(D) The killing must be committed with the specific intent to kill or to put life in manifest jeopardy

not criminal, being ordered or permitted by the law or by lawful authority or otherwise justifiable.

(D) The killing must be committed with the specific intent to kill or to put life in manifest jeopardy

This is the grand criterion which distinguishes wilful homicide from all other species of unlawful killings. The word “maliciously” describes the generic criminal intent, i.e., the consciousness of doing something against the law: these other words connote the specific criminal intent of wilful homicide which must be precisely that of killing or at least exposing the life of another to manifest peril. It is the distinctive attribute of the crime. Without the specific intent there cannot be this crime, nor any attempt of it. It is the intent that distinguishes bodily harms which constitute an attempted wilful homicide from those which do not constitute it and are punished as the complete offence of bodily harm. So if the person injured dies, following the infliction of the bodily harm, but it is established that the intention of the offender was not that of killing or of putting the life of the victim in manifest danger, the crime of wilful homicide does not arise, precisely on account of the absence of that specific intention. We would have the less serious crime known on the continent as homicide “praeter intentionem” (omicidio preterintenzionale) or, in our law, “bodily harm followed by death” (Section 239). It is, likewise, the said specific intent that distinguishes wilful homicide from homicide by misadventure or accident and homicide by negligence or involuntary homicide. In these two species of homicide there is an absence also of any intention to harm (animus nocendi). In the case of homicide by misadventure, the killing is the effect of pure accident (casus) and, therefore, not imputable to anybody; in the case of involuntary homicide, the killing is the consequence of an act of negligence, which excludes criminal intent, and is punished as an independent minor offence.

But it must be noted that, according to our law, the intent in wilful homicide need not be positively that of “killing” (animus necandi). It is sufficient if the intent is to “put the life of another person in manifest jeopardy”. Where the intent is "to kill", the intention is direct. Where the intent is "to put the life of another in manifest jeopardy", the intention is positive indirect. The law has considered that from the point of view of wickedness, having regard to the consequences ensuing, there is nothing to distinguish between a man who with the positive clear intent of killing proceeds to do

an act which in fact causes death, and the man who, although without positively desiring to kill, yet does an act which inherently and obviously is likely to kill and in fact causes death. The knowledge that the act is likely to kill, or the recklessness whether death, clearly foreseen as probable, shall ensue or not, is properly treated by the law on the same footing as the positive intention to kill. Every man must be presumed to intend the obvious and natural consequences of his voluntary acts: “dolus indeterminatus determinatur ab exitu”. In English law also, intention only to hurt - and not to kill - but to hurt by means of an act which is intrinsically likely to kill is considered sufficiently wicked to constitute murderous malice. “In the old case of Rex v. Holloway (1628) a park keeper, on finding a mischievous boy engaged in cutting some boughs from a tree in the park, tied him to his horse’s tail, and began to beat him on the back; but the blows so frightened the horse that it started off and dragged the boy along with it, and thus injured him so much that he died. The park keeper was held to be guilty of murder”397 .

But the specific intent we have Been discussing as essential to constitute wilful homicide, must not be construed as recurring premeditation, that is, the settled deliberate mind and design for some time before the commission of the act. If there is evidence of premeditation (concerted schemes, lying in wait), it makes it easier to prove the specific intent requisite. But even without any evidence of premeditation, such specific intent may well subsist. In other systems of law (e.g., Italian Code of 1889, Art. 366; Old Code of the Two Sicilies, Art. 348, etc.) which distinguished between wilful homicide of different degrees of gravity, premeditation was recognised as an aggravation but not as an essential notional element of the crime. A man who forms the intent to kill or to put the life of another in manifest peril and actually kills upon a sudden quarrel, although there may be no evidence of any previous coldblooded calculation, commits wilful homicide, even if, it may be, in certain cases, excusable. With regard to the requirement of "malice aforethought" in the English definition of murder, Kenny thus points out:

(The malice) “need never really be aforethought. except in the sense that every desire must necessarily come before, though perhaps only an instant before - the act which

397 Kenny, p. 155

is desired. The word ‘aforethought' in the definition, has thus become either false or superfluous”398 .

Now the specific intent - and, indeed, responsibility for wilful homicide - is not negated by the fact that the person who was actually killed is different from the one whom it was intended to kill, or that the offender did not intend to kill any particular person. Section 226 of our Criminal Code expressly applies the provisions of Section 225 (definition and punishment of wilful homicide) “even though the offender did not intend to cause the death of any particular person or, by mistake or accident, shall have killed some person other than the person whom he intended to kill” . The position is the same in English law. Among the several forms of ‘mens rea’ which have been held-to be sufficiently wicked to constitute murderous malice, Kenny mentions:

(i) “Intention to kill a particular person, but not the one who actually was killed.If a man shoots at ‘A’ with the intent and desire (or, as Bentham would express it, the ‘direct intention’) of killing ‘A’ but accidentally hits and kills ‘B’ instead, this killing of ‘B’ is treated by the law not as an accident but as a murder. In the old legal phrase, ‘malitia egreditur personam’ , the ‘mens rea’ is transferred from the injury contemplated to the injury actually committed.

(ii) Intention to kill, but without selecting any particular individual as the victim. This has been conveniently called ‘universal malice’. It is exemplified by the case put by Blackstone, of a man who resolves to kill the next man he meets and does kill him399 and by the more frequent and more intelligible case of Malays who madden themselves with hemp into a homicidal frenzy and then run ‘amok’; and by that of the miscreant who, about 1890, placed an explosive machine on board an Atlantic liner about to sail from Bremerhaven, in order to get the money for which he had insured part of the cargo”400 .

The same principles were applied and apply in the Italian Code and other Continental Codes:

398 Op. cit., p. 153 399 Comm., XV, para. 200 400 Op. cit., 153 - 154