The Common Law. Oliver Wendell Holmes

      The inconsistency, if there is one, seems to be explained by the way in which the law has grown. The distinctions of the common law as to theft are not those of a broad theory of legislation; they are highly technical, and very largely dependent upon history for explanation. /1/

      The type of theft is taking to one's own user It used to be, and sometimes still is, thought that the taking must be lucri catesa, for the sake of some advantage to the thief. In such cases the owner is deprived of his property by the thief's keeping it, not by its destruction, and the permanence of his loss can only be judged of beforehand by the intent to keep. The intent is therefore always necessary, and it is naturally stated in the form of a self-regarding intent. It was an advance on the old precedents when it was decided that the intent to deprive the owner of his property was sufficient. As late as 1815 the English judges stood only six to five in favor of the proposition [74] that it was larceny to take a horse intending to kill it for no other purpose than to destroy evidence against a friend. /1/ Even that case, however, did not do away with the universality of intent as a test, for the destruction followed the taking, and it is an ancient rule that the criminality of the act must be determined by the state of things at the time of the taking, and not afterwards. Whether the law of larceny would follow what seems to be the general principle of criminal law, or would be held back by tradition, could only be decided by a case like that supposed above, where the same act accomplishes both taking and destruction. As has been suggested already, tradition might very possibly prevail.

      Another crime in which the peculiarities noticed in larceny are still more clearly marked, and at the same time more easily explained, is burglary. It is defined as breaking and entering any dwelling-house by night with intent to commit a felony therein. /2/ The object of punishing such a breaking and entering is not to prevent trespasses, even when committed by night, but only such trespasses as are the first step to wrongs of a greater magnitude, like robbery or murder. /3/ In this case the function of intent when proved appears more clearly than in theft, but it is precisely similar. It is an index to the probability of certain future acts which the law seeks to prevent. And here the law gives evidence that this is the true explanation. For if the apprehended act did follow, then it is no longer necessary to allege that the breaking and entering was with that intent. An indictment for burglary which charges that [75] the defendant broke into a dwelling-house and stole certain property, is just as good as one which alleges that he broke in with intent to steal. /1/

      It is believed that enough has now been said to explain the general theory of criminal liability, as it stands at common law. The result may be summed up as follows. All acts are indifferent per se.

      In the characteristic type of substantive crime acts are rendered criminal because they are done finder circumstances in which they will probably cause some harm which the law seeks to prevent.

      The test of criminality in such cases is the degree of danger shown by experience to attend that act under those circumstances.

      In such cases the mens rea, or actual wickedness of the party, is wholly unnecessary, and all reference to the state of his consciousness is misleading if it means anything more than that the circumstances in connection with which the tendency of his act is judged are the circumstances known to him. Even the requirement of knowledge is subject to certain limitations. A man must find out at his peril things which a reasonable and prudent man would have inferred from the things actually known. In some cases, especially of statutory crimes, he must go even further, and, when he knows certain facts, must find out at his peril whether the other facts are present which would make the act criminal. A man who abducts a girl from her parents in England must find out at his peril whether she is under sixteen.

      [76] In some cases it may be that the consequence of the act, under the circumstances, must be actually foreseen, if it is a consequence which a prudent man would not have foreseen. The reference to the prudent man, as a standard, is the only form in which blameworthiness as such is an element of crime, and what would be blameworthy in such a man is an element;—first, as a survival of true moral standards; second, because to punish what would not be blameworthy in an average member of the community would be to enforce a standard which was indefensible theoretically, and which practically was too high for that community.

      In some cases, actual malice or intent, in the common meaning of those words, is an element in crime. But it will be found that, when it is so, it is because the act when done maliciously is followed by harm which would not have followed the act alone, or because the intent raises a strong probability that an act, innocent in itself, will be followed by other acts or events in connection with which it will accomplish the result sought to be prevented by the law.

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