Weldon, E. Durward

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University of Kentucky

Kentucky Law JournalVolume 34 | Issue 3 Article 81946Criminal Law--The Doctrine of Transferred Intentin HomicideE. Durward WeldonUniversity of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Criminal Law CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Note is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal byan authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationWeldon, E. Durward (1946) "Criminal Law--The Doctrine of Transferred Intent in Homicide," Kentucky Law Journal: Vol. 34 : Iss. 3 ,Article 8.Available at: https://uknowledge.uky.edu/klj/vol34/iss3/8CRIMINAL LAW-THE DOCTRINE OF TRANSFERREDINTENT IN HOMICIDESir Matthew Hale well states the problem involved intransferred intent in writing that "if A. by malice forethoughtstrikes at B. and missing him strikes C. whereof he dies, thohe never bore any malice to C. yet it is murder, and the lawtransfers the malice to the party slain ... "1 The courts haveasserted this doctrine in cases of homicide resulting from ablow or the use of a gun 2 or poison. 3 It has also been appliedin cases of arson4 and burglary 5 and in tort actions.0 Theproblem to be considered in this note is in what manner thelaw explains the transfer of malice from one person to anotherperson toward whom no actual malice exists.The answer has- come from a gradual building up of therationalization of the rule over a period of several hundredyears, and a number of the reasons will be enumerated. Black-stone, calling it implied malice, writes that the "previousfelonious intent" to kill makes the rule applicable,7 and AgniesGore's Case states that "the law joins the intention with theevent." 8 The fiction that "the intention follows the bullet"has been used as a partial basis in a number of cases.9 Inintroducing the ground of public policy, Wharton states thatit is the policy of society to protect life and to enforce justiceagainst persons having a state of mind which intends the killingof one of its members.10When we turn to the field of torts, closely related to thecriminal law in this doctrine because of the o~iginal closeassociation of intentional torts with crimes," we find that the"HALE, HISTORY OF THE PLEAS OF THE CROWN (1778) 466.'United States v. Hart, 162 Fed. 192 (1908); Commonwealth v.Caldwell, 223 Ky. 65, 2 S. W. 2d 1055 (1928); Shelton v. Common-wealth, 145 Ky. 543, 140 S. W. 670 (1911).' State v. Fulkerson and Butner, 61 N. C. (Phil. 233) 152 (1867);Agnes Gore's Case, 9 Coke 81 a, 77 Eng. Rep. 853 (1611).4 Reg. v. Regan, 4 Cox. C. C. 335 (1850).5 1 WHARTON, CRIMINAL LAW (12th ed. 1932) 212.'Talmage v. Smith, 101 Mich. 370, 59 N. W. 656 (1894).IV BL. COMM. (11th ed. 1790) 201.89 Coke 81 a, 77 Eng. Rep. 853 (1611).'State v. Batson, 339 Mo. 298, 96 S. W. 2d 384, 389 (1936);Carpio v. State, 27 N. M. 265, 199 Pac. 1012, 1013 (1921).I WHARTON, CRIMINAL LAW (12th ed. 1932) 746.On this point, see PROSSER, TORTS (1941) 47.STUDENT NoTEsearly law provided that a defendant whose act had caused harmto another was prima, facie liable as a trespasser unless hecould show himself free from fault, a thing which he was unableto do if he had an intention to harm anyone in a like manner.12The real basis of the rule in homicide cases 13 seems to bethat the actor has the kind of nzens rea necessary for an inten-tional murder;14 that is, he intends serious bodily harm ordeath to a human being'5 and commits on C the same characterof act that he intended to commit on B. The intention of thedefendant is the clue; for if A, acting upon a justificationsuch as self-defense, fires at B and ldlls C instead, he will notbe held responsible. When, from a subjective standpoint, onehas a wrongful intent to kill, there exists a dangerous state ofmind which, when executed by the act,' 6 is conduct contraryto the policy of society to protect life; and the actor should bepunished as if he had carried out the crime as originally in-tended.The courts have overwhelmingly decided that the degreeof guilt is the same as it would be if the person intended hadbeen killed;17 and in some jurisdictions this means that thedefendant may even be guilty of murder in the first degree, if-'RESTATEMENT, TORTS (Tent. Draft, 1935) Commentary to sec-tion 10 (1)." Although this paper is concerned only with transferred intentin homicide cases, it is believed that this statement, and the ration-alization which follows, are also true in other cases of transferred.intent in torts and crimes.""An intention to cause the death of, or grievious bodily harmto, any person, whether such person is the person actually killed ornot." STEPHEN, A DIGEST OF THE CRIMINAL LAW (1877) 161.'The intention to shoot a dog is held insufficient to meet therequirement of intent: People v. Keefer, 18 Cal. 636 (1861); as isthe intention to poison rats, where a person took the poison: SeeAgnes Gore's Case, 9 Coke 81 a, 77 Eng. Rep. 853 (1611). 'But seehypothetical cases in 20 IRISH LAW TIMES 276 (1886).'For a discussion of the intent and the act being joined, seePerkins, A Rationale of Mens Rea (1939) 52 HARV. L. REV. 905,927-928."Winton v. State, 229 Ala. 642, 159 So. 62 (1935); Mayweatherv. State, 29 Ariz. 460, 242 Pac. 864 (1926); Brown v. State, 175 Ga.329, 165 S. E. 252 (1932); Bolen v. Commonwealth, 265 Ky. 456, 97S. W. 2d 1 (1936); State v. Treficanto, 106 N. J. L. 344, 146 Atl. 313(1929).KENTUCKY LAW JOURNALthe statutes so allow.' 8 It necessarily follows that the samedefenses are available to the accused as he would have had if hehad killed the person whom he intended as the victim.1 9Thus far, we have considered only the way in whichthe law has applied the rule by transferring malice; but there issupport for other views. Wharton, for instance, suggests thatif the field were still fully open for development, the logicalresult might be quite different, with an indictment for (1) anattempt to kill B and (2) the negligent manslaughter of C.20It is the opinion of the writer, however, that the establisheddoctrine is desirable, since, subjectively, the actor has a state ofmind which intends a homicide; and, objectively, that state ofmind has manifested itself in the external world in the deathof a human being.E. DUpWARD WELDON"sPeople v. Weeks, 104 Cal. App. 708, 286 Pac. 514 (1930); Statev. Taylor, 65 Ore. 505, 132 Pac. 713 (1913). Some cases, however,have held the crime to be second degree murder only, under a statuterequiring express malice toward the person actually killed: Musick v.State, 21 Tex. App. 69, 18 S. W. 95 (1886); McConnell v. State, 13Tex. App. 390 (1883).'Noe v. Commonwealth, 290 Ky. 194, 160 S. W. 2d 600 (1942).I WHARTON, CRnmNAL LAW (12th ed. 1932) 746.

Criminal Law--The Doctrine of Transferred Intent in Homicide

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Criminal Law--The Doctrine of Transferred Intent in Homicide

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