It is found in the conception of the average man, the
man of ordinary intelligence and reasonable prudence. Liability
is said to arise out of such conduct as would be blameworthy in
him. But he is an ideal being, represented by the jury when they
are appealed to, and his conduct is an external or objective
standard when applied to any given individual. That individual
may be morally without stain, because he has less than ordinary
intelligence or prudence. But he is required to have those
qualities at his peril. If he has them, he will not, as a general
rule, incur liability without blameworthiness.
The next step is to take up some crimes in detail, and to
discover what analysis will teach with regard to them.
I will begin with murder. Murder is defined by Sir James Stephen,
in his Digest of Criminal Law, /1/ as unlawful homicide with
malice aforethought. In his earlier work, /2/ he explained that
malice meant wickedness, and that the law had determined what
states of mind were wicked in the necessary degree. Without the
same preliminary he continues in his Digest as follows:--
[52] "Malice aforethought means any one or more of the following
states of mind ..... "(a.) An intention to cause the death of, or
grievous bodily harm to, any person, whether such person is the
person actually killed or not; "(b.
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