it; and in putting the spile into the hole a jet of the rum sprayed the match he held, set fire to the rum, seriously burned him about the neck and arms, finally exploded, and thus the whole ship was set on fire and completely destroyed. The jury found him guilty; and the question is whether the court erred in instructing the jury that although the prisoner had no actual intention of burning the vessel, still, if they found he was engaged in stealing the rum, and that the fire took place in the manner above stated, they ought to find him guilty. BARRY, J. A very broad proposition has been contended for by the crown, namely, that if, while a person is engaged in committing a felony, or, having committed it, is endeavoring to conceal his act, or prevent or spoil waste consequent on that act, he accidentally does some collateral act, which if done wilfully would be another felony, either at common law or by statute, he is guilty of the latter felony. I am by no means anxious to throw any doubt upon, or limit in any way, the legal responsibility of those who engage in the commission of felony, or acts mala in se; but I am not prepared without more consideration to give my assent to so wide a proposition. No express authority, either by way of decision or dictum, from judge or text writer, has been cited in support of it. The authorities mainly relied upon are those which lay down that if homicide or the burning of a house be the direct, though unintended, result of an act felonious or malum in se, the perpetrator will be guilty of murder or manslaughter or arson, as the case may be. As regards the case of homicide, they may be referred to principles applicable to that class of offenses. The authorities as to arsons are more in point, but they all put the case of an act felonious or malum in se, wilfully done and directly causing the ultimate injury. Το constitute the crime of arson at common law, the setting fire to the house must be unlawful and malicious, yet it is not disputed that a person firing a shot with a felonious intent, and thereby unintentionally burning a house, is guilty of feloniously burning it; and certainly it seems difficult to see why the words "unlawful and malicious," when used to describe the essential attributes of the burning of a house as an offense at common law, are to receive a different interpretation for the same words when used in the statute, the object of which is simply to place the burning of a house and the burning of a ship in the same legal category. * I am of opinion that, according to R. v. Pembliton [§ 44], that direction was erroneous, and that the conviction should be quashed. Fitzgerald, J., concurred and wrote a separate opinion. PALLES, C. B. I am of opinion that * that inference [malice] was one of fact for the jury, and not a conclusion of law at which we can arrive upon the case before us. There is one fact from which, if found, that inference would, in my opinion, have arisen as matter of law, as that the setting fire to the ship was the probable result of the prisoner's act in having a lighted match in the place in question; and if that had been found I should have concurred in the conclusion at which Mr. Justice Keogh has arrived. In my judgment the law imputes to a person who wilfully commits a criminal act an intention to do everything which is the probable consequence of the act constituting the corpus delicti which actually ensues. In my opinion this inference arises irrespective of the particular consequence which ensued being or not being foreseen by the criminal, and whether his conduct is reckless or the reverse. [Fitzgerald, Deasy, and Dowse, BB., and O'Brien and Lawson, JJ., gave concurring opinions. Keogh, J., wrote an opinion favoring affirming the judgment.] R. v. Faulkner, 13 Cox C. C. 550, Ir. R. 11 C L. 8, B. 213, C. 106, F. 251, Ke. 152. See other cases of result not intended, but claimed to be natural result of intended act, §§ 14, 81, 82. § 40. "Criminal Neglect of Duty" and "Natural Consequence." (Eng. Cent. Crim. Ct., 1847.) A Woman was Knocked Down as she was passing a shop, by colliding with a boy employed in the shop, who staggered or reeled into the road just then, by reason of defendant taking hold of the boy in the shop in sport, and spinning and shoving him around. The court held that the death of the woman from such injuries was mere accident, and there was no proof for the jury to convict defendant of manslaughter; because he was doing no unlawful act. The boy consented, so that there was no assault on him. R. v. Bruce, 2 Cox C. C. 262, B. 202, Ke. 136. (Eng. C. C. R., 1880.) Homicide. Rifle Practice by three with a gun deadly at a mile, within which distance the bullet passed over three roads and several gardens, resulted in killing a boy at 393 yards in a tree in his father's garden; but which of the three fired the fatal shot was not shown. It was held that all were liable for the acts of each, being engaged in a common enterprise; and that the doing of an act so dangerous to life, without taking proper precautions was criminal negligence, which warranted the conviction of all of manslaughter. Conviction affirmed. R. v. Salmon, 14 Cox C. C. 494, 50 L. J. m. c. 25, 6 Q. B. D. 79, 43 L. T. 573, 29 W. R. 246, 45 J. P. 270, B. 189. § 41. "States of Mind Must be Found to Convict." (Mass. Sup. Judicial Ct., 1861.) Allegation and Proof of Intent. BIGELOW, C. J. The motion in arrest of judgment in the present case is founded on the omission to aver that the defendant, in administering poison to the deceased, did it with an intent to kill. and murder. The law infers the intent from proof that the acts were committed, and that death ensued. The averment, therefore, of the criminal act comprehends the evil or wicked intention with which it was committed. The true distinction seems to be this: When by the common law or by the provision of a statute a particular intention is essential to an offense, or a criminal act is attempted but not accomplished, and the evil intent only can be punished, it is necessary to allege the intent with distinctness and precision, and to support the allegation by proof. On the other hand, if the offense does not rest merely in tendency, or in an attempt to do a certain act with a wicked purpose, but consists in doing an unlawful or criminal act, the evil intention will be presumed and need not be alleged, or, if alleged, it is a mere formal averment, which need not be proved. In such case the intent is nothing more than the result whieh the law draws from the act, and requires no proof beyond that which the act itself supplies. 1 Stark. Crim. Pl. 165; 1 Chit. Crim. Law 233; R. v. Philipps, 6 East 474; 1 Hale P. C. 455; C. v. Merrill, 14 Gray 415. overruled. C. v. Hersey, 2 Allen 173, B. 183. * * * * Motion (Ark. Sup. Ct., 1887.) Burglary-Intent Presumed from Acts. Appeal from conviction of burglary, by entering a barber shop at night and carrying off $5 or $6 in cash and a few cigars, in all less than $10, which would be petit larceny and a misdemeanor under the statute. "As the crime of burglary is complete only when the breaking is done or the entry made with the intent to commit a felony, the offense is not committed by one who breaks into and enters a house with intent to commit petit larceny only. As every larceny was a felony at common law, it was enough then to show an intent to commit larceny; but when petit larceny is reduced to a misdemeanor, the breaking or entry with intent to commit that crime will not constitute burglary. The precise question was ruled in P. v. Murray, 8 Cal. 520. It is argued that the prisoner could not have intended to steal more than he could find, and that, as all the money in the safe did not amount to $10, he could not have intended to commit a felony. But the jury have not specially found that he intended to steal money alone. He entered, according to their verdict, with the intent to steal generally; he was interrupted in the act when there was more than $10 worth of personal property, such as cigars, razors, etc., in his reach. It was not necessary in order to complete the crime of burglary that his anterior intent should have been consummated. Dodd. S., 33 Ark. 517. Who can say that it was his intent to confine his operations to the money in the safe? In point of fact, he did not. He took cigars as well as money. We may gather the intent from the act done. A man is presumed to intend what he does, and the jury could have inferred that, but for the interruption, the prisoner would have appropriated other property as well. But if there had been no other property except that taken, the case would not be altered. The prisoner intended to take all the money there was in the safe. He testified to that fact upon the stand. He did not know that it contained less than $10. His intent was to take more than that sum, if he could find it; hence the intent to commit a felony. Where an assault upon a person with intent to steal from his pocket is a criminal offense, it is no answer to the indictment, as has been frequently held, that the pocket was empty. 1 Bish. Cr. Law, § 743 et seq. The same rule was applied in a recent Ohio case, where one was indicted for breaking into a building with intent to steal money, which he supposed was in a safe; though in fact the safe contained no money, a conviction of burglary was sustained. S. v. Beal, 37 Ohio St. 108." Per COCKRELL, C. J. Affirmed. Harvick v. S., 49 Ark. 514, 6 S. W. 19, F. 60, Kn. 45. § 42. "That Breach of Legal Duty Shall be Criminal Regardless of any Intent." (N. Car. Sup. Ct., 1851.) Supposed Authority of Slave. On trial for selling liquor to a slave contrary to law, defendant moved the court to instruct the jury that if defendant believed and had reason to believe the liquor was being bought for the master, he was not guilty; but the court instructed them that he acted at his peril. He appealed. RUFFIN, C. J. The court is of opinion that there was no error in the instruction given. The sale of spirituous liquor to a slave is apparently illegal, and it is incumbent upon one who does the act to justify it by showing that it was done under such circumstances as render it lawful. He must show, not merely that he thought that such circumstances existed, but that they actually existed. * * * The act, being against the policy and the letter of the law, can only be made innocent by showing facts which in law justify it, and not by showing merely the probability or the party's mistaken belief of the existence of those facts. Those circumstances might well affect the degree of punishment, and seem to have had their effect in reducing the fine here to almost a nominal one. But could not prevent the act from being a violation of the law, for which the party was liable to conviction. Affirmed. S. v. Presnell, 34 N. Car. (12 Ired.) 103, B. 177. See several cases to like effect, post § 53. (Mich. Sup. Ct., 1884.) Failing to Keep Saloon Closed. Defendant was prosecuted for not keeping the bar in his hotel closed on Sunday. The evidence was that the hotel clerk and a servant were scrubbing out the barroom Sunday morning, when a man came in and said he wanted some whiskey, that the clerk told him he should get it Saturday, but after some talk told him if he must have it to * get it quick and get out; that he got the whiskey, handed the pay to the servant, and went; and that defendant was not present at the time, but was shortly afterwards, and probably was then about the house somewhere, perhaps not yet up; but there was no proof that he assented to opening the bar that day, nor that he did not. On error, the only question was whether there was any evidence to support a verdict of guilty. COOLEY, J. The statute under which the conviction was had provides that "all saloons, restaurants, bars, in taverns or elsewhere, and all other places where any of the liquors," etc. "may be sold, or kept for sale, either at wholesale or retail, shall be closed on the first day of the week, commonly called Sunday," etc. How. St. § 2274; Public Acts, 1881, p. 350. It will be observed that the requirement that the saloons and other places mentioned shall be closed is positive. The next section of the statute provides that any person who shall violate this, among other provisions, shall be deemed guilty of a misdemeanor, and shall be punished as therein prescribed. In terms, then, the penalties of the statute are denounced against the person whose saloon or other place for the sale of intoxicating drinks is not kept closed, and no other fact is necessary to complete the offense. It is contended, nevertheless, that to constitute an offense under the section referred to, there must be some evidence tending to show an intent on the part of the respondent to violate it. I agree that as a rule there can be no crime without a criminal intent; but this is not by any means a universal rule. One may be guilty of the high crime of manslaughter when his only fault is gross negligence; and there are many other cases where mere neglect may be highly criminal. Many statutes which are in the nature of police regulations, as this is, impose criminal penalties irrespective of any intent to violate them; the purpose being to require a degree of diligence for the protection of the public which shall render violation impossible. [Here his honor reviewed numerous decisions under such statute.] If intent were necessary to be found I should be of opinion there was enough in the case to warrant its submission to the jury. The bar was opened on Sunday by respondent's servants and on his business while he was about the premises. The purpose for which it was opened was immaterial; the offense was committed by opening it for cleaning as much as it would have been by opening it for the sale of liquors. P. v. Waldvogel, 49 Mich. 337. But the statute requires the proprietor at his peril to keep the bar closed. The purpose in doing so is that persons shall not be there within. the reach of temptation. This respondent did not keep his bar closed and he has therefore disobeyed the law. And he has not only disobeyed the law, but the evil which the law intends to guard against has resulted; that is to say, there has been, either with or without his assent-it is immaterial which-a sale of intoxicating liquors to a person who took advantage of the bar being open to |