It needs no further explanation to show that, when the particular defendant does for any reason foresee what an ordinary man of reasonable prudence would not have foreseen, the ground of exemption no longer applies.  A harmful act is only excused on the ground that the party neither did foresee, nor could with proper care have foreseen harm.

It would seem, at first sight, that the above analysis ought to exhaust the whole subject of murder.  But it does not without some further explanation.  If a man forcibly resists an officer lawfully making an arrest, and kills him, knowing him to be an officer, it may be murder, although no act is done which, but for his official function, would be criminal at all.  So, if a man does an act with intent to commit a felony, and thereby accidentally kills another; for instance, if he fires at chickens, intending to steal them, and accidentally kills the owner, whom he does not see.  Such a case as this last seems hardly to be reconcilable with the general principles which have been laid down.  It has been argued somewhat as [58] follows:—­The only blameworthy act is firing at the chickens, knowing them to belong to another.  It is neither more nor less so because an accident happens afterwards; and hitting a man, whose presence could not have been suspected, is an accident.  The fact that the shooting is felonious does not make it any more likely to kill people.  If the object of the rule is to prevent such accidents, it should make accidental killing with firearms murder, not accidental killing in the effort to steal; while, if its object is to prevent stealing, it would do better to hang one thief in every thousand by lot.

Still, the law is intelligible as it stands.  The general test of murder is the degree of danger attending the acts under the known state of facts.  If certain acts are regarded as peculiarly dangerous under certain circumstances, a legislator may make them punishable if done under these circumstances, although the danger was not generally known.  The law often takes this step, although it does not nowadays often inflict death in such cases.  It sometimes goes even further, and requires a man to find out present facts, as well as to foresee future harm, at his peril, although they are not such as would necessarily be inferred from the facts known.

Thus it is a statutory offence in England to abduct a girl under sixteen from the possession of the person having lawful charge of her.  If a man does acts which induce a girl under sixteen to leave her parents, he is not chargeable, if he had no reason to know that she was under the lawful charge of her parents, 1 and it may be presumed that he would not be, if he had reasonable cause to believe that she was a boy.  But if he knowingly abducts a girl from [59] her parents, he must find out her age at his peril.  It is no defence that he had every reason to think her over sixteen. 1 So, under a prohibitory liquor law, it has been held that, if a man sells “Plantation Bitters,” it is no defence that he does not know them to be intoxicating. 2 And there are other examples of the same kind.