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Page:Harvard Law Review Volume 2.djvu/199

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NOTES. l8i

Dartmouth, Brown, Colby Univ., Notre Dame, Kenyon, Ky. MilL Inst., Cambridge Univ., Hanover, Princeton, Centre Coll., Univ. of Cinn., Wesleyan, Cornell, and Norwich Univ.

Compared with the number of students registered in October of last year (i Harv. Law Rkv. 145), these figures show an increase of 18 in the total number, and a decrease of 6 in the number of new students, which would indicate that a greater proportion now remain to com- plete the entire course. The total number of students registered during all of last year was 215, or 5 less than the number already registered this year.

The proportion of the new men who are college graduates is slightly increased.

In the recent English case of Reg, v. Sernky 16 Cox C. C. 311, Stephen, J., in a dictum, expresses decided distrust of the old common- law doctrine laid down by Lord Coke, that the accidental killing of a person through an act done with an intent to commit felony — as, for example, the shooting at a fowl with intent to kill it — is murder. He doubts whether that is " really the law," and whether it would be fol- lowed by the courts to-day, and says : " Instead of saying that any act done with intent to commit a felony, and which causes death, amounts to murder, it would be reasonable to say that any act known to be dangerous to life, and likely in itself to cause death, done for the purpose of committing a felony, which caused death, should be mur- der. As an illustration of this, suppose that a man, intending to commit a rape upon a woman, but without the least wish to kill her, squeezed her by the throat to overpower her, and in so doing killed her, that would be murder." "The Law Quarterly Review,"^ in com- menting upon this case, says : " It is very desirable that the criminal law should not be at variance with the moral sense of the community. Doubting is a very convenient first step towards getting rid of archaic portions of the law." It is to be hoped that this doubting process will continue until the common law is brought squarely into conformity with the doctrine suggested by Mr. Justice Stephen.

" The Law Quarterly " also points out that, as the doctrine now stands, "the books of authority are not even consistent in absurdity on this point ; " for if A fires a pistol at B under such provocation that if he killed B it would be only manslaughter, and the bullet strikes and kills X, this is held to be only manslaughter, although by Coke's rule it is clearly murder. This critcism, however, apparently overlooks the fact that this inconsistency would not be obviated by the adoption of Mr. Justice Stephen's rule. The killing of X would be, in theory, as clearly murder by his rule as by that of Lord Coke, and the present holding of the courts as inconsistent therewith.

The Governor of Kansas was recendy reported to have made an interesting innovation in the use of the pardoning power by granting a pardon to a wife-murderer on the condition that he abstain in the future from the use of intoxicating liquors, relying, it is said, upon an Iowa decision holding such a pardon valid. Additional authority is also to be found in a' dictum in the case of U, S, v. Wilson^ quoted in I Harv. Law Rev. 244, in which Marshall, C. J., in support of the

> Vol. 4, p. 489. « 7 Pet. ISO.