very drunk, and unable to help himself; that he was given more liquor by the prisoners, and then carried by them down the stairs and put into the cabriolet, two of the defendants riding on the box. The cabman, by direction of the prisoners, drove to Covent Garden, and, arriving there, the prisoners left the cabriolet without taking any notice of deceased, and ordered the cabman to drive to No. 18 Chancery Lane. The cabman drove to his destination, and, after fruitless efforts to arouse the inmates, drove to Bow street, took deceased from the cab and placed him on a doorstep, and waited for a policeman, who, coming up a few minutes later, pronounced Aungier dead.1

PARKE, B. The first question will be whether the prisoners, or any of them, put the deceased into the cabriolet; and upon this I think nothing need be said. If you are of opinion that they did, then the questions will be: First, whether they, or any of them, were guilty of administering or procuring the deceased to take large quantities of liquor for an unlawful purpose, or whether, when he had taken it, they put him into the cabriolet for an unlawful purpose. If you think that the three prisoners, or one of them, made him excessively drunk to enable the prisoner, John Richard Packard, to prevent the completion of the execution, or if you are satisfied that the object of the prisoners, or any of them, was otherwise unlawful, and that the death of the deceased was caused in carrying their unlawful object into effect, they must be found guilty. The simple

1 Part of this case is omitted.

fact of persons getting together to drink, or one pressing another to do so, is not an unlawful act, or, if death ensue, an offense that can be construed into manslaughter; and if what took place in the present instance was really and solely for the purpose of good fellowship, for making merry, or causing the misfortunes of the elder Packard to be forgotten, though the act was attended with death, this will not be a case of manslaughter. Upon the first question I have stated it will be essential to make out on this indictment that the prisoners administered the liquor with the intention of making the deceased drunk and then getting him out of the house; and if that be doubtful, still, if you think that, when he was drunk, they removed him into the cabriolet with the intention of preventing his returning, and death was the result of such removal, the act was unlawful, and the case will be a case of manslaughter. If, however, you think they all got drunk together, and that afterwards he was put into the cabriolet with an intention that he should take a drive only, that was not an unlawful object, such as I have described, and the prisoners will be entitled to an acquittal; or if you entertain a conscientious doubt as to their real object, you ought also, on that ground, to acquit them. [His lordship then stated the circumstances of the case and proceeded.] The first point to be decided is whether the acts of the prisoners, whatever may be their character, were the cause of the death of the deceased. As to that, you are to look to the evidence of the surgeons, and see whether those acts caused the death of the deceased to take place when it did; that is to say, whether those acts accelerated his death. Now, it seems to result from what the surgeons say-and assuming the facts in evidence to be correct-that the acts of the prisoners did accelerate the death, and if you are of that opinion it will justify you in inquiring into those acts. One observation as to this is that one of the prisoners might have had a motive in getting the sheriff's officer out of possession voluntarily for the purpose of disposing of the goods he had seized, and that in furtherance of that motive the original object of all was to make him drunk, and so to get rid of him. But, supposing you cannot clearly trace that intention, still you will have to inquire with what view they put him into the cabriolet, left him in Covent Garden, and gave a false address, to which they directed he should be driven. It is true that there is no direct proof that any one pressed him to drink; but, if the liquor was placed before him with the illegal object I have mentioned, that would be enough without such direct proof. You will therefore consider whether all three, or any, of the prisoners had this illegal object; whether they made the deceased drunk with a view of getting rid of him from the house, and then, with the same intention, put him into the cabriolet; or whether, having made him drunk without any such original object, when he was drunk they put him into the cabriolet for the purpose of so getting rid of him; and whether you are sat