[129] Hale, History of the Pleas of the Crown, i. 428.
[130] Lex Wisigothorum, vi. 5. 6: “Si dum quis calce, vel pugno, aut quacumque percussione injuriam conatur inferre, homicidii extiterit occasio, pro homicidio puniatur.”
[131] Code Pénal, art. 309.
[132] Strafgesetzbuch, art. 226.
[133] Ottoman Penal Code, art. 177. Cf. ibid. art. 174.
[134] Sachau, op. cit. p. 761 sq.
I presume that nobody after due deliberation would maintain that the moral guilt of the offender is enhanced by the death of him whom he involuntarily happened to kill. Sir James Stephen, nevertheless, makes an attempt to defend, from a moral point of view, the severe English law on the subject, which he thinks “is much to be preferred to the law of France.” He asks, “Is there anything to choose morally between the man who violently stabs another in the chest with the definite intention of killing him, and a man who stabs another in the chest with no definite intention at all as to the victim’s life or death, but with a feeling of indifference whether he lives or dies?”[135] Perhaps not. But I venture to maintain that there is a considerable moral difference between the man who shoots at another with the definite intention of killing him, and the man who, firing at another’s chickens, with the intention of stealing them, accidentally kills the owner whom he does not see. It will perhaps be argued that the law has a utilitarian purpose, its object being to make people more careful. But if this were the case one would expect that the law should punish with equal severity acts which involve the same degree of danger, and which result in similar injuries. To fire at a sparrow may be as dangerous to people’s lives as to fire at another person’s chicken, and, in the latter case, the danger is hardly increased by the intention to steal the chicken. I take the truth to be this. The degree of punishment corresponds to the degree of indignation aroused by the deed. Public imagination is shocked by the actual event. The agent, being guilty either of criminal intention, or of gross disregard of other people’s interests, or of criminal heedlessness, is a proper object of punishment. Owing to that want of discrimination which characterises the popular mind, his guilt is exaggerated on account of the grave consequences of his act; and the result is that he is punished not only for the fault of his will, but for his bad luck as well. Sir James Stephen seems to admit this, when saying that the shock which the offence gives to the public feeling requires that the offender should himself suffer “a full equivalent for what he has inflicted,” from which “he ought to be excused only on grounds capable of being understood by the commonest and most vulgar minds.”[136] Though thoroughly dissenting from the opinion that criminal law should try to gratify the feelings of “the commonest and most vulgar minds,” I think that, as a matter of fact, it is not much above their standard of justice, being in the main an expression of public sentiments.
[135] Stephen, op. cit. iii. 91 sq.
[136] Ibid. iii. 91.
In the cases which we have hitherto considered the external event which a person brings about involuntarily, either makes him liable to punishment though he really is free from guilt, or increases his punishment beyond the limits of his guilt. But the influence of chance also shows itself in the opposite way. A person who is guilty of carelessness generally escapes all punishment if no injurious result follows, and an unsuccessful attempt to commit a criminal act, if punished at all, is, as a rule, punished much less severely than the accomplished act.