## Facts

- Leon Serné, a shopkeeper in serious financial distress, lived with his family in a house with an attached shop in London; his servant, John Henry Goldfinch, also lived on the premises.
- Within a month before a fire, Serné obtained substantial insurance on the stock, furniture, and rent, and also insured the life of his intellectually disabled teenage son, Sjaak (Jack) Serné.
- On September 17, 1887, witnesses saw Serné and Goldfinch together in the shop shortly before multiple fires broke out in several parts of the premises at about the same time.
- The fire patterns and placement suggested deliberate ignition, including fires on levels aligned with an escape route to an adjoining roof, where Serné’s wife and daughters escaped.
- Highly flammable advertising tissue materials were found in significant quantities near an apparent point of ignition and other flammable items.
- Two boys died in the fire; one body was found near an escape window and the other in the basement.
- The prosecution alleged the defendants set the fire to obtain insurance proceeds and that the resulting death of Sjaak constituted murder.

## Issues

1. How should “malice aforethought” be explained where death results from arson allegedly committed to accomplish insurance fraud rather than to kill?
2. Under what conditions does a killing that occurs during the commission of a felony constitute murder absent a specific intent to kill?

## Decision

- The defendants were tried on an indictment for murder based on wilfully setting fire to the premises, causing the boy’s death.
- The trial judge instructed that “malice aforethought” is a technical term and may be satisfied without proof of a specific intent to kill.
- The judge directed that murder includes a killing caused by an act done with intent to commit a felony, or by an act done with knowledge that it will probably cause death.
- The judge stated that any act known to be dangerous and likely to cause death, if done to commit a felony and death results, amounts to murder.
- The defendants were not convicted of murder, but the jury direction became widely cited for the stated rule.

## Legal Principles

- “Malice aforethought” in murder is a legal term of art and is not limited to an express intent to kill.
- Malice may be supplied where the defendant commits an act intending to carry out a felony and the act causes death.
- Malice may also be supplied where the defendant performs an act knowing death is a probable consequence, and death results.
- A felony-based murder instruction requires that the underlying act be known to be dangerous and likely to cause death, not merely that a felony was being committed.

## Conclusion

The case is chiefly known for the trial judge’s instruction that a resulting death is murder when a defendant, in order to commit a felony, performs an act the defendant knows is dangerous and likely to cause death, thereby treating lethal arson in furtherance of insurance fraud as satisfying malice aforethought even without a separate intent to kill.


Regina v. Serné, 16 Cox Crim. Cas. 311 (Cent. Crim. Ct. 1887)