The Criminal Law Journal of India Journal December 1921

The actual decision and the dicta in a recent case in the House of Lords* nicely illustrate the incessant struggle between the objective and the subjective points of view in the criminal law between the idea of punishment as retribution based on desert and that of punishment as prevention based on social necessity. [...] On the question of constructive murder the decision clearly reasserts the once welseAled law that an act done in the furtheance of a violent felony and resulting in death is murder. [...] Drunkenness could therefore have no effect on the elements of that felony or of the murder the malice necessary for the latter being implied without more from the commission of the rape. [...] (1) (1887) 16 Cox C.0 811 318.24 THE CRIMINAL LAW JOURNAL 11921 But while the Court in fits decision thus steadfastly faces toward the objective criterion and refuses to admit those considertions of moral blame which denote the play of the subjective-desert" motive Janus-like it looks in the opposite direction in certain of its dicta. [...] The difficulty of proving the exact condition of the defenant's mind and the inability of the Jury to judge the nuances of drunkenness lead one to look with hesitancy upon any general modification of the law as suggested in the Court's dicta.