Regina v. Cunningham clarified that the term “malice,” the most demanding standard of mens rea, means that the perpetrator either had the actual intention to cause the resulting harm or that they recklessly disregarded the foreseeable risk of the specific resulting harm. Malice is more akin to recklessness, rather than ill will.
Mr. and Mrs. Wade had divided their home into two: they occupied one side of the duplex, and the other unit was to be occupied by their daughter and future son-in-law, Cunningham, after they were married. In the basement of the unoccupied unit was a coin-operated gas meter. Cunningham, being short on cash, decided to tear the meter off the pipe to steal the coins inside. He walked away with eight shillings [1] and threw the meter away. Having not turned off the gas, despite it only being two meters away from him, the gas continued to flow. The dividing wall was not impervious, and the gas was able to seep through into the other unit. It made its way up to Mrs. Wade’s bedroom next door, partially asphyxiating her as she slept.
Cunningham was charged with larceny and indicted under § 23 of Offenses against the Person Act of 1861.
The Act provided that it was a felony to “unlawfully and maliciously administer to or cause to be administered to or taken by any other person any…noxious thing, so as thereby to endanger the life of such person.”
The trial court defined the term “malice” as general wickedness, wherein the defendant did “something which he has no business to do and perfectly well knows it.” The appellate court reversed, concluding that malice requires intent to cause the specific harm or reckless disregard for whether the harm would occur or not. Even though Cunningham performed an intentional bad act by stealing, he did not intend or recognize that harm to Mrs. Wade would occur; therefore, he did not act with malice.
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Authorities Cited:
Regina v. Latimer (1886)
Citation(s): 17 Queen's Bench Division 359
Latimer was knocked down by Chapple in a pub-house quarrel. He went outside for five minutes, but on his way out, belt in hand, he attempted to retaliate by hitting Chapple with his belt as he passed. Chapple was slightly hit, but the belt redirected, severely injuring the woman standing next to him.
Despite not intending to injure the woman, Latimer was held liable for her injuries. The Latimer court held that intent to injure a person can transfer to the injury of another. The Latimer court refused to expand Pembliton’s holding [2] to this set of facts, reasoning that injury to a person and injury to property are distinct harms, and thus different crimes. Albeit not the targeted recipient, the resulting particular harm to the woman was the same that Latimer intended to confer upon Chapple, and thus transfer of intent by the lower court was allowable.
The Cunningham court cited Latimer along with Pembliton to support their conclusion that mens rea can be transferred if both crimes result in the same particular kind of harm.
Regina v. Faulkner (1877)
Citation(s): 13 Cox's Criminal Cases 550
Robert Faulkner was a crewman on the Zemindar, a ship loaded with £50,000 of rum, sugar, and cotton. During the voyage from Demerara to Liverpool, Faulkner snuck down to the cargo hold intending to steal a bit of rum. Using a hand-held drill, he bore a hole into the rum cask. The rum kept pouring out, so he attempted to plug it. He lit a match to better see, but the match set the flowing rum on fire. At the time the fire was discovered, Faulkner was at the wheel and gave no indication he knew what had happened. While the crew was busy attempting to put out the fire, a small group of passengers, including the captain’s wife and child, boarded a boat and set off blue lights (a type of flare) and rockets through the night. Early in the morning another ship, the Annie, arrived and took the passengers on board. During this time, Faulkner confessed to having started the fire while attempting to steal some rum. As the fire engulfed and destroyed the ship, the Annie took the whole crew aboard. Upon docking in Cork Harbor, Faulkner was immediately handed over to the police. [3]
During the Faulkner trial, the jury was instructed to find Faulkner culpable (and thus guilty) for the arson if intent to commit the larceny was established. The lower court found that Faulkner did intend to commit larceny, and thus his intent was transferred to the subsequent felony of arson. The lower court convicted Faulkner for “feloniously, unlawfully, and maliciously” setting fire to the ship. But on appeal, the court rejected that Faulkner’s intent to steal the rum meant Faulkner would be “responsible for everything which would not have occurred but for'' the larceny he committed. It was not submitted to the jury whether this was true, but on Faulkner’s account, he claimed that he did not know that setting fire to the ship would be a foreseeable consequence of stealing the rum that he disregarded. If a jury had found the fire to be a foreseeable consequence which Faulkner disregarded, then he might have had “malicious” intent. However, without that resolved, it was inappropriate to transfer malicious intent from his first felony to the second.
The Cunningham court cited Faulkner as an illustration of jury misdirection when it comes to the meaning of the word “maliciously.”
Regina v. Pembliton (1874)
Citation(s): 12 Cox's Criminal Cases 607
A group, including Pembliton, was kicked out of an English pub for being too boisterous. Just outside the pub, the group began fighting members of a somewhat large crowd. After separating himself from the crowd, Pembliton moved across the street and threw a stone in an attempt to hit the people he had been fighting with. However, the stone went over the crowd’s heads and broke the pub’s window. The jury found that he intended to strike people in the crowd but that he did not intend to break the window. The trial court found him guilty of unlawful and malicious property damage.
On appeal, the Pembliton court held that intent to injure a person does not transfer as intent to damage property. Although Pembliton had malicious intent to injure people in the crowd, the court reasoned that malicious intent could not transfer, because his action did not lead to the same particular harm of bodily injury. They subsequently quashed his conviction.
The Cunningham court cited Pembliton to support their finding that the culpability associated with malice must have an intention to do a particular harm.