As the purpose is to compel men
to abstain from dangerous conduct, and not merely to restrain
them from evil inclinations, the law requires them at their peril
to know the teachings of common experience, just as it requires
them to know the law. Subject to these explanations, it may be
said that the test of murder is the degree of danger to life
attending the act under the known circumstances of the case. /1/
It needs no further explanation to show that, when the particular
defendant does for any reason foresee what an ordinary man of
reasonable prudence would not have foreseen, the ground of
exemption no longer applies. A harmful act is only excused on the
ground that the party neither did foresee, nor could with proper
care have foreseen harm.
It would seem, at first sight, that the above analysis ought to
exhaust the whole subject of murder. But it does not without some
further explanation. If a man forcibly resists an officer
lawfully making an arrest, and kills him, knowing him to be an
officer, it may be murder, although no act is done which, but for
his official function, would be criminal at all. So, if a man
does an act with intent to commit a felony, and thereby
accidentally kills another; for instance, if he fires at
chickens, intending to steal them, and accidentally kills the
owner, whom he does not see.
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