/3/ In this case the function
of intent when proved appears more clearly than in theft, but it
is precisely similar. It is an index to the probability of
certain future acts which the law seeks to prevent. And here the
law gives evidence that this is the true explanation. For if the
apprehended act did follow, then it is no longer necessary to
allege that the breaking and entering was with that intent. An
indictment for burglary which charges that [75] the defendant
broke into a dwelling-house and stole certain property, is just
as good as one which alleges that he broke in with intent to
steal. /1/
It is believed that enough has now been said to explain the
general theory of criminal liability, as it stands at common law.
The result may be summed up as follows. All acts are indifferent
per se.
In the characteristic type of substantive crime acts are rendered
criminal because they are done finder circumstances in which they
will probably cause some harm which the law seeks to prevent.
The test of criminality in such cases is the degree of danger
shown by experience to attend that act under those circumstances.
In such cases the mens rea, or actual wickedness of the party, is
wholly unnecessary, and all reference to the state of his
consciousness is misleading if it means anything more than that
the circumstances in connection with which the tendency of his
act is judged are the circumstances known to him.
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