tute a crime is done with the requisite criminal intent, no subsequent repentance or change of intent can relieve it of its criminality.95 And if a person has an intent to commit a certain crime, and does an act concurrent with the intent sufficient to constitute a lesser crime of the same nature, and repents or desists from his first intention, he is still indictable for the lesser offense.96 § 96. Negligence. In many cases negligence, recklessness, or indifference to duty or consequences is equivalent to and may take the place of a criminal intent, and will render a person criminally responsible for its results to the same extent as though he had actually intended them.97 And a criminal intent, and even malice, party, or withdrew to the knowledge of the other, before the crime was committed (see § 250, infra). 95 Young v. State, 82 Ga. 752, 9 S. E. 1108. Thus, a person who has broken and entered a house with intent to commit a felony is none the less guilty of burglary because he repents and abandons his purpose (see § 480, infra). And a person who has committed larceny (see § 782, infra), or robbery (see § 944, infra), or embezzlement (see § 546, infra), cannot escape responsibility by subsequently abandoning the stolen property, or by returning it to its owner or paying for it. And a person who, with intent to commit a crime, has done enough to render him guilty of an attempt, can be punished for the attempt, though he afterwards abandoned his purpose (see § 155, infra). And the same is true of one who has done enough to render him guilty of an assault with intent to commit a particular crime, as rape or murder (see §§ 409, 412, infra). A person who arranges with a woman to transport her from one state to another for immoral purposes, in violation of the Federal White Slave Act, cannot escape responsibility under that act by abandoning his criminal intention, where he does not no 98 may be inferred from omission to act at all when there is a legal duty to act. But mere negligence, whether in commission or omission, is not enough to render a man guilty of a crime of which a specific intent is an essential element.99 And in states where there are no common law crimes,1 negligence 2 or the bare neglect of a legal duty is not a crime unless the statute so provides. 3 To take the place of intent in any case the negligence must be England. Fost. C. L. 262; Hull's Case, J. Kelyng 40; Knight's Case, 1 Lewin C. C. 168; Mirror of Justices (Sel. Soc.), C. 15; Reg. v. Instan (1893), 1 Q. B. 450. "The law infers guilty intention from reckless conduct, and where the recklessness is of such a character as to justify this inference, it is the same as if the defendant had deliberately intended the act committed.' Pool v. State, 87 Ga. 526, 13 S. E. 556; Tyner v. United States, 2 Okla. Cr. 689, 103 Pac. 1057. A reckless act is regarded as the equivalent of a wilful one. Walsh v. United States, 174 Fed. 615; Lear v. United States, 147 Fed. 349. Thus, negligence in doing a lawful act, by which another is injured, may render a person guilty of criminal assault and battery (see § 402, infra), or manslaughter (see § 672 et seq., infra), and even the malice necessary to constitute murder may be implied from negligence, as from reckless and wanton conduct dangerous to life (see § 630, infra). The principle also applies in many other offenses (see chapters dealing with the specific offenses). To come within the rule the act must be the result of negligence, and not of a mere error of judgment. State v. Irvine, 126 La. 434, 52 So. 567. "Recklessly means heedlessly, carelessly, or indifferent to consequences, without contemplating or intending those consequences. It is not the same as wilfully. Thurman v. State, 2 Okla. Cr. 718, 104 Pac. 67. It negatives any inference of innocent accident. State v. Welford, 29 R. I. 450, 72 Atl. 396. 98 Reg. v. Lowe, 3 Car. & K. (Eng.) 123; Rex v. Friend, Russ. & R. (Eng.) 20. When one is charged with a special duty, the nonperformance of which involves danger to the safety of others, the failure to perform the duty, even through inattention, is gross and culpable, or, in other words, criminal negligence. State v. Irvine, 126 La. 434, 52 So. 567. A person may be guilty of manslaughter if he causes the death of another by negligent omission to do an act which it is his duty to do (see § 676 et seq., infra). And if the omission is wilful, he will be guilty of murder (see § 632, infra). To render one criminally liable, however, because of an omission to act, he must be under a legal duty to act. State v. Irvine, 126 La. 434, 52 So. 567; Reg. v. Smith, 11 Cox C. C. (Eng.) 210. 99 As in larceny (see § 783 et seq., infra), malicious mischief (see § 838 et seq., infra), arson (see § 388, infra), attempts to commit crimes (see § 154, infra), and assaults with intent to commit other crimes, etc. (see § 399 et seq., infra). 1 See § 22, supra. 2 Johnson v. State, 66 Ohio St. 59, 63 N. E. 607, 61 L. R. A. 277, 90 Am. St. Rep. 564. 3 People v. Knapp, 206 N. Y. 373, gross, and such as to indicate a wilful or wanton disregard of the probable results to others.5 And it follows that one cannot be held criminally responsible on the ground of negligence where he used every means in his power for the safety of those whom it is alleged his negligence has affected." § 97. Wilfulness. The common meaning of the term "wilful" is "voluntary" or "intentional," as distinguished from "accidental." And it is sometimes given this meaning when used in penal statutes, and construed as not requiring an evil or corrupt intent. But generally, as used in the criminal law, it is held to mean something more than voluntary or intentional, and to imply an evil intent or purpose, without justifiable excuse. In this sense 99 N. E. 841, Ann. Cas. 1914 B 243, aff'g 147 App. Div. 436, 132 N. Y. Supp. 747. 4 Bynum v. State, 8 Ala. App. 79, 62 So. 983; State v. Campbell, 82 Conn. 671, 74 Atl. 927, 135 Am. St. Rep. 293, 18 Ann. Cas. 236; Luther v. State, 177 Ind. 619, 98 N. E. 640. And see § 97, infra. "Intent to injure may not be implied from lack of ordinary care.' Bleiweiss v. State, 188 Ind. 181, 119 N. E. 375, 122 N. E. 577; Luther v. State, 177 Ind. 619, 98 N. E. 640. And see § 97, infra. Mere negligence will not do, but there must be wicked negligence. Reg. v. Nicholls, 13 Cox. C. C. (Eng.) 75. 5 State v. Campbell, 82 Conn. 671, 74 Atl. 927, 135 Am. St. Rep. 293, 18 Ann. Cas. 236; Carbo v. State, 4 Ga. App. 583, 62 S. E. 140; Peay v. Com., 181 Ky. 396, 205 S. W. 404; Reg. v. Nicholls, 13 Cox C. C. (Eng.) 75. And see § 97, infra. 6 Carbo v. State, 4 Ga. App. 583, 62 S. E. 140. 7 California. In re Ahart, 172 Cal. 762, 159 Pac. 160. Minnesota. State v. Damuth, 135 Minn. 76, 160 N. W. 196; State v. Lehman, 131 Minn. 427, 155 N. W. 399, Ann. Cas. 1917 D 615; State v. Bell, 26 Minn. 388, 5 N. W. 970. Missouri. State v. Prater, 130 Mo. App. 348, 109 S. W. 1047. New Jersey. State v. Clark, 29 N. J. L. 96. North Carolina. State v. Brigman, 94 N. C. 888. Tennessee. State v. Smith, 119 Tenn. 521, 105 S. W. 68. Texas. Caldwell v. State, 55 Tex. Cr. 164, 115 S. W. 597, 131 Am. St. Rep. 809. 8 State v. Clark, 102 Iowa 685, 72 N. W. 296; State v. Teeters, 97 Iowa 458, 66 N. W. 754; Com. v. Walden, 3 Cush. (57 Mass.) 558; Sanders v. State, 31 Tex. Cr. 525, 21 S. W. 258; Sneed v. State, 28 Tex. App. 56, 11 S. W. 834. In California the Code provides that, when applied to the intent with which an act is done or omitted, it implies simply a purpose or willingness to commit the act or make the omission referred to, and does not require any intent to violate the law, or to injure another, or to acquire any advantage. Pen. Code, § 7. People v. O'Brien, 96 Cal. 171, 31 Pac. 45. 9 United States. Potter v. United States, 155 U. S. 438, 39 L. Ed. 214, 15 Sup. Ct. 144; Evans v. United it conveys the idea of legal malice in a greater or less degree.10 When used in a penal statute in reference to a person who shall neglect or fail to discharge a duty or perform an act enjoined, the term implies that the party shall have the ability to discharge the duty or perform the act. Nor is one guilty of a wilful violation of a statute because of a mere inadvertent omission to comply with some of its provisions in a sincere attempt to perform his duty under it as he understands it.12 In this sense it does not mean the same as States, 153 U. S. 584, 38 L. Ed. 830, 14 Sup. Ct. 934, 939; Felton v. United States, 96 U. S. 699, 24 L. Ed. 875; North Carolina v. Vanderford, 35 Fed. 282; United States v. Three Railroad Cars, 1 Abb. 196, Fed. Cas. No. 16,513. Alabama. McManus v. State, 36 Ala. 285; State v. Abram, 10 Ala. 928. Georgia. Hateley v. State, 118 Ga. 79, 44 S. E. 852; King v. State, 103 Ga. 263, 30 S. E. 30; Kendall v. State, 9 Ga. App. 794, 72 S. E. 164. Indiana. City of Indianapolis v. Consumers' Gas Trust Co., 140 Ind. 246, 39 N. E. 943. Iowa. State v. Willing, 129 Iowa 72, 105 N. W. 355. Massachusetts. Com. v. Bradford, 9 Metc. 268; Com. v. Kneeland, 20 Pick. 206. Missouri. State v. Prater, 130 Mo. App. 348, 109 S. W. 1047; State v. Grassle, 74 Mo. App. 313. New Jersey. State v. Clark, 29 N. J. L. 96. New York. People v. Harden, 110 Misc. 72, 179 N. Y. Supp. 732. North Carolina. State v. Clifton, 152 N. C. 800, 67 S. E. 751, 28 L. R. A. (N. S.) 673; State v. Massey, 97 N. C. 465, 2 S. E. 445; State v. Whitener, 93 N. C. 590. Oklahoma. Miller v. State, 9 Okla. Cr. 55, 130 Pac. 813; O'Barr v. United States, 3 Okla. Cr. 319, 105 Pac. 988, 139 Am. St. Rep. 959; Thurman v. State, 2 Okla. Cr. 718, 104 Pac. 67. Texas. Caldwell v. State, 55 Tex. Cr. 164, 115 S. W. 597, 131 Am. St. Rep. 809; Henderson v. State, 53 Tex. Cr. 533, 111 S. W. 736; Smyth v. State, 51 Tex. Cr. 408, 103 S. W. 899; Lane v. State, 16 Tex. App. 172; Thomas v. State, 14 Tex. App. 200. Wisconsin. State v. McAloon, 142 Wis. 72, 124 N. W. 1067; Brown v. State, 137 Wis. 543, 19 N. W. 338; State v. Preston, 34 Wis. 675. It is used to characterize an act done wantonly or one which a man of reasonable knowledge and ability must know to be contrary to his duty. Brown v. State, 137 Wis. 543, 119 N. W. 338; State v. Preston, 34 Wis. 675. 10 King v. State, 103 Ga. 263, 30 S. E. 30; City of Indianapolis v. Consumers' Gas Trust Co., 140 Ind. 246, 39 N. E. 943; State v. Grassle, 74 Mo. App. 313; State v. McAloon, 142 Wis. 72, 124 N. W. 1067; Brown v. State, 137 Wis. 543, 19 N. W. 338; State v. Preston, 34 Wis. 675. And see § 99, infra. 11 City of Indianapolis v. Consumers' Gas Trust Co., 140 Ind. 246, 39 N. E. 943. 12 Brown v. State, 137 Wis. 543, 119 N. W. 338. Where there is no attempt to evade the provisions of the statute, and the usual means to comply with them are adopted. Felton v. United States, 96 U. S. 699, 24 L. Ed. 875. "recklessly." 18 The meaning of the word in statutes defining and punishing particular offenses will be considered in the chapters dealing specifically with those offenses.14 § 98. Wantonness. A wanton act is an act committed in disregard of the rights of others, in a reckless spirit, or under circumstances which evince a lawless, wicked, or mischievous intent without excuse.15 The term "implies that the act was done of a licentious spirit, perversely, recklessly, without regard to propriety or the rights of others, careless of consequences, and yet without settled. 13 Thurman v. State, 2 Okla. Cr. 718, 104 Pac. 67. 14 See chaps. 9-47, infra. 15 Tatum v. State, 66 Ala. 465; State v. Goetz, 83 Conn. 437, 76 Atl. 1000, 30 L. R. A. (N. S.) 458; State v. Prater, 130 Mo. App. 348, 109 S. W. 1047. See also Welch v. Durand, 36 Conn. 182, 4 Am. Rep. 55; People v. Jones, 241 Ill. 482, 89 N. E. 752, 16 Ann. Cas. 332; Cobb v. Bennett, 75 Pa. St. 326, 15 Am. Rep. 752; Clarke v. Hoggins, 103 E. C. L. (Eng.) 543. A manifestly injurious act, done wilfully, in reckless disregard of the rights of others, is done wantonly. Com. v. Byard, 200 Mass. 175, 86 N. E. 285, 20 L. R. A. (N. S.) 814. An "illegal act is wanton when it is needless for any rightful purposewithout adequate legal provocationand manifests a reckless indifference to the interests and rights of others." State v. Brigman, 94 N. C. 888. "The act must have been committed regardless of the rights of another in reckless sport or under such circumstances as evidenced a wicked or mischievous intent without excuse. Caldwell v. State, 55 Tex. Cr. 164, 115 S. W. 597, 131 Am. St. Rep. 809; Henderson v. State, 53 Tex. Cr. 533, 111 S. W. 736; Ross v. State (Tex. Cr.), 108 S. W. 697; Thomas v. State, 14 Tex. App. 200. To be wanton the act must be done without excuse, and under circumstances evidencing a lawless and destructive spirit. Branch v. State, 41 Tex. 622; Wilson v. State, 14 Tex. App. 205; Lott v. State, 9 Tex. App. 206; Jones v. State, 3 Tex. App. 228. Wantonly in a statute making it an offense to wantonly tear down the building of another, means a reckless disregard of the rights of the owner of the building, a heedlessness of the necessary results of the act complained of. Werner v. State, 93 Wis. 266, 67 N. W. 417. Wantonly as used in an indictment for slander means that the slanderous words must have been uttered regardless of the consequences, in a reckless manner, or under such circumstances as evidenced a wicked and mischievous intent and without excuse. Rainwater v. State, 46 Tex. Cr. 496, 81 S. W. 38. A tree warden who cuts down a tree belonging to another, without legal right and without taking any steps whatever to ascertain his legal rights and duties in the premises, acts wantonly. Com. v. Byard, 200 Mass. 175, 86 N. E. 285, 20 L. R. A. (N. S.) 814. It implies turpitude, that the act is done of wilful, wicked purpose. North Carolina v. Vanderford, 35 Fed. 282; State v. Massey, 97 N. C. 465, 2 S. E. 445. |