was a violation of ordinary care and public duty. But if it were proven only that some person had so done, without proper evidence that it was the defendant, or if any of the essential facts necessary to establish the offense were lacking, no jury would be allowed by the Court to guess it out. Justice Holmes undoubtedly had this thought in mind when he said, in the Nash case:[1] "The law is full of instances where a man's fate depends on his estimating rightly that is, as the jury subsequently estimates it, some matter of degree. * * * 'An act causing death may be murder, manslaughter, or misadventure, according to the degree of danger attending it.' " But this is, of course, to be reached "by common experience in the circumstances known to the actor."
To argue that these words of Justice Holmes meant anything except what he said,—that where men knew only part of the essential facts that would in the future surround the performance of the second half of the cycle called "trade," they could be punished under ex post facto laws and upon guesses; and where these unknown or unknowable facts were to be measured by a common experience that, for centuries, has had no existence, except that which was directly the opposite. It is beyond sound reason.
The common experience as to ordinary commodities has been through competition in a fair market, for all other methods have not merely been tried but have always failed. It needs no argument beyond the mere statement, therefore, that Justice Holmes, in saying that "the law is full of instances" meant either by "full" that there were no exceptions, or that he expressly confined these cases to those where the circumstances, without limitation, were known and could be
- ↑ Nash vs. United States, 229 U. S. 373 (see page 373). 1913.
