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bench that the doctrine of these two writers was not the same. But if the plain meaning of the words is followed, it will be seen that the passage from Hale is no authority for or against the rule. It is nothing more than a definition of murder, given preliminary to the author's discussion of the doctrine of implied malice. Hawkins, however, another writer on Crown law, of about the same date, cites Foster, and the cases in Kelyng and Lord Raymond heretofore given, as authority for the proposition that “wherever it appears that a man killed another it shall be intended primâ facie that he did it maliciously, unless he can make out the contrary by showing that he did it on a sudden provocation."i East, who wrote about the beginning of this century, and who refers to Foster, Hale, and Hawkins, thus states the rule as he deduced it: “ The implication of malice arises in every instance of homicide amounting in point of law to murder; and in every charge of murder, the fact of killing being first proved, all the circumstances of accident, necessity, or infirmity are to be satisfactorily proved by the prisoner, unless they arise out of the evidence produced against him ;"2 while Lord Chief Baron Gilbert, whose work on evidence was published about the same time, and whom Bentham calls the “father of evidence,” 3 prefaced the rule with a reason. “Killing," said he,“ is so bad a thing, so ill-natured and bloody an action, that it is presumed to be malicious.” 4 Blackstone, citing Foster only, says it may be taken as a general rule that all homicide is malicious, and of course amounts to murder, unless justification, excuse, or alleviation appear; and it is incumbent upon the prisoner to make out such defence to the satisfaction of the court and jury. “For all homicide is presumed to be malicious, until the contrary appeareth upon evidence."5 Phillips states the rule without comment, except that it is an observation of Sir Michael Foster.6 And McNally reiterates the phraseology of Foster.7
1 1 Hawk. P. C. c. 31, § 32.
2 1 East, P. C. c. 5. 3 Benth. Rat. Jud. Ev. b. 5, c. 15, $ 3.
4 Gilb. Ev. 234. 5 4 BI. Com. c. 14
61 Phill. Ev. c. 10, § 2. 7 2 McNally, Evon Pl. Cr. c. 13. The following books substantially repeat the rule as stated by Foster: 1 Gabbett, Cr. Law, c. 30, p. 455; Matthews, Dig. Cr. Law, in verb. Murder; 3 Chitty, Cr. Law, 730, 4th Am. ed. ; 1 Archbold, Cr. Pr. & Pl. $ 6, n. (1); 2 Deacon, Dig. Cr. Law, 899, in verb. Murder; 1 Russell on Cr. 482; Bacon, Abr. in verb. Murder, C, 2; Petersdorff, Com. Law, in verb. Murder; Roscoe, Dig. Cr. Ev. 21, 695, 7th ed. ; 1 Whart. Am. Cr. Law, $$ 708-710.
Judge Greenleaf gives the rule as an instance of a presumption of law. After referring to the well-known presumption of innocence, he says, “ On the other hand, as men seldom do unlawful acts with innocent intentions, the law presumes every act in itself unlawful to have been criminally intended, until the contrary appear. Thus on a charge of murder, malice is presumed from the fact of killing, unaccompanied with circumstances of extenuation; and the burden of disproving the malice is thrown upon the accused." i The principle is thus stated by Taylor, totidem verbis. Chitty gives a similar reason for the rule: "When an act which in its nature is criminal has once been proved, the law frequently infers malice, and requires exculpatory proof from the party. Thus in case of homicide, after proof that the prisoner killed the deceased, the law will presume malice until the prisoner justify or extenuate the act." 8 In Powell on Evidence the rule is given to illustrate the principle that “the law presumes that every man intends the probable consequences of his act.”4 The presumption is somewhat materially qualified in Best on Evidence, where it is said that “ a party who is proved to have killed another is presumed in the first instance to have done it maliciously, or at least unjustifiably.” 5 Stephen states as his seventh rule of evidence in cases of murder, “ Where one person is shown to have killed another, malice in the higher degree is presumed till the prisoner succeeds in extenuating it, or disproving its existence altogether.”6 This rule is given as an instance of the consequence of making malice in general terms a necessary element of crime, so that such acts as the destruction of life are declared to be primâ facie wicked actions, though circumstances may exist by which their wickedness is either removed or diminished. To this great mass of testimony as to the purport of the common law upon the point in question, may be added that of a modern author of eminence, Mr. Bishop. But although admitting what the law undoubtedly is, he goes on to show further, as has been said of Sir Michael Foster, 8 " what in reason and humanity it ought to be.” His
1 1 Greenl. Ev. par. 1, c. 4, § 34. ? 1 Taylor, Ev. par. 1, c. 5, § 103. 8 Chitty, Ev. 757, 4th Eng. ed. 4 Powell, Ev. 61, 3d ed. Vide Peake, Ev. 5, 5th ed. ; Burrill, Circum. Ev. 48. • Best, Ev. § 433, 5th ed. (1870).
6 Steph. Cr. Law, 117. i Id. 83.
8 Id. 44.
conclusion is that the rule is without legitimate foundation, either on historical grounds or on those of the general principles and analogies of the criminal law. “It is plainly a violation of the ordinary principles of evidence, of common sense, and of common justice, to raise, upon the mere fact of causing the death, the presumption that it was such a killing as constitutes murder.” 1
The rule, however, does not seem to be a technical one peculiar to the common-law procedure and jurisprudence of England and of this country, but is to be found in the law of other countries and in other systems of jurisprudence.
It is fully recognized in the criminal law of Scotland, and the two forms in which it has been embodied in England and this country are found also in the works of the Scotch writers. Baron Hume says: “ Malice is implied primâ facie in the act itself of intentional killing, which is the highest possible injury; and it lies therefore with the pannel to overcome this presumption by evidence on his part of some of those circumstances of necessity or excusable infirmity which may serve him for his defence.” ? And he adds that this is not any strained or peculiar rule taken up out of aversion to blood and the better to repress so bigh a crime, but just the plain ordinary rule which applies equally in any other case of bodily harm. Alison, however, quotes Baron Hume as authority for the broader rule that every homicide is presumed to be malicious, and he says nothing of the necessity of preliminary proof of intention. And a later writer has so interpreted the existing law. And it is said that judgment has accordingly been given in a great variety of cases overruling the plea that malice must be proved by the prosecutor affirmatively, Proving the overt act is enough to throw the onus probandi of exculpation upon the pannel.
A similar rule prevailed also in the civil law, having there had its origin in the lex Cornelia de Sicariis. Accordingly when any one was shown to have killed a man, he was presumed to have killed him dolose, that is, without excuse and in a manner to render the slayer liable to punishment; as it would be expressed in our law, maliciously, with malice aforethought. Thus Bartolus says that he who has confessed to
1 2 Bishop, Cr. Law, 88 616-620.
2 1 Hume, Cr. Law of Scot. c. 6.
McDonald, Cr. Law of Scot. 583. 6 Inst. Just. 4, 18, 5; D. 48, 8, 1.
having killed a man, but says he did it in self-defence, ought to prove that excuse, since otherwise he is presumed to have killed the man with a criminal intent. And Menochius, in his work de Præsumptionibus, declares the rule to be a legitimate presumption of law, and only one instance of the general principle that where one man has done another some grievous wrong cognizable by the law, he must be presumed to have done it with a criminal intention. And by another commentator it is said that such injurious acts as homicide, being wrong in themselves, and prohibited both by divine and human law, are presumed to have been committed with a criminal knowledge and intent. Accordingly, if the presumption was not overthrown by something in the nature of exculpatory proof on the part of the accused, the lawful punishment for criminal homicide could be inflicted upon him.4 Furthermore, the question is discussed as to the quantum of proof required to destroy the force of the legal presumption, a question which, as we have seen, arose as a corollary to the main question in several of the cases under our own law, and which was decided in at least three different ways.5 . The answer is given in Alciatus, as resulting practically from a well-known opinion of Bartolus. The instance given by Bartolus was this: If Titius is accused of having slain Sempronius, in the month of May, and the killing being admitted, Titius in defence prove that in the month of May Sempronius was outlawed, and the law permitted any one to kill an outlaw as caput lupinum, in that case Titius could not be condemned. This opinion of Bartolus the commentators thought inconsistent with the other opinion of that writer given above. But Alexander recognized that this was merely saying that when the accused produced evidence sufficient to raise a doubt as to the criminality of the homicide, the presumption against him was destroyed. If he produced no evidence at all, the presumption would avail against him.2 On the other hand, another civil-law writer says the accused must establish his justification by sufficient evidence, for in case of doubt the killing is presumed to have been malicious.3
1 “Is qui confessus est occidisse hominem, sed ad sui defensionem, probare debet excusationem illam, cum alioque præsumatur dolose occidisse.” Bart. D. 2, in leg. Aurel; Menoch. de Præs. lib. v. præs. 3, no. 46. We have not scrupled to render the word dolus by the phrase "criminal intent" in this connection, though aware that the word by itself must often be held to mean merely intention, or voluntary intention, and that malus must be added to it in order to make a phrase equivalent to our word "malice." A reference to the above example of Bartolus as to the excuse of selfdefence will show the justification for such a rendering of the word. When a man kills in self-defence, he still has the intention to kill. The word must therefore here mean the specific state of mind necessary to render the accompanying act criminal in law. Leeuwen, Cen. Foren. par. 1, lib. 5, c. xi. & 1; Rossi, Traité de Droit Pénal, liv. ü. c. 24.
? "Prima itaque est conjectura doli commissi, quando quis grave aliquod perpetravit delictum, sicuti homicidium. Hoc sane casu dolum lex præsumit, nempe quod dolo occiderit. . . . Sic habetur eum qui injuria aliquem affecit, animo injuriandi affecisse; atque ita dolose egisse præsumitur.” Menoch. de Præs. lib. v. præs. 3, nos. 45–47.
8 “Sunt enim hæc delicta sui natura et quidem lege divina et naturali prohibita ; qui ergo illa admittit scienter, dolose admisisse præsumitur.” Paris. lib. iv. cons. 146, n. 20.
4 "Homicidia et cætera delicta similia, dolo committi a lege præsumitur. Cum ergo quis homicidium perpetravit, si non probat, se sine dolo id commisisse, punitur poenâ ordinariâ legis Corneliæ de sicariis. Ecce ergo, quod homicida præsumptive dolosus pæná ordinariâ punitur.” Menoch. de Præs. lib. i. quæst. 97, no. 8; Voet, ad Pandect. lib. xxii. tit. 3, no. 18.
5 Com. v. York, 9 Metc. 93; Patterson v. The People, 46 Barb. 625; The People v. Schryver, 42 N. Y.1; Stokes v. The People, 51 or 52 N. Y. -.
The general principle upon which the early civilians acknowledged the rule in question is fully recognized by some of the later civilians, 4 while by others its soundness has been somewhat questioned, if not denied. In the penal code of Bavaria, however, the principle has been established by legislation, that “every criminal action shall be legally presumed to have been committed with a criminal intention, unless the contrary appear from the circumstances of the case.” 6.
1 Alciat. de Præs. reg. iii. præs. 1, v. 3.
2 “ Quando reus accusatus probavit aliquam causam, quæ poterat facere ipsum actum licitum ; si verè (inquit Alexander) accusatus nullam probavit causam, qua actus reddi possit licitus, procedit illa traditio” [i.e., the other answer of Bartolus as to the presumption of a criminal intent from the fact of the killing. Menoch. de Præs. lib. v. præs. 3, no. 49; Mascard. Com. de Prob. con, 531.
3. “Non enim eam defensionem proposuisse, satis est, nisi eadem idoneis argumentis probetur. In dubio enim cædes, sicut quævis injuria, præsumitur dolo malo facta.” Malthæus, de Sicariis, c. 3, no. 14. Vide Huberus, Prælect. ad Pandect. par. 4, lib. 22, tit. 3.
4 Rossi, Traité de Droit Pénal, liv. ii. c. 24.
5“ Mais, en y réfléchissant mûrement, nous ne saurions reconnaître dans aucune hypothèse l'existence d'une presomption légale de dol. . . . Le caractère de l'acte incriminé emporte une pure presomption de fait, dont la force varie à l'infini et, à part même la folie, telle ou telle circonstance, tel ou tel état moral de l'accusé peut, en définitive, donner une explication satisfaisante de ce qui, au premier abord, paraissant naturellement criminel.” Bonnier, Traité des Preuves, tom. ii. par. 3, liv. 2, sect. 2, § 1, no. 858. Et vide Mittermaier, Traité des Preuves, c. 17.
6 Code Pénal de Bavière, art. 43.