thought,' which proceeds from (1) an intent to take life without excuse, (2) or the intended commission of some other felony, or (3) of some misdemeanor of a sort to endanger life, or (4) the inexcusable use of a dangerous weapon, or (5) some other purpose equal in malignity," 2 Bish. Crim. Law, 6 ed. §734.

Whenever an unlawful act, an act malum in se, is done in prosecution of a felonious intention, and death ensues, it will be murder. 1 Russ. on Cr. 454. So where there is a general malice, or depraved inclination to mischief, fall where it may, and the act itself being unlawful, is attended with serious danger, or is done with a mischievous intent to hurt people, and death results, the killing will be murder. Id. It will be observed that malice is essential to murder-is the test without which there can be no murder at common law. It may be express or implied, actual or constructive. Lord Hale says: "Malice, in fact, is a deliberate intention of doing any bodily harm to another, whereunto by law he is not authorized.” Hale P. C. 451. "Express malice is said to exist when one person kills another with a sedate, deliberate mind and formed design." Whart. on Hom. §35; or "Malice may be defined as an evil intent." Id. §18; "Malice is a condition of the mind which shows a heart regardless of social duty, and fatally bent on mischief." State v. Wieners, 66 Mo. 11, 6 Cent. L. J. 70. The writer of an able article on

the degrees of murder, in a former number of the JOURNAL (6 Cent. L. J. 225), gives his opinion of malice as follows: "From an examination of the whole question, upon principle and authority, I conclude that malice, as an ingredient in murder, is a condition of the mind evidenced by the intentional doing of a wrongful act, not in the 'heat of passion,' which might reasonably be expected to result in death or bodily harm to some human being." This is a good definition of malice in fact, or express malice, and perhaps more, but it falls short of defining implied or constructive malice, as recognized by law. man intentionally do a wrongful act, an act malum in se, “which may be reasonably expected to result in death or bodily harm," and death results, we draw the conclusion of malice from the act. There can

If a

not be a crime without a criminal intent, the intent must in some way be evil, but the intent need not necessarily be to do the specific wrong actually perpetrated, and, therefore, "it is a common and plain rule that whenever one does an act with the design of committing any felony, though not a felony dangerous to human life, yet if the life of another is accidentally taken, his offense is murder." 2 Bish. Crim. Law, 6 ed. §693. This is undoubtedly the law, but it does not fully accord with the general theory that the intent is the essense of the crime. There should be some logical connection between the actual intent and the act for which the party is punishable, as where the act done and intended, as in the examples generally given, was dangerous to human life, or might reasonably be expected to result in death or great bodily harm, then it would be just to infer the necessary malice. But when the felony intended was not dangerous to human life, and the death is accidental and could not have been reasonably anticipated, it looks like punishing an intent to commit an ordinary felony with the penalty attached to murder. However that may be, the law in such case arbitrarily extends the intention to the whole of the mischief actually resulting from the felonious act, and supplies the malice essential to murder as a conclusion of law, whatever the real condition of the mind may have been.

Malice as applied to a homicide has no existence at all in many felonies, such as burglary, robbery or rape, etc., at least it is not an essential element in such offenses, therefore it could not be transferred to the homicide, except by an arbitrary conclusion of law. The writer of the article referred to says that, "murders committed in the perpetration or attempt to perpetrate felonies are not murders. by reason of the law attaching the intent to commit the collateral felony to the homicide, for it must be murder at the common law, and hence there must be malice independent of the intent or rather attempt to commit the felony in order that the crime may come within the particular description to constitute it. murder in the first degree." There can be no murder without malice, and if the law does. not extend the wrong intent or malice which is involved in the commission of the intended felony to the unintended homicide, it is not

easy to see how it, malice, gets there. Such a homicide is murder at common law, not by reason of any malice disconnected with the intended felony, but because of the intention to commit the felony, and without such intent the act would not be murder at common law. Therefore it follows that the above statement of the learned writer is not exactly correct, and that it is the presence of the intent to commit the collateral felony that constitutes the homicide murder at common law (66 Mo. 11: 68 Mo. 408,) and if the felony attempted be one named in the statutory designation of murder in the first degree, the murder is of that degree. It is so for two concurring reasons: first, because such a homicide is murder at common law; second, because it falls within the designation of murder in the first degree.

We have already stated that it was difficult to see why the former statute, or rather the phrase "other felony," should be construed to refer to felonies other than the commission

or attempt to commit the felony of great bodily harm upon the deceased. The wilful and malicious infliction of great personal injury whereby death resulted was murder at com. mon law, and such infliction of great bodily harm, being a felony, it follows that the homieide is murder in the first degree. If the great bodily harm be inflicted on sudden heat without malice, the homicide resulting would be manslaughter at common law and by statute, and consequently could not be murder in the first degree. To illustrate: Suppose A in sudden heat, upon sufficient provocation, inflicts upon B a blow or wound with a dangerous weapon, or which endangers life, he perpetrates a felony upon B, and if B dies A kills him in the perpetration of a felony, but the offense is only manslaughter, because such a killing was not murder at common law. suppose A intended to inflict personal injury only, an assault and battery, not intending great bodily harm, and not using a dangerous weapon, or dangerous means, and death ensues, this would not be murder at common law, and consequently would not be murder under the statute. But suppose A in malice intended to inflict great bodily harm upon B, or intended to maim him, and B dies, this would be murder at common law. 1 Russ, on Cr. 455; 2 Bish. Cr. L § 691. 693. And it would be murder in the first degree under the

Or,

statute, because it is a common law murder committed in the perpetration of a felony, and it does not alter the case that the intended felony is merged in the homicide, because there is no desire to prosecute for the felony. The doctrine of merger would absorb the felonly and defeat a prosecution for it, but it cuts no figures at all in the trial of the homicide. But as the law has been changed by substituting the word mayhem" in the place of the term "other felony," the question will not be of any consequence hereafter.

Another question may however arise under this statute. The statute declares that every murder which shall be committed in the perpetration of arson, robbery, rape, burglary or mayhem, shall be of the first degree. Every one of these collateral felonies has been enlarged by statute to embrace cases which were not such felonies at common law. We must look to the common law for the elements of murder. These felonies, as they existed at common law, or any other felony at common law, when homicide resulted, stamped it with

the character of murder. Now if the homicide must have been murder at common law, should we not look alone to some felony at common law, as essential to the completion of the crime of murder, in the absence of direct malice, and a wilful, deliberate, and premeditated killing; and if such felony is also one of those named in the statute, the case is murder in the first degree; but if the homicide happens in the perpetration of a statutory felony, an act which was not felony at common law, as arson by burning something which was not arson at common law, or burglary committed in the day time, or in some manner not burglary at common law, or mayhem by disfiguring etc., when such acts were not likely to produce death, and no death was intended or could be reasonably expected, is it murder under our statute? In other words, if such a case would not be murder by the common law, would the fact that it resulted from the commission of a statutory felony make it murder?

As before remarked the statute does not define murder in either degree, but simply devides or classifies it. In some States (Ohio, and Indiana, and perhaps others) the statute provides that every person who shall kill another in the perpetration or attempt to perpetrate arson, robbery, rape, etc.. shall be

deemed guilty of murder in the first degree. Under such a statute, if the killing occurred in the commission of any of those felonies as defined by statute, the case would be murder in the first degree. The supposed doubt or uncertainty in this matter grows out of the Missouri statute, in using the word murder in such a way as to assume that it had a technical legal meaning, and expressed a certain crime, and then proceeding to divide it into two degrees, connecting certain felonies with it, to assign it to the first degree, etc. The difficulty suggested may be more imaginary than real, and enough has been said to call attention to the point, so that if occasion arises the question may be raised and ruled upon, if there should appear to be anything in it in the judgment of the profession.

RIGHT TO INSPECTION OF COURT RECORDS.

RE MCLEAN.

United States Circuit Court, Southern District of Ohio, November, 1879.

A citizen of the United States does not possess at common law an inherent and unlimited right to inspect the books and records of the courts; such a right exists only as allowed by statute or rule of court.

SWING, J.:

This is a petition filed by Mr. J. R. McLean and the Enquirer Company, in which they set out that heretofore, to wit, on the 7th day of November, 1879, application was made to Thomas Ambrose, clerk of this court, by J. H. Woodward, an agent of said Enquirer Company, for leave to inspect during officer hours books containing the docket and minute entries, judgments! and decrees of the said District Court and the United States Circuit Court, and that the said clerk then and there refused the said J. H. Woodward the privilege to so inspect or examine the books aforesaid. Your applicants would, therefore, respectfully ask the court to order that the judgments and decrees of said court, including the fee books and other books containing the public records and orders of said court, be open to the inspection of the said J. H. Woodward, agent of the said Enquirer Company and of said John R. McLean, under such regulations as to the court may seem proper. With this application there is filed the affidavit of one James H. Woodward, in which he says that he is employed by the Cincinnati Enquirer Company, a corporation doing business under the laws of the State of Ohio, and that acting under the orders of John R. McLean, the manager of said corporation,

he made personal application to Thomas Ambrose, clerk of the United States Circuit and District Courts, for permission to examinethe public record, fee books and decrees of said court and permission was refused him by the said Thomas Ambrose, clerk as aforesaid, and said application was renewed on this day and date by him, as a citizen having the right to inspect said books, decrees and minutes, and was again refused.

To this application there is filed by the clerk a demurrer on the ground that the petition does not contain facts sufficient to entitle the applicants to the order they pray for.

This proceeding, in one sense at least, is adversary in its character, and yet it is based upon the alleged refusal by an officer of this court of permission to exercise an alleged right of the petitioner. The right which they allege was refused was that of having one J. H. Woodward to inspect, during office hours, books containing the docket and minute entries, judgments and decrees of the District Court and the United States Circuit Court. This right is based solely upon the ground that John R. McLean is a citizen of the United States and that the Enquirer Company is located in the United States. It is not claimed for either that they have any interest in the docket or minute entries, judgments and decrees recorded in said books. If the prayer of the petitioners prayed simply for the right which they claimed an officer of this court had deprived them of, there would be no difficulty in determining the case. But such is not the fact. They pray for an order that the judgments and decrees of said court, including the fee books and other books containing the public records and orders of said courts, be open for the inspection of one J. II. Woodward. It will be seen at a glance that their prayer is greatly beyond what they allege they were not permitted to examine. That was the books containing the docket or minute entries of the judgments and decrees, but this is not only that the judgments and decrees may be examined, but that all other books containing the public records and orders of the court shall be opened to their inspection. So much for the allegations of the petition itself.

But let us see how the allegation of the right which they allege they were deprived of is supported by the affidavit which has been filed. The petition says that the application was for leave to inspect the books containing the docket and minute entries, judgments and deerees. The affidavit of the man Woodward is that he applied for permission to examine the public records, fee books, and decrees, showing clearly and conclusively that the petition is not supported by the affidavit. Such is this application, as shown from the papers filed. But it is claimed that notwithstanding the variance between the allegations of the petition and the prayer, and the variance between the proof and allegations, petitioners are entitled in law to the order prayed for; that they are so entitled by the statutes of the United States, or if not by them, they are by the common law entitled to it; that all the books and papers of a court of record are subject to the examination and inspection of

any citizen, whether he have any personal interest in them or not; that it is his high and indefeasible right, at any time he pleases during office hours, to make such inspection. If this is true, it is very clear that the petitioners are entitled to the order prayed for. The doctrine is a new and strange one, and certainly finds no support in any adjudication which I have been able to find, and I am very certain none can be produced sustaining any such proposition. But the very formation, purposes and duties of a court forbid such an idea. The court is composed of judge, ministerial and executive officers, together with the attorneys that are members of it. To this body so organized are committed for determination the highest interests of the citizen in his property, his reputation and his person. And a careful record of every step which may be taken in relation to either must be carefully made; every paper connected with any proceeding affecting any one in either of these must be carefully filed and preserved. The title to the entire property of the whole country passes through the courts of this country almost in every half century. They are the repositories of the rights of persons and of property, and in many cases the only evidence of either, and the law imposes upon the court the duty of their secure and careful protection and preservation; a protection and preservation which would be greatly jeopardized if every citizen of the United States at his pleasure and will should be permitted to examine and inspect them in his own way. Not only is such an idea in opposition to the formation, purposes and duties of the court, but it is clearly in opposition to the views of the highest judicial and legislative branches of this government. At a very early day, the Supreme Court of the United States adopted a rule, known as the fourth rule, which provides that "all motions, rules, orders, and other proceedings made and directed at chambers, or on rule days at the clerk's office, whether special or of course, shall be entered by the clerk in an order book, to be kept at the clerk's office, on the day when they are made and directed, which book shall be open at all office hours to the free inspection of the parties in any suit of equity and their solicitors." If the Supreme Court believed that all the books and records belonging to the court were open to the inspection of every citizen of the United States, why did they enact such a rule? Or why did they limit the right of inspection to parties and their solicitors? This rule itself is the most convincing proof that no such right as claimed by the petitioners was supposed by the judges of the Supreme Court to have existed.

But it is claimed by the learned counsel for the petitioners that there is a difference between suits in equity and at law; that there could hardly be a case in equity in which the government could have any interest. It is not perceived by the court upon what reason there can exist any difference in the care and custody of the records and papers in equity causes and actions at law, but learned counsel are mistaken in regard to the interest of the government in equity causes. The records of

this court show numerous causes in equity in which the government of the United States is plaintiff. But it is said, if that is so, that the citizen is a party in interest, and would have a right to look into the records. In some general political sense it may be true that the citizen is a party in interest in every suit prosecuted in the name of the United States; but in a legal sense he is not such a party in interest as is contemplated by this rule.

That Congress entertained the same view is abundantly shown by its acts. In 1848 it enacted a law providing that "all books in the office of the clerks of the Circuit and District Courts containing the docket or minute of the judgments or decrees thereof, shall during office hours be open to the inspection of any person desiring to examine the same without any fees or charge therefor." If Congress believed the right already existed, why did they think it necessary to create such right by special legislation? Or if they believed it ought to exist, why did they limit the right to particular books. such only as contained the docket or minutes of the judgments or decrees? And again, by the act of February, 1875, Congress provided: "That the accounts and vouchers of clerks, marshals, and district attorneys shall be made in duplicate to be marked 'original' and 'duplicate,' and it shall be the duty of the clerk to forward the original accounts and vouchers of the officers above specified, when approved, to the proper accounting officers of the treasury, and to retain in his office the duplicate which shall be open for public inspection at all times." If the public had the right already to inspect such papers, why did Congress deem it necessary to create such a right by the passage of this act?

It is, therefore, very clear to my mind that the unlimited right of a citizen of the United States to inspect and examine all the records and papers belonging to the court does not exist. The right to examine certain records and papers does exist. It exists as to the books containing the docket or minute entries of the judgments and decrees of the court, and these the petitioners allege that they have been refused by an officer of this court. The prayer of the petition is not in accordance with this averment, and the affidavit is different from both. This petition, however, must be governed by the rules of pleading in other cases, so far as the demurrer is concerned. If the party is entitled to any part of the relief he prays for a general demurrer must be overruled.

This application for the interference of the court is based upon the allegation that the petitioners have been deprived of a right given them by the law by an officer of the court. This is denied on behalf of the officer by two members of the bar, who are officers also of this court, and who appear in this proceeding on behalf of the clerk. This is a charge which the court is interested in having examined, and the truth or falsity thereof established. The demurrer will therefore be overruled, but no order will be made until a further hearing of the matter is had before the court, when we

1. DIVORCE "ABANDONMENT' "GROSS NEGLECT OF DUTY."-In an action by the wife for a divorce on the ground of gross neglect of duty, the testimony showed that on April 30, 1878, at his suggestion she left home for a visit at her sister's in Massachusetts; that he then purchased her a ticket and gave her sixty dollars in money, promising to send more as she needed it. She wrote for money in August, and he replied promising again to send money, but sending none. This was repeated several times, and from the time of her departure, he ceased all contributions towards her support. In fact, when he suggested the visit he intended a separation. She remained with her sister until November, when she returned, but he declined to receive her into his house, or resume marital relations with her. During her entire absence her health was poor, and in September and October she was confined to her bed and under the care of a physician. Of this he had information. He had means and was able to support her, while she had no property except a piano. There was no testimony tending to show that his conduct towards or his failure to support her was accompanied by any insult, indignity or any circumstances of aggravation or cruelty other than as above stated. Nor was there any testimony as to her present health or ability to support herself by her own labor. The action was commenced March 1, 1879. The district court refused to grant her a divorce; Held, no error; Held, further, that though the testimony shows an abandonment by him, yet the statute names "abandonment for one year'' as a ground for divorce, and that a mere abandonment for less time without any circumstances of aggravation or cruelty, although it implies a total neglect of all marital duty, can not be considered as equivalent to "gross neglect of duty."

2. A PARTY WHO COMMENCES SUIT before his cause of action has accrued, can not after it accrues as matter of right file a supplemental petition showing that fact, and where the refusal of the court to grant leave to file such petition works no other hardship than delay and costs, ordinarily such refusal will not be ground for reversal.

Error from Douglass County.

BREWER, J., delivered the opinion of the court: This was an action for divorce, and the first question is, whether the testimony, which is not contradictory, makes out “gross neglect of duty,” within the meaning of those terms as used in the divorce statute. The case is thus: On April 30, 1878, plaintiff, at the suggestion of defendant, left her home in Lawrence to visit a sister in eastern Massachusetts. The defendant purchased

her a ticket and gave her sixty dollars, promising to send her more from time to time. She wrote for money the first time in August, and he replied again promising money, but sending none. This was repeated several times. And he has since in no manner contributed to her support. In fact, when he suggested the visit he intended a separation, and that she should never return. She remained with her sister until the last of November, when she returned to Lawrence. During her entire absence her health was poor, and in September and October she was confined to her bed, and under the charge of a physician. On her return to Lawrence, being advised that her husband did not wish her to come to his home, she went to a neighbor's, where she continued to live until the commencement of this action. Upon an interview with her husband he declined to permit her to return to his house, and has continued to so decline. He has means and is able to support her, while she has no property other than a piano. The testimony is silent as to her present health, or her ability to support herself by her own labor. The action was commenced March 1, 1879. Upon these facts did the court err in finding that there had been no gross neglect of duty within the scope of the divorce act. We think not. The expression "gross neglect of duty” is indefinite, and it would be difficult to lay down any general rule by which every case could be determined to be within or without its limits. Each case will have to be examined by itself. And yet an examination of the whole body of the divorce act will suggest certain things as to the legislative intent in this expression. And first it is not mere neglect of marital duty; the adjective gross, whatever may be said of it as mere term of vituperation in other relations, here has legal force as descriptive of the conduct of the party neglecting duty. If it were not so, and any mere neglect of duty were ground for a divorce, the aid of the courts might as well be abandoned, and voluntary separation permitted. There must not only be a default, but the default must be attended with circumstances of indignity or aggravation.

a

Again, the term "gross" can not be equivalent to the word "total." It is not the total, the entire neglect of all marital duty, which is intended by this expression. That is covered by another term, abandonment. But abandonment, which is a neglect or ommission of all marital duty, must continue for a year. That being named as one of the grounds of divorce, and the duration of such abandonment prescribed, nothing less than the time prescribed will suffice. An abandonment for one month, or ten, althought it involves a total neglect of all marital duty, is not gross neglect of duty within the stature. Something more than mere neglect, although it is a neglect of all duty, is requisite. If neglect alone is shown, it must be a total neglect, and continue for a year.

Authorities are few, yet we find these which throw some light upon the question. The statute of Massachusetts authorized a divorce, "when the husband, being of sufficient ability, grossly or wantonly and cruelly refuses or neglects to pro