Guoshi Killing

Guoshi Killing as Accidental Killing

In this section, we will examine guoshi killings that fell under the definition of accidental acts. It is important to note that accidental deaths were usually considered the result of accidental crimes, and not accidental acts, under late imperial law. In other words, despite the absence of any criminal intent, the act was still considered a crime. The tenor of the guoshi statute in the late imperial codes and their commentaries emphasized the accidental nature of guoshi. Consider the following definition given to the term guoshi in codes of the Tang, Song, Ming, and Qing:

Guoshi means that which the ears and eyes do not reach, that which contemplation does not attain 耳目所不及,思盧所不到. For example, shooting wild animals, or for some reason throwing away bricks and tiles, and unexpectedly 不期 killing somebody; or, because one is climbing and in a dangerous step, slips and falls and involves others; or if riding a boat pushed by the wind, or riding a horse that starts; or driving a cart downhill and one’s strength is not adequate to stop it; or lifting a heavy object with others and one’s strength is not enough to support it such that one of the other lifters is injured; in all [of these instances] there is initially no harmful intention 凡初無害人之意, but by chance 偶 there results a person’s injury or death. (Xue, [1905] 1970: A. 292.00; modified from Great Qing Code, 1994: 19, 278, and Alabaster, [1899] 1968: 261)

The Tang and Song codes elaborated on these definitions, noting that “that which the ears and eyes do not reach” meant that “the ears do not hear sounds of people, the eyes do not see people coming out” 耳不聞人聲耳不見人出 (Tanglü shuyi, 1996: 289; Song xingtong, 1984: 410; Johnson, 1997: 384). In addition, “that which contemplation does not attain” meant the incident occurred in “a secluded place, a place where there ought not to be people” 幽僻之所其處不應有人 (Song xingtong, 1984: 410; modified from Johnson, 1997: 384). The Qing Board of Punishments echoed these definitions in a 1771 ruling: “All matters of guoshi arise out of the unexpected” 意外 (Xing’an huilan, 1886: 31.39b). Huang Liuhong, a county magistrate in Shandong and Zhili (Hebei) provinces in the early Qing, concurred, calling an incidence of guoshi “a case of pure accident; [it is] understood [to be] a case of which no sufficient previous warnings could have been given” (Huang, 1984: 335).

Since a guoshi killing was unexpected, the exact means by which the victim died was irrelevant. According to the Board of Punishments, “It matters not if the deadly weapon is scalding water or fire, a metal blade, hand or foot, or some other object. One should always evaluate 核 whether or not it was a situation of ‘that which contemplation does not attain’” (Xing’an huilan, 1886: 31.42a). In the eyes of the Board, the lack of a mental element to the crime was of paramount importance. As a result, monetary redemption was available to all persons found guilty of accidental killing, and not just those who would normally be eligible for redemption, such as the only sons of elderly parents, the elderly themselves (older than 70 years), and officials.

Consider the following trio of guoshi homicide cases from the Beijing municipal area. All three cases involved runaway carts, and all three illustrate use of the guoshi homicide statute to prosecute accidental acts.

The first case took place in Beijing in 1874. Yao Pengyuan, who worked as a water bearer, was crushed to death by the runaway cart of city resident Chong Gui (Xianshen anjian: Jiangsu 9421). According to the testimony of the latter:

In the evening on the fifth day of the twelfth month, I was driving an empty [horse] cart. Upon reaching Wudaoying, I suddenly encountered a man carrying hides. . . . The horse’s eyes went back, [and] it was startled and ran. I hurried to rein [the horse] in but could not, and [the cart] turned over. Yao Pengyuan, who was pushing his water cart nearby, couldn’t get out of the way, and was knocked down by the horse. The cart wheel crushed him in the right ribs and such places . . . I caught up and helped Yao Pengyuan up. . . . Unexpectedly the next morning he died. . . . I ask only for compassion. All that I have stated is true.

A street watchman in Wudaoying, Fu Lu, witnessed the accident and corroborated Chong Gui’s account. The Board of Punishments ruled the case one of guoshi killing, giving the following rationale:

Because the horse was startled and ran, the criminal suddenly could not rein him in and [the cart] turned over. . . . It seems that this was a situation of that which the ears and eyes do not reach, that which contemplation does not attain. There was no intention to harm, but by chance a person died.

The court thus ruled this case one of accident: Chong Gui did his best, but his horse was startled due to unforeseeable circumstances. In accordance with the statutes, the court issued a standard guoshi verdict: death was the initial sentence, but monetary redemption of punishment was to be allowed, with the money going to the victim’s family. Following codified Qing law, though there was no intent and minimal blame in this guoshi case (seen in the automatically redeemable death sentence), there was nonetheless a degree of responsibility assigned to the perpetrator (paying a fine to the victim’s family). In paying the victim’s family, the actor was still punished. The initial death sentence also allowed a symbolic nod to the principle of requital-in-kind 抵命, the notion that when a person killed, his life would be taken in return. ³

In this case, the court quoted directly from the guoshi law when providing a rationale for its sentence. The court did so routinely for guoshi cases in which the circumstances were deemed accidental and in which the actor was deemed as innocent as was possible for a convicted homicide offender under the Qing judicial system.

In 1897, for instance, the Board reviewed the case of Tian Derun, whose runaway mule crushed to death Zheng Da, a middle-aged cook in a local factory (Xianshen anjian: Jiangsu 9434). Tian made a living transporting goods in a mule cart. On the day in question, he was passing through the Zhengyang Gate in Beijing when the cart’s rope broke. According to his testimony, “The mule’s eyes went back and startled, he ran. I was not able to hold him fast.” Tian fell from the cart after himself sustaining an injury and he ended up on the ground, unconscious. He quickly recovered, but in the meantime the mule had run off through the gate. Zheng Da was just outside the gate talking to a friend, Chen Er, who testified, “Suddenly from inside the gate came a mule cart without a driver. I ran clear, [but] Zheng Da had nowhere to go and was knocked to the ground by the cart shaft.” Zheng Da died, and the coroner ruled the cause of death to be injuries received when struck by the cart.

When making its ruling, again the court quoted from the guoshi statute: “This was a situation of that which the ears and eyes do not reach, that which contemplation does not attain. There was no intention to harm, but by chance a person died.” Tian Derun’s mule was spooked and knocked him to the ground. He had no way to regain control of his cart. Zhang Da’s death was an accident. Tian Derun was sentenced to death but was allowed to redeem his punishment monetarily, as per the law. In this case, he had to sell off his mule and cart to the nephew of the victim to obtain the necessary funds. Again we have a person found guilty of a crime and forced to pay restitution for an accidental act. And in this case, paying that fine was a harsh penalty indeed—Tian Derun was a deliveryman and had to sell his means of livelihood to redeem his punishment.

A 1904 Beijing case of accidental-guoshi homicide involved the death of Lu Yongtai, an elderly man engaged in small-scale trade, at the hooves of a runaway mule cart being driven by a commoner named Li Wang’er (Xianshen anjian: Huguang 13602). Li had come into the city to make a delivery, and was driving his reloaded two-mule cart home with a new load when out of the blue one of the mules bit the other. The mule on the receiving end bolted, and soon both mules were dragging the cart along, with Li Wang’er unable to control them 揪拉不住. Thereupon, they came across the hapless victim. Li Wang’er testified, “[I] called out for him to get out of the way 躲避. Unexpectedly, Lu Yongtai did not hear me and continued on, with the result that the mule load . . . ran him down.” The details of this account were confirmed by a local patrolman, and the autopsy report found no evidence of foul play. The court made inquiries of Lu Yongtai’s son, Lu Dianyou, and learned that the victim was not only nearsighted, but deaf as well, so he likely heard neither the warnings nor the clamor of his approaching demise.

As in the cases above, the court ruled that “it really was a case of that which contemplation does not attain,” and that since there was no prior enmity between the parties, and since the death was brought about accidentally 偶, a sentence of guoshi killing was issued, with monetary redemption of punishment allowed. ⁴ Even though the final penalty was the lightest possible under the Qing judicial system, Li Wang’er was still convicted as a criminal. Responsibility had to be assigned, even if in the end that punishment amounted to only a fine.

As these cases show, the guoshi statute applied fault to cases involving no mentally culpable state of mind, no degree of intent. If it could be established that one person’s actions could be linked to another person’s death, then the guoshi statute came into effect. In other words, Qing law seems to have had looser requirements for establishing causality between actions and results than we will find in the laws of the Republic. At the same time, as will be seen below, Qing law’s conception of negligence and recklessness was much more detailed than that provided under Republican law.

Guoshi Killing as Negligent Killing

In addition to dealing with accidental crimes, the guoshi killing statute also covered situations that crossed the boundaries from accident into an arena of slightly greater culpability. In such instances, the case usually fulfilled part of the requirement for accidental guoshi killing (e.g., it was something “which the ears and eyes do not reach”), but failed to fulfill the rest of the requirement for accidental guoshi killing (e.g., not being a case of “that which contemplation does not attain”).

A variation on this theme occurred in the 1826 case of Ni Fu, which was forwarded to the Board of Punishments from Jiangsu province (Xing’an huilan, 1886: 31.46a). According to the Board, Ni Fu and his friend Liu Ligang had been sitting

on a boat imbibing copious amounts of liquor and getting quite drunk. Eventually Liu Ligang decided he had reached his limit, so he went to go rest in the stern of the boat. [Ni Fu] pulled Liu Ligang by the belt and demanded that he get up and drink some more. Liu Ligang went to wrest himself away and replied that he [would] not drink [any more]. [Ni Fu] was unsteady in his drunken state and as Liu twisted away, Ni Fu slipped and fell on top of Liu [killing him].

After some deliberation, the Board of Punishments issued a sentence of guoshi killing in this case, commenting that “although [this] does not quite match with ‘that which the ears and eyes do not reach’ it mostly matches with 大半吻合 ‘that which contemplation does not attain.’” As a precedent for this ruling the Board cited an 1823 case that also involved drunkenness. In that earlier case, a drunk man was being helped home by another man on a rainy evening. They were walking along a riverbank when the drunken man slipped on the slick path and fell, dragging his companion into the water. Only the drunken man survived, leading to a sentence of guoshi killing for the survivor.

In this case, the alcohol-impaired physical and mental capacities of the offender did not lead to a harsher penalty. Instead, partial fulfillment of the standard requirements for a guoshi sentence was adequate to receive a guoshi sentence. The court acknowledged that such cases were something more than accident, but that did not mean they were something other than guoshi.

That point was made even more clearly in the 1812 case of Liu Lanzheng, from Guangxi province, when a ruling of guoshi killing was issued despite the circumstances being even more serious (Xing’an huilan, 1886: 31.45a). According to the Board, “Liu Lanzheng was hired by a lumber shop, moving and piling up some pine boards.” While Liu went to get a load of boards, a six-year old boy began to play on the partially completed pile of wood. Liu dropped his next load on top of the youngster, and the boy died soon thereafter from the injuries he sustained. The Board noted that Liu “was not paying enough attention” 放不及照顧, but still ruled this a case of guoshi. Clearly, this was more than a simple accident, as Liu should have been more careful in carrying out his job. However, the guoshi statute was broad enough to include not just accidental crimes, but also crimes with a higher degree of fault.

In addition to these cases sentenced under the guoshi statute, select additional statutes that covered crimes that went past the bounds of accident permitted the same minimal punishment as that assigned to accidental acts. Though not directly sentenced under the guoshi laws, by analogy these cases were considered guoshi crimes, too.

Take, for example, the 1902 case of Zhang Er, an elderly nightsoil collector who was run into by a donkey cart owned by Ma Shuaibin in Daxing county outside Beijing (Xianshen anjian: Guizhou 22363). The cart owner testified about what happened on the day of Zhang Er’s death:

[I] transported five shih of maize to be sold at the Kang family grain brokers on Dongju Street. ⁵ I unloaded the maize and put the cart on Dong[ju] Street. I was headed to the grain broker entrance and had just reached the measures when unexpectedly this Zhang Er was at the side of my cart collecting manure. The shaft horse’s eyes went back and startled, it ran. . . . I went to look and saw Zhang Er lying on the ground. I helped raise him to a sitting position and [he] was still breathing.

Witnesses confirmed this version of events. Zhang Er’s son came and took his father home, where he died. The Board ruled that although Zhang Er’s death was “not something the criminal could have anticipated” 非該犯意料所及, he should have known that “horses by nature are not docile” 馬性不馴. As a result, the Board considered Ma’s failure to tie up the horse “careless” 疏忽. Ma was sentenced under Article 234, “Domestic Animals That Bite or Kick People” 畜產咬踢人, which contained a provision for people who did not properly restrain their animals with the result that a person was injured or killed. If death did result, the code stated that the laws on guoshi killing should be used to sentence the criminal (Xue, [1905] 1970: A.234.00). Therefore Ma received the same penalty as that assigned to guoshi killing (in essence a fine), implying a low level of culpability. Here, then, we find a non-accidental crime—it was after all called a “careless” act by the Board—placed in the same category of culpability as guoshi killing. Thus, while the category of guoshi killing encompassed crimes of pure accident, the concept of guoshi was broad enough to involve acts that involved a low-level mental element, a degree of neglect.

Another case that involved a similar penalty came before the Board of Punishments in 1905 (Xianshen anjian: Yunnan 21690). In this case Geng Bozhang and Zhang Luozi, two young factory workers in Beijing, were suffering from persistent syphilitic lesions 髒瘡. According to their friend, Mao Wu, when the boils took on a foul odor, Mao Wu and another friend, He Yongshan, took them to Shuang Quan for treatment. Shuang Quan testified:

[I am] seventy-two sui. ⁶ I make a living running a baked cake shop in Daqiao outside the Chaoyang Gate, and I also cure venereal diseases. On the eighteenth day of the third month of this year, Mao Wu and He Yongshun brought Geng Bozhang and Zhang Luozi to my shop and asked me for a cure. I looked and saw that [they] both had sores. I used a recipe of calomel, eggplant, and grain to be burned [and inhaled] for a cure. Mao Wu paid me 6,000 文 and everybody left.

Unfortunately, despite this “cure,” the men’s condition continued to deteriorate after they had returned to the factory. They became so ill that Mao Wu took them to his grandfather, a Daoist priest named Mao Libin. According to his testimony,

Mao Wu and this He Yongshun pulled a cart carrying Geng Bozhang and Zhang Luozi to my home in the temple for me to take care of their illness. I consented, and saw that Geng Bozhang’s illness was grave. I questioned them and [learned of Shuang Quan’s treatment]. They brought Shuang Quan to see [the men].

According to Mao Wu, at this point Shuang Quan told the men “it was not serious and helped Geng Bozhang up and pressed at his abdomen.” Geng Bozhang died later that day, and Zhang Luozi died five days later at the temple. An autopsy was performed on both bodies, and the coroner found that they were poisoned by the medicine they had been given.

The court ruled in this case according to the Qing Code Article 297, “Incompetent Doctors Who Kill or Injure People”: if the doctor “mistakenly fails to use the proper methods and because of this brings about death . . . if there was no evidence of the intention to harm, use the guoshi laws to sentence” (Xue, [1905] 1970: A. 297.00; modified from Great Qing Code, 1994: 281). Shuang Quan’s death sentence was thus redeemable, and he paid the fine to the families of the deceased. This case too, then, was one of guoshi that was not simple accident, but rather was assigned a low level of mental culpability.

Similarly, in a 1791 case from Sichuan, Li Xiuyu used impure ingredients when concocting a medicine he sold to Wu Guixiang, and two people died as a result of taking it (Xing’an huilan, 1886: 33.28a). The court sought to decide this case according to Article 297, quoted above. Li Xiuyu was allowed to monetarily redeem a death sentence, but was sentenced additionally to 100 blows of the heavy bamboo and three months in the cangue for bringing about the deaths of more than one person. In this case of what could be called low-level negligence, the multiple deaths seem to have necessitated a more serious punishment than the standard guoshi sentence given such cases.

Non-Guoshi Negligence

Both the case of the improperly tied horse and the cases of the incompetent physicians suggest that Qing law possessed a complex conceptualization of the mental element involved in crime, far beyond a simple accident-versus-intent dichotomy. In addition to the guoshi-equivalent crimes that went beyond the realm of pure accident, the Qing Code contained a number of statutes that covered offenses considered unintentional but still more serious than accidental offenses. These crimes all warranted more serious sentences than guoshi killing, but less serious sentences than those for crimes involving harm that was committed intentionally. In essence, these crimes occupied the category of mid-level criminal negligence.

The first such crime to be considered here is that of killing with a bow and arrow (Xue, [1905] 1970: A. 295.00). The statute in the Qing Code read:

For those who, without reason 無故, fire a bullet or shoot an arrow or throw tiles or stones toward a city or a place where people live . . . if death results, sentence to 100 blows of the heavy bamboo and exile to 3,000 li. (Modified from Great Qing Code, 1994: 280)

The statute on killing with a bow and arrow in the Ming Code (Da Ming lü jijie fuli, [1908] 1989: 19.30a) was the same, with the exception of one character. In the Ming Code, the first line of the statute just contains the character 故, reading: “For those who intentionally 故 fire a bullet. . . .” The commentary notes that the 故 here means “with no reason, but intentionally.” The character 無 was added to the Qing Code in 1725 for clarity (Xue, [1905], 1970: A. 295.00). Both versions of the statute, however, conveyed an awareness of one’s act and the possible consequences. A substatute to the article in the Qing Code, added in 1801, added killing with a fowling gun 鳥槍 to the statute (Xue, [1905] 1970: A. 295.01). Xue Yunsheng notes that this substatute incorporated into the law hunting deaths, wherein “firing [the gun] was not unintentional” 非無故 (Xue, [1905] 1970: A. 295.01). In other words, an offender whose crime fell under this law chose to fire a gun or shoot an arrow in a location where it was possible that a person could be injured or killed as a result. Such acts were not innocent accidents and not guoshi, and therefore required the harsher penalty of beating and exile.

The codes also acknowledged that the crime of killing with a cart or horse was a more serious matter than guoshi killing. The relevant Qing law (Xue, [1905] 1970: A. 296.00) read:

For those who, without reason, gallop 跑走 on a horse or drive a cart very fast in streets or markets or market towns . . . if death results, [punish with] 100 blows of the heavy bamboo and exile to 3,000 li. If one gallops a horse without reason in the countryside or a wild area where there are [usually] no people . . . and causes death, punish with 100 blows of the heavy bamboo. (Modified from Great Qing Code, 1994: 281)

The commentary to the earlier Tang Code iteration of this statute had called killing with a cart or horse “rash” 唐突 (Tanglü shuyi, 1996: 324). Thus, if one recklessly galloped through a market or along a street and harmed others, punishment was due. Even if one was galloping in a remote area, galloping was inherently dangerous, and one should have been aware of the potential harm involved.

In 1771, the Board of Punishments voiced its concern that crimes that should be adjudicated under this cart-or-horse law would be erroneously classified as guoshi crimes:

The article on killing with a cart or horse and the article on guoshi killing are the easiest to fall into confusion qianhun 牽混. . . . Examining the interlinear commentary of the guoshi law, there is the phrase “riding a horse that starts” 乘馬驚走. But killing or injuring a person because a horse starts is different from galloping a horse without reason [and causing injury]. (Xing’an huilan, 1886: 31.38b)

The Board continued, quoting from the guoshi statute to spell out exactly how killing with a horse or cart fell outside the bounds of accidental acts:

If one gallops a horse without reason and causes injury to another, that certainly is not something that cannot be anticipated 意料所不及. Therefore only reduce the penalty for killing in an affray by one degree. . . . ⁷ The phrase “riding a horse that starts” in the guoshi interlinear commentary specifically means that the horse or mule is frightened by some external cause and the rider is unable to control [it]. If for no reason one hastens [the horse] with the result that the horse is startled and kills or injures a person, that is not “that which contemplation does not attain.” (Xing’an huilan, 1886: 31.39b) ⁸

The crime of killing with a cart or horse was considered slightly more serious than killing with a bow and arrow, and as a result burial costs were also required of one who committed this crime in addition to the mandated beating and exile. The rationale was provided in commentary to the Ming Code: whereas in the case of killing with a bow or arrow the injury was not within eyesight, in the case of running a person down with a horse or cart “the victim was right in front of [the perpetrator’s] eyes and [he] did not care to rein in [the horse]” 人在眼前全無控馭之心 (Da Ming lü fuli zhujie, 1993: 715).

Finally, we have the category of losing control of a fire (Xue, [1905] 1970: A. 382.00). Under this statute any person who lost control of a fire, with the result that someone was killed, was punished with 100 blows of the heavy bamboo. The loss of control was always unintentional (intentionally setting fires was covered under a separate statute of the code, Article 383.00), but nevertheless the punishment mandated for those who committed this crime—a beating—indicates that the degree of blame assigned this offense was higher than that assigned to guoshi offenses. As with the two other statutes discussed above, this offense was more serious than that of guoshi, and thus necessitated a more serious punishment.

To examine how these negligent homicide statutes were adjudicated in practice, let us first examine an 1826 case from Shandong province, the firearms case of Fang Xiaoliu (Xing’an huilan, 1886: 33.25a). Fang had been watching a funeral for a member of the Cui family. According to the Board’s report, Fang observed Gong Tianzhi, “who had been hired to fire a salute, take his gun and gunpowder and safely place them in the doorway,” where he thought they would be out of harm’s way. The Board continued: “The criminal [went over and] picked up the gun and fired it. Ma Chengtong, who was leaving his home nearby, was shot in the right temple.” Ma eventually died from his injury. The Board ruled that Fang ought to be sentenced according to the law on killing with a bow and arrow for “shooting toward a place where people live, and mistakenly 誤 injuring a person” (Xue, [1905] 1970: A. 295.01). Because the death occurred so long after the time of injury and when the victim had also fallen ill, the penalty of exile to 3,000 li was reduced to three years’ penal servitude, still a much more severe punishment than that for guoshi killing, and still placing this case firmly in the intermediate realm between accident and intent.

Consider also the 1902 case of Liu Er, a teahouse owner who lived outside the Chaoyang Gate with his wife, Liu Chen Shi, and their daughter (Xianshen anjian: Fujian 10842). One night Liu Er fell asleep and left a fire burning in his tea stove. A shed caught fire and the house burned down. Although Liu Er was able to escape, his wife and daughter were trapped inside by the flames and died. The Board ruled that Liu Er had been remiss—he “neglected the fire” 遺火 and “lacked the proper care” 失檢 in putting out the fire before falling asleep. Liu Er was thus found guilty of losing control of a fire with the result that a person died (Xue, [1905] 1970: A. 382.00) and sentenced to 100 blows of the heavy bamboo. Such a crime, though not committed intentionally, arose out of carelessness rather than sheer uncontrollable accident or even low-level negligence, and as such the law imputed more serious blame to the offender.

An additional case comes from Ba county, Sichuan in 1864, where a young man named Chen Lunfu was found guilty of neglecting a fire in the house of his master, Wang Xingshun (Baxian dang’an: 1467). The fire eventually raged out of control, destroying not only Wang Xingshun’s shop but also a number of warehouses and homes on the same street. Most residents escaped, but two men residing with Wang’s neighbor were trapped in the fire and burned to death. For his neglect of the fire and the deaths that resulted, Chen was sentenced to whipping 鞭 and three months in the cangue.

Finally, we have two cases from 1815. In the first case, from Jiangsu, Wang Liu was galloping a horse in the city and plowed down an elderly man who had just entered the street from a side alley (Xing’an huilan, 1886: 33.27a). Wang Liu had called out a warning, but much as in the case of Lu Yongtai above, the elderly man was deaf and did not hear him. However unlike the case of Lu Yongtai, this was no runaway horse or runaway horse cart. This was a man who was knowingly galloping down an urban street. This was clearly a case of “Killing with a Cart or Horse” (Xue, [1905] 1970: A. 296.00), in which a rider gallops his horse within the city walls, an act the code considered inherently dangerous and easily capable of causing harm. In a similar case from Heilongjiang, this time involving the death of a five-year-old child, the Board of Punishments described the actions of the perpetrator, Ji Changchun, as “careless, and moreover not ‘that which the ears and eyes do not reach, that which contemplation does not attain’” (Xing’an huilan, 1886: 33.27a). Ji’s actions clearly exceeded the bounds of guoshi killing, and thus he, too, was sentenced in accordance with the law for “Killing or Injuring with a Cart or Horse.” Both men received a punishment of 100 blows of the heavy bamboo and exile to 3,000 li.

All of these cases reflect crimes that carried a variety of sentences that were more severe than the fine assessed to guoshi perpetrators. These crimes incurred a higher degree of blame, but nothing serious enough to mandate a capital sentence. The multiplicity of these offenses and their increasingly serious punishments show that degrees of intent under Qing law ran along a complexly graded continuum.

Killing at Play

The statute on killing at play also occupied the conceptual gray area between intent and accident in Qing homicide law. Though not a crime of intentional killing or intentional harm, it incurred a higher degree of responsibility (and thus a more serious punishment) than guoshi killing and the homicides-by-negligence discussed above. This crime occupied the category of criminal recklessness, involving an awareness on the part of the offender that his actions could cause harm to others and a “willful disregard” for that risk (LaFave, 2000: 249). ⁹ The increased seriousness of killing at play over guoshi and mid-level negligence crimes was reflected in its punishment—a non-redeemable death sentence.

The crime of killing at play, xisha 戲殺, was described in Article 292 of the Qing Code as “doing something capable of killing someone when playing, such as boxing or fencing” 以堪殺人之事為戲如比較拳棒之類 (Xue, [1905] 1970: A. 292.00; modified from Great Qing Code, 1994: 278). An entry in the Mulingshu provided a similar definition: “If a situation arose from mutual blows in a contest and death resulted thereby, that is called xisha” (Mulingshu, 1848: 14.1a). These pithy definitions appeared to limit the scope of this particular law to dangerous sparring. However, the Board of Punishments elaborated on the definition in 1811, noting that killing at play could occur when “hands, feet and other objects such as metal blades, all of which can kill people, are then used in play” (Xing’an huilan, 1886: 31.53b). Such a broad definition in effect classified one’s own appendages as deadly weapons, giving killing at play an extremely broad scope. Such a definition infused an unwritten notion of recklessness into the law: play was inherently dangerous; those who engaged in behavior that was capable of harm, or used their bodies in ways that were capable of harm, should be aware of the potential danger. If the actors carried out these dangerous activities and thereby caused a person’s death, they would be punished with delayed strangulation.

In addition to the initial killing-at-play provision, the subsequent section of the statute described additional circumstances considered “equivalent to killing at play” 與戲殺相等. Those were:

For example, knowing that the ford in a river is deep and muddy but falsely claiming that it is even and shallow, or that a bridge or ferry boat is rotten and leaky and not capable of getting people across and falsely claiming that it is firm, and by deceit causing people to cross, and as a result a person falls in and drowns or is injured, this is equivalent to killing at play. (Xue, [1905] 1970: A. 292.00/B; modified from Great Qing Code, 1994: 278)

Since these situations were “equivalent to killing at play,” they merited the same sentence of delayed strangulation. The circumstances described in this second section of the law, however, were more serious than simple killing in the course of roughhousing. They involved both awareness of imminent (not just potential) danger as well as willful deceit. This was malicious trickery, wherein the criminal foresaw a risk and consciously chose to disregard that risk. ¹⁰

The term “killing at play” had originated in the Tang Code, where it was a graded offense (Morohashi, 1992: 11681.54). The Tang Code defined the first and lowest grade of killing at play as “agreeing to a game where strength is used in a friendly way, but death results” (Johnson, 1997: 382). The commentary later called this “play fighting” 戲鬥 (Tanglü shuyi, 1996: 288). For this crime, the standard homicide punishment of strangulation was reduced two degrees to a sentence of penal servitude. The second grade of killing at play involved riskier recreation wherein it was agreed “to use knives, or to ascend to a dangerous height, or to be on the brink of treading on thin ice or entering the water; since they are in a dangerous spot, they must warn one another” (Tanglü shuyi, 1996: 288; modified from Johnson, 1997: 382). If no warning was given and a person was killed, the standard homicide punishment was reduced by only one degree to a sentence of life exile. The third and highest grade, “causing death or injury through deception” 詐陷人之死 (Tanglü shuyi, 1996: 321; modified from Johnson, 1997: 451), was the same as what Qing law called “equivalent to killing at play” (Xue, [1905] 1970: A. 292.00, quoted above). This article was not classified under the homicide statutes in the Tang Code, but was instead found under the chapter on “Fraud and Counterfeit” (Johnson, 1997: chap. 25). Those convicted during the Tang dynasty under this law received the standard homicide punishment with no reductions and no redemption; thus, strangulation (Tanglü shuyi, 1996: 264).

However, this tripartite gradation in punishments was amended with the addition of a clause in the killing-at-play statute that permitted, for the first two grades of killing at play, redemption of punishment according to the accidental killing laws 依過失法收贖 (Tanglü shuyi, 1996: 288). ¹¹ Thus the first two grades of killing at play, both play fighting and its riskier version, were assigned the same punishment and were in effect collapsed into one grade. Furthermore, since under Tang law all guoshi homicides were allowed monetary redemption, ¹² Tang law provided the same punishment for guoshi homicides and killing at play. The rationale was provided in the commentary: criminal intent was absent in all cases. The third grade of killing at play discussed above was set apart from the other killing-at-play provisions by its punishment—since no redemption was allowed under this statute, a higher degree of culpability was assigned.

By the Ming dynasty, however, a higher degree of blame and a more developed discussion of intent had entered the law for the general killing-at-play offenses. In the Ming, the death-by-deception statute of the Tang Code was classified for the first time under the killing-at-play article, and also for the first time both regular killing at play and death by fraud and deception merited the same punishment. No longer were killing-at-play crimes viewed in the same light as guoshi ones. Killing at play had entered the realm of more blameworthy homicides, as shown by the fact that it was now punished with the non-redeemable sentence of delayed strangulation. As a result, we now find the codes comparing killing at play with the more serious—from the point of view of intent—homicide category of killing in an affray (Wallacher, 1983: 279). For example, one Ming-era commentary to the Ming Code noted that “although play 戲 is not the same as fighting . . . nonetheless the killing or injury really was because one laid blows. Therefore, use the killing or injuring in an affray law to sentence” (Da Ming lü jijie fuli, [1908] 1989: 19.24a). ¹³ In addition, we find discussions of the potential degree of intent associated with such a crime. Another Ming-era commentary on the code, the Da Ming lü fuli jianshi, explained the term “xisha” as

allowing an exchange of blows vying in a contest to win or lose. During the Jin, this was called consenting to hurt one another: knowing that [one’s acts] were enough to cause harm and agreeing to [commit] the acts. Therefore, any death or injury does not not arise out of intent 非出于不意. (Xue, [1905] 1998: 490)

Although the Qing Board of Punishments noted in 1817 that killing at play and guoshi killing “both lack the intent to harm” 皆無害人之心 (Xing’an huilan, 1886: 31.55a), the Qing Code continued to mandate a non-redeemable sentence of delayed strangulation for all varieties of killing at play. And it was in legitimizing the gap in the severity of punishment between xisha crimes and guoshi homicides—the difference between the death penalty and a fine—that the court was able to emphasize and articulate the conceptual difference between the two categories: “In the adjudication of cases, we cannot allow killing at play and guoshi killing to be dragged into confusion” (Xing’an huilan, 1886: 31.55b). The Board did so by explaining that

if there is no jesting situation with the person, and accidentally a person is killed, [such a situation] really is that which the ears and eyes do not reach, that which contemplation does not attain, and [such a homicide] is called guoshi. (Xing’an huilan, 1886: 31.53n)

Conversely, the Board considered death due to play a crime which the perpetrator could have foreseen: “play, then, is something the ears and eyes and contemplation have already given attention to. . . . Killing a person could have been reckoned upon” (Xing’an huilan, 1886: 31.53b). Elsewhere, the Board commented that “most of the killing-at-play cases involve vying to see who is stronger. Such actions can bring about injury; there is not a lack of knowledge [on the part of the offenders about that possibility]” (Xing’an huilan, 1886: 31.47b). In the eyes of the law, roughhousing was inherently dangerous, and any person who chose to participate would be held accountable for the consequences.

By punishing the unintentional crime of killing at play, and underscoring its conceptual difference from accidental killing, Qing law emphasized not only that there was a gray area between intent and accident but also that there were multiple shades of responsibility between those two poles. Granted, crimes of killing at play were committed in the absence of intent to harm, but so were crimes of guoshi killing. And there was a difference in culpability between guoshi killing and killing at play, be the guoshi killing one of accident or low-level negligence. This point was reinforced by the fact that the xisha statute was home to the intent-hued homicide category of death by deception.

Evidence from local-level Qing dynasty homicide cases indicates that the majority of cases adjudicated under the killing-at-play statute were concerned with one of two issues: whether the situation was one of play or guoshi, and whether the situation was one of play or affray. The former concern is illustrated in an 1810 case forwarded to the Board of Punishments by the Shaanxi governor concerning Shi Guangde, who injured and killed Song Lisheng while the two men were cavorting about and wrestling (Xing’an huilan, 1886: 31.56a). The provincial court, quoting the guoshi homicide law, declared the death “truly what contemplation cannot attain,” and ruled it a guoshi killing. The Board of Punishments disagreed, overturning this ruling in favor of a killing-at-play verdict, saying that the roughhousing “certainly was not ‘that which the ears and eyes do not reach’. . . and similarly not ‘that which contemplation does not attain.’” Instead, the court ruled, “it matches exactly the laws on killing at play.”

Clearly, Shi Guangde did not intend to harm Song Lisheng, but was instead engaged in good-natured roughhousing with the victim. However, the danger of such roughhousing, as spelled out in the law, was something that Shi Guangde could have, and should have, known. By his willing participation in an activity that posed such a clear hazard to others, Shi Guangde automatically satisfied the requirements for conviction under the killing-at-play laws, and bore a higher degree of blame and responsibility for the death than that accorded under the accidental homicide laws. ¹⁴

Frequently, however, the point of confusion in death-by-play cases had nothing to do with the issue of accident or low-level negligence, but was instead concerned with the possibility of non-congenial fighting and assault, in other words the difference between killing at play and killing in an affray. An example is found in a case from 1804, when the body of a John Doe was discovered slumped on the ground just north of the Dongsi Arch in Beijing (Xianshen anjian: Jiangsu 9409). Soon after the body was found, a man named Fang Zhigang identified it as that of his brother, Fang Da, who had worked as an assistant in the barbershop of Sun Cheng in the same neighborhood as the arch. In addition to working for Sun Cheng, Fang Da lived at his home along with another shop assistant named You Da and a street patrolman 看街兵 named Jin Liu. Sun Cheng told the court that after breakfast on the day he went missing, Fang Da complained of pains in the abdomen and then took the day off. Sun Cheng assumed that Fang Da had been assaulted sometime later. The autopsy report indicated that Fang Da died sometime between nine o’clock and eleven o’clock in the morning, and listed the cause of death as “internal injuries to the upper abdomen.” The court, in discussing the evidence, doubted that a fatal assault could take place in broad daylight in a public place without being noticed. The court reasoned: if Fang Da died so soon after he departed the shop, and if his body was found so close to the shop, wouldn’t it make the most sense if he had been injured in the shop? Both Jin Liu and You Da were brought in for interrogation. Jin Liu testified:

I and the other shop assistants, Fang Da and You Da, when [we] woke up in the morning, Fang Da would make wisecracks, like that I was a son-of-a-bitch. I also ridiculed [him]. It was always this kind of “Are you scolding me?” talk in the morning when we got up. I went to enter Fang Da’s bunk and grabbed up his thumbs and pushed forward. Fang Da tried to get up but was unsteady . . . and pulled me down so that I fell on top of him. In trying to struggle free, [I] kneed him in the abdomen. Then we both let go and clambered up out of the bed, still exchanging a few jokes. You Da saw it all.

You Da confirmed this tale in his own testimony, and both he and Sun Cheng averred that there “was no animosity” 並無仇隙 between Jin Liu and the deceased. The court, noting that “at no point had the playing become a fight” 始總並無爭毆情形, used the killing-at-play law to sentence Jin Liu to delayed strangulation.

Because of the circumstances under which Fang Da’s body was discovered, the primary concern of the court in this case was to establish whether the homicide was caused by assault or in the course of play. Once it was established that no ill-will existed between Jin Liu and Fang Da and that the two men had been engaged in roughhousing rather than genuine strife, the appropriate situation had been identified (i.e., play and not affray) and the court could then issue a ruling of killing at play.

A similar case arose in Beijing in 1899 (Xianshen anjian: Zhili 1255). On the day in question, Wu Dexi, a small-scale merchant 做小買賣 from Shuntian prefecture, had gone into town on business. He testified that on his way home that afternoon, he ran into four acquaintances: Tang Yutian, Chen Wenshan, Ji Gui, and En Jian. According to Wu Dexi:

[They] were there tossing around a stone lock. Because I like to practice, I went to play with them. [We] spread out, tossing and catching. A large crowd of onlookers formed a ring around us. I played for two rounds. Just then En Jian threw and I caught the stone lock. When I turned and tossed [it] to Tang Yutian, suddenly an unidentified man came walking from the south. We saw that the situation was not good. At once we called out [for him] to get out of the way. Tang Yutian rushed to catch [the lock] but did not make it and the man did not get out of the way. . . . [It] hit the man right on top of the head.

It could not have turned out much worse for the man. Though the various players went to get help, the victim died the following day. Four days later, a farmer named Yang Chun identified the victim as his son, Yang Niuzi, and told the authorities his son had been sent to Beijing on a shopping errand. According to Yang Chun, “[I] heard rumors that my son had been beaten to death by a group of ten men.” Wu and the others denied that such an assault had taken place, and the coroner confirmed that the victim died after a stone struck him on the head.

Once it was established that no affray had occurred, Wu was sentenced to delayed strangulation according to the laws on killing in the course of play or roughhousing (Xue, [1905] 1970: A. 292.04). His fellow defendants were sentenced to eighty blows of the heavy bamboo according to the article on “doing that which ought not to be done” 不應為 (Xue, [1905] 1970: A. 386.00; Great Qing Code, 1994: 359).

The debates in these last cases reveal that not only was killing at play considered more serious than guoshi killing, but it involved a higher degree of responsibility, a mental element only slightly different from that involved in killing in an affray. In fact, the mental culpability involved in the two crimes was so close that they were assigned the same initial sentence, strangulation after the assizes. The differentiation in severity of punishment, and thus the fine gradation between the two crimes, is revealed when examining what occurred after the initial sentence, and during the standard review process for capital crimes. The death sentence for killing at play would have been commuted to a sentence of exile or penal servitude after the case passed its first Autumn Assizes (Meijer, 1967: 29; Huang, 1991: 182; Xue, [1905] 1970: A. 18.04, A. 411.27). Late imperial law considered killing at play a kind of reckless homicide, only one step down the ladder of criminal responsibility from crimes of intentional harm.

Guoshi in the Republican-era Criminal Codes

The category of guoshi killing survived the transition from Qing to Republican law, but its definition did not survive intact. As we have seen, in Qing law the guoshi statute itself covered not just cases of low-level negligence, but also cases of accidental killing. In addition, select other categories of killing that involved a slightly higher degree of culpability—categories in which the code noted carelessness or lack of proper attention—could be analogized to the guoshi statute.

Beginning with the code of 1912, the term “guoshi” underwent a shift in meaning. Instead of using it to describe situations that were for the most part unforeseeable, as in the Qing, Republican codes used it to describe the exact opposite: a situation that not only could have been, but should have been foreseen. This marked a potentially confusing departure from the Qing dynasty use of the term “guoshi killing.” This change also meant that accidental killings were no longer to be prosecuted. The loss of this category narrowed the scope of punishable acts under Republican law.

The change in the meaning of “guoshi” also meant a change in the codified treatment of negligent killing. While the Qing Code used a multiplicity of statutes to cover crimes of negligence, under Republican law there would be only one statute for such offenses. The graded scale of negligent acts found in late imperial law—from acts with such a minor degree of carelessness that they could be analogized to accidental killing to acts that bordered on recklessness or intent—would be no more. Now all negligent acts were subsumed under one article of the criminal code.

The shift from Qing to Republican conceptions of guoshi and negligence was a murky one, and one made all the more difficult since no definition was provided for the term “guoshi” in its two main appearances in the first Republican-era criminal code, the Provisional Criminal Code of 1912. That code simply read:

Article 13: Unintentional acts will not be punished, with the exception of those committed in negligence (guoshi). (Zhanxing xin xinglü, [1912] 1988: A. 13)

Article 324: Those who kill or injure another through negligence (guoshi) will be punished as follows: 1) if death or serious injury results, a fine of 500 yuan or less; 2) if incapacitation results, a fine of 300 yuan or less; 3) if light injury results, a fine of 100 yuan or less. (Zhanxing xin xinglü, [1912] 1988: A. 324) ¹⁶

Since a precise definition for guoshi was not spelled out in the code, the door was left open in the early years of the Republic for jurists to use the term in the same way it had been used in Qing courts, i.e., to apply the category of guoshi killing to both accidental and low-level negligent homicides. ¹⁷

The legal specialists who composed revised drafts of the Provisional Criminal Code during the 1910s were aware of this problem, and complained that in the 1912 Code, “the scope of [the terms] ‘intention’ 故意 and ‘negligence’ 過失 was never determined” (Xingfa dier ci xiuzheng an, [1918] 1973: A. 19). Noting that countries such as Italy, Russia, Siam, and Switzerland all included individual statutes defining negligence, they proposed that Chinese law do likewise (Xingfa dier ci xiuzheng an, [1918] 1973: A. 19).

In the meantime, jurists had to make do with definitions provided in rulings by the Supreme Court 大理院 (Daliyuan). For example, in 1914 the court issued a ruling explaining the difference between crimes committed with intention and those committed through negligence, noting that negligent acts

lack criminal intent 犯意; however, because attention was not paid a crime was constituted. Therefore [to determine if it is] negligence, the standard is whether or not [the offender] recognized the result of his act. If he knew there would be such a result, and still recklessly 悍然 committed [the act], that cannot be called guoshi. (Guo, 1946: 54)

Therefore, if one realized the possible results of one’s act and still carried it out, then one committed the act and achieved the result on purpose, and thus intentionally. However, if one did not realize the result of one’s act, it was committed in negligence.

The court issued a slightly different definition of guoshi the next year: “To constitute negligence, the requirement is that one did not pay attention to facts of which one could have foreseen. If it was something that could not have been foreseen 不能預知, then there was no way to pay attention, and there cannot be a problem of negligence” (Xingfa zongze, 1944: 58). While the first ruling had described the difference between intention and negligence, the second ruling noted the difference between negligence and pure accident, in effect marking part of the difference between the Qing-era definition of the term guoshi and the new Republican-era definition.

Republican jurists no longer believed that the results (such as death or injury) of an act could serve as the sole grounds for issuing a verdict of criminal responsibility. Thus we find the commentators to the 1918 Draft Criminal Code critiquing the laws of the past wherein, according to the authors, the result 結果 of an act was what mattered most, not the intent (Xingfa dier ci xiuzheng an, [1918] 1973: A. 22). Notions of cosmic imbalances and requital were now absent from the law as guoshi no longer included accidental acts, but instead consisted solely of acts wherein the criminal was found to have been remiss in paying attention. ¹⁸ Modern Western legal codes often use the “reasonable man standard” to explain this notion of negligence: if a reasonable man would have been aware enough or careful enough to prevent the commission of the crime, then the perpetrator must be held negligent (and thus at fault). This standard appeared in some Republican-era negligence cases. ¹⁹

Not until the official promulgation of the Criminal Code of the Republic of China (1928) did a formal definition of guoshi debut in the legal code. Finally the term had a codified article which provided a standard definition for the term:

Article 27: An act is done in negligence when the actor, although not acting intentionally 非故意, but under circumstances when he should have or could have given attention, does not do so 雖非故意但按其情節應注意並能注意而不注意. . . . [Or] although he foresaw that [the act] could occur, firmly believed that it would not occur 雖豫見其能發生而確信其不發生. (Modified from Criminal Code of the Republic of China, 1928: 6)

This article provided, in essence, two possible degrees of negligence. In the first, the actor did not foresee the results of his act, even though he should have. In the second, the actor foresaw what could happen, but believed it would not happen.

This article followed immediately after the article that provided the legal definition of “intention” 故意, defined in part as follows: “An act is done intentionally when the actor, with regard to his act constituting a crime . . . foresaw 豫見 that it would occur, and moreover its occurrence was not contrary to his intentions” (modified from Criminal Code of the Republic of China, 1928: 6). Thus, perpetrators of both negligent and intentional acts could possess foresight that an offense would occur. The difference between the two hinged on whether the actor believed the criminal act would not occur, or did not oppose the occurrence of the act. These definitions brought crimes of negligence and crimes of intention into proximity for the first time.

In the West, the concept of criminal intent (mens rea) usually did not include negligence. As noted by Glanville Williams (1961: 31), “negligence is not necessarily a state of mind; and thus these crimes are best regarded as not requiring mens rea.” Nonetheless, Williams went on to note that negligence

is a kind of legal fault, and in that respect [negligent acts] are akin to crimes requiring mens rea. . . . Responsibility . . . may be incurred by the mere neglect to exercise due caution, where the mind is not actively but negatively or passively at fault. (Williams, 1961: 31, 100)

At the turn of the twentieth century, German jurists argued that the German term used to represent mens rea actually referred more generally to states of guilt, and thus encompassed negligence as well as intent (Fletcher, 1971: 413). So, though negligence by definition implied a lack of intent, it still described a generally culpable state of mind—a state of mind that by all reasonable standards should have taken care not to commit the act.

By the early 1930s Republican legal thinkers were also broaching this issue, since it pertained to differentiating foresight (in the second part of the negligence statute) from criminal intent. An article in the journal Law Review (Falü pinglun) raised several possible theories for interpreting the concept of guoshi. Among these was the notion that guoshi crimes were closely tied with those committed with intent:

[Negligent] acts arise from a person’s intentions; it is only that the results of the act were not foreseen. On this point [negligence] is different from criminal intent 犯意; however as to the recognition of the act, in essence that is no different from [that involved in] criminal intent. (Ping, 1930: 1) ²⁰

In other words, a person who committed a negligence crime and a person who committed a crime of intention both purposefully carried out an act that resulted in harm. In the case of negligence the outcome may not have been desired or foreseen, but the actions themselves were still done willingly or on purpose.

The proximity of negligence and intent in the Republican period illustrates another difference between the Republican definition of guoshi and its meaning under Qing law. In Qing law there was a very clear demarcation between crimes of guoshi and crimes of intent. They were in fact on opposite ends of the intent continuum, with all other categories of homicide in between. There was no need to expend the courts’ time drawing guidelines for how to separate the two categories. So large was the gulf between guoshi killing and intentional killing in the Qing that the issue of confusing the two categories two was never raised, be it in code, commentary, or legal case. Republican law, with its two muddy and ambiguous categories of mental culpability, gave jurists a much harder time.

Republican-era Guoshi Cases

To examine how changes in the scope and definition of the term guoshi played out in practice, we turn to court records of guoshi cases from the Republican period. The guoshi cases that came before the Republican courts can be divided into three categories. First are the cases where the Republican-era guoshi laws were used to sentence criminals for negligent homicides, in accordance with the definition of guoshi provided in the Republican code. Second are cases where the lower courts sentenced people under the guoshi laws for accidental homicides—homicides no longer punished under Republican law—or for other crimes not meeting the definition of negligence under Republican law. When this happened, the higher courts had to reassert the new Republican definition of the term to prevent accidental acts from being punished. Third are cases wherein the courts had difficulties differentiating between negligent homicide and intentional homicide, categories which until 1912 had been discrete conceptual categories at opposite ends of the intent spectrum, but which now, as the only two remaining homicide categories, had become increasingly difficult to differentiate.

Standard Negligence

Cases of standard negligence under Republican law included the kind of offenses often adjudicated as guoshi under Qing law, the low-level negligence guoshi seen in many of the cases discussed in the earlier section on Qing law. A query sent by the Gansu High Court to the Supreme Court in 1920 provides a good example of the proper use of the new guoshi laws (Daliyuan jieshili quanwen, 1931: 1377). The case in question started when a man from Qingyang county, Gansu, left home just before a downpour. According to the case record, his neighbor “noticed through a crack in [the man’s locked] door that [the man’s] cave was flooding. [He] dug a small hole out below the door to let the water out and prevent any further damage.” However, when the man returned home, he blamed the neighbor and the hole the neighbor had dug for all the damage. A dispute arose and the man asked the local militia 保衛團 to become involved. It did, sending several men to investigate, one of them bringing a rifle 來福鎗 along. In the course of the investigations, the rifle-toting militiaman had an altercation with a bystander and ended up pistol-whipping him. As a result the rifle went off, killing the hapless man who had been the original victim of the flooding. The Supreme Court explained that the militiaman ought to be sentenced according to the laws on negligent homicide (Zhanxing xin xinglü, [1912] 1988: A. 324), agreeing with the assessment of the lower court that “[his] intention was only to grab the gun handle to beat [the bystander]” and that he had not intended to fire the gun. Such a ruling would be appropriate given the homicide statutes in effect at the time. The militiaman did not intend to shoot the gun (and was apparently unaware that it was loaded), and thus it was not a crime of intentional killing. He should, however, have been aware of the inherent danger of beating a person with a loaded weapon, and his failure to give proper attention to this danger made him guilty of negligent homicide.

This case would have been considered one of low-level negligence guoshi and sentenced similarly in the Qing. In fact, the circumstances of this case were very similar to those in a case that came before the Board of Punishments in the early 1800s. In the latter case, a man purchased a used gun, unaware that it was still loaded. “When he placed the gun in a fire to burn off some rust, the gun went off,” killing someone (Xing’an huilan, 1886: 31.42b). The offender in this case was sentenced for guoshi killing.

Another example of a case that accorded with the Republican-era guoshi laws is provided in the 1915 Supreme Court trial of An Jiren, a resident of Jianghua county in Hunan who was a member of a small local militia (Daliyuan xingshi panjue quanwen huibian, n.d.: 2663–66). On September 13, 1913, he and two colleagues had just arrested a criminal named Li Shangchu, who was involved in opium crimes. They were heading home when a group of bandits confronted them in an effort to free the prisoner. The bandits achieved their goal. Fighting ensued, during the course of which An Jiren fired a shot. The bullet killed not one of the bandits nor the escaped Li Shangchu, but rather an innocent cattle-herder. The Hunan High Court procurator, who was appealing an earlier ruling, argued that in this case

of course there was no intention 故意 [to kill the cattle-herder], however [An Jiren] did not give the attention that an ordinary person 通常人 ought to give, [and thus he] ought to bear responsibility for . . . guoshi killing.

The Supreme Court, in examining the case, agreed. The court first noted, “In this case the accused of course did not have the intention to kill Li Wang Shi; that goes without saying.” However, despite the turmoil of the situation, it did all take place in broad daylight 百晝 and An Jiren ought to have paid attention, knowing that there was a person by the side of the road 明知道旁有人自應注意. The Supreme Court issued a verdict that punished An Jiren with a fine of 500 yuan in accordance with the negligent homicide laws.

This case, like the one above, accorded with Qing concepts of guoshi negligence. In their rulings on these cases the Republican courts emphasized carelessness or lack of proper attention on the part of the offender, quoting codified definitions of guoshi (“did not give the attention that an ordinary person ought to give”) much as their Qing counterparts had done.

Consider also the May 1929 shooting death of Dong Tingsheng after bandits had fired on the local militia in Lucheng village, Wanping county outside Beijing (Beijing difang fayuan: J65-4: 450-452). Injuries were sustained on both sides, with one bandit fleeing the scene on a bicycle. Six days later the militia heard of another group of bandits nearby and went on patrol. On the southern border of the village a militiaman named Cheng Jintang encountered a man riding by on a bike. Suspecting he was the escaped bicycle-riding bandit 乘車逃脫之逸匪, Cheng ordered the man to dismount. According to Cheng,

I ordered Dong Tingsheng to get off the bike for inspection. He not only did not listen, instead [he] pulled out a handgun and fired at me repeatedly. I just fired three shots in the air. I did not fire at him.

Members of the local militia confirmed his story. However, others called in to give evidence in the case presented a different version of events, and Cheng Jintang’s claims were soon proven to be spurious. First, several people confirmed that Dong Tingsheng was not a bandit, but instead was an employee of a charcoal factory who had been out collecting payments 收取貨款. Then, the court called into question the feasibility of Cheng Jintang’s claim that Dong fired repeatedly as he passed by on the bike. The court noted that based on where the gun was found at the crime scene, it was questionable whether Dong had even been holding the gun when he was shot. In addition, the court identified the make of the gun as a Belgian Seven 比國七. This model was capable of firing only one cartridge at a time, requiring manual removal of the old cartridge and reloading to fire again. The court wondered how Dong Tingsheng could possibly be reloading and firing his gun and still be able to speed his bicycle past on the bumpy 凹凸不平 village roads. Furthermore, the court questioned even Cheng’s story of firing warning shots into the air: if being fired at, wouldn’t he have returned fire immediately? Having thus refuted every part of Cheng’s account, the court made its ruling:

Dong Tingsheng was your typical commoner. He was not a bandit, and as has been noted above, he was not carrying a gun. Moreover, Dong Tingsheng was wearing a blue shirt, and it was not at all like the white one described on the escaped bicycle-riding bandit. . . . Attention ought to have been paid to such matters, and could have been paid . . . but [Cheng] did not pay attention.

Cheng Jintang was found guilty of negligent (guoshi) homicide—he should have known the harm that could result from firing at a person—and this ruling was upheld on appeal to the Hebei High Court.

While a guoshi statute had survived the transition from Qing to Republican law, the host of non-guoshi negligence statutes to be found in Qing law, from killing with a bow and arrow to losing control of a fire, were subsumed with relative ease under the Republican-era guoshi statute. After all, both the Qing guoshi statute and those additional statutes had dealt with crimes of negligence.

Thus the Qing-era statute “Incompetent Physicians Who Kill or Injure,” essentially a statute covering medical malpractice, found a new home under the category of guoshi homicide (Johnson, 1997: 281; Xue, [1905] 1970: A. 297.00). Take, for example, the 1929 case of Chen Qilan, who was brought before the Beijing Municipal Court for his part in the death of his patient, Xiong Xingchi (Beijing difang fayuan: J65-4/377–80). Xiong had come to the doctor for treatment of an infected leg. Chen testified that he did his best to cure the patient: “I reflected on the matter and I did nothing wrong. [Xiong Xingchi] had an infected lump on his upper left leg. The name of this disease is liuzhu 流注. I treated him by making incisions.” Chen went on to argue that Xiong had died not as a result of the operation, but because he caught a cold 感冒 while recovering. The court did not buy Chen’s story. It noted that after his surgery there was uncontrollable bleeding. The court brought in a medical expert from the Beijing German Hospital (Beiping Deguo yiyuan). This doctor, Ke Li Shi, testified that Xiong had been suffering from advanced-stage tuberculosis 進步之肺痨 as well as the “infected swellings,” the latter of which he likely obtained while taking care of his daughter, who was suffering from dysentery 痢疾. The patient bled, the doctor said, “because his blood vessels had been torn, damage caused during the operation.” Another doctor, Dong Ziwen, confirmed that the real illness was in the patient’s lungs and the swellings were a secondary matter.

The Beijing court found Chen guilty of negligent homicide in the course of business (Article 291 of the 1928 Code) and ordered him to pay a fine of 100 yuan. The Hebei High Court changed this sentence to four months in prison, a change upheld by the Supreme Court the following year. In issuing its opinion, the Supreme Court came down harshly on Chen, noting in its official written opinion on the case, “The accused did not investigate the illness [properly], and heedlessly 貿然 cut open the infected lumps, so that the sick man’s blood vessels were irreparably damaged and he died.”

Negligence was also the verdict in a 1941 case from the local court in Chongqing, Sichuan, which replicated the situation covered by the statute on killing with a cart or horse (Article 296.00) during the Qing (Sichuan gaodeng fayuan: 13482, 13484). This case involved a driver named Chai Guitang. On the day in question, according to witnesses, Chai was driving at a “high speed,” and “not paying attention” 不注意 to the road. He struck a five-year-old boy, leaving the boy dead from a gruesome injury to the head. The court found Chai guilty of guoshi homicide in the course of business. This ruling was upheld by the Sichuan High Court:

The appellant made his living as a driver. When driving a truck he ought to pay very close attention to relative distance. . . . And [he] certainly cannot use the huge size of the truck as an excuse for not paying attention. . . . It clearly is negligent killing in the course of business.

Accident, Negligence, or Neither?

Given that the guoshi homicide statute had always included accidental homicides in the past, occasionally during the Republican period a Qing-esque accidental guoshi case would make its way through the local courts, only to be overturned at the provincial or national level. In addition, the consolidation of homicide offenses into the two main categories of negligent and intentional homicide often caused confusion on the part of the courts as to how to adjudicate an offense, leading to mistaken sentences of guoshi.

Sometimes the courts’ quoting of guoshi laws revealed a confusion about which meaning of guoshi was in effect at the time—the Qing definition or the Republican one. Such was the case in a 1914 appeal filed by Chen Hongjiu at the Supreme Court (Daliyuan xingshi panjue quanwen huibian, n.d.: 1721). Chen had served as the sub-prefect 廳同知 in Songtao, Guizhou, during the last years of the Qing. During the turmoil following the fall of the Qing, Chen had fled to Hunan, taking his official seal and some government money with him. Another man, Zhou Lian, had been newly appointed to his post. Eventually Chen returned home, and there followed a major disagreement over who ought to hold the sub-prefectural office. Things escalated and eventually a melee ensued. Knives were wielded, shots rang out, and when the dust cleared two of Zhou Lian’s supporters had been shot and killed while another had sustained fatal stab wounds.

The Guizhou High Court had found Chen Hongjiu guilty of, among other crimes, guoshi killing and injury for the deaths of Zhou Lian’s men. The rationale the High Court provided was that the deaths could not have been foreseen 意料所不及 and thus constituted guoshi homicides, paraphrasing the Qing Code article on guoshi killing. The Supreme Court struck down the ruling, calling it “inappropriate.” The Supreme Court was right—the definition that the High Court was using came from the Qing Code, and not the Provisional Criminal Code in effect at the time of the case. ²¹ If the High Court wanted to call this a case of accidental homicide, then there was no need to sentence Chen Hongjiu for a crime in this matter, since, under Republican law, accidental homicides were no longer to be punished. If Chen was guilty of shooting at the troops on purpose, the statute on intentional killing would come into effect (see below). In either event, the guoshi law could not be used. ²²

Consider also the 1933 trial of two brothers from Shandong, Zhao Shigong and Zhao Shixun, who were proprietors of a shoe store and employers of an apprentice named Wang Kedong (Sifa gongbao: 1935.2.28). On the night of May 8, 1933, a fire started in a bicycle shop and spread to the shoe store, which was located upstairs. While Zhao Shigong made it out the door, Zhao Shixun and the apprentice “jumped out of the [shoe store’s] east window to escape.” During his fall, Wang Kedong sustained a head injury from which he died. Though blame for starting the fire was imputed to another man, Zhao Shigong and Zhao Shixun were found guilty of negligence for failing to take proper care of their apprentice. The Supreme Court overturned this ruling. It noted that the criminal code defined negligence as “failing to exercise the degree of care which he should have and could have exercised” (Criminal Code of the Republic of China, 1928: 6). However, the court ruled that in this case, given the circumstances of the fire, the fact that it was night, and that one of the brothers had chosen the same escape path as Wang Kedong, the brothers had done nothing wrong. Sentencing two men for negligent homicide on the basis of not properly saving a person from a burning building that they themselves were trying to escape would be more likely to appear under the Qing definition of guoshi killing. Under Republican law, this case should have fallen well outside the scope of negligence laws, unless the defendants had done something to start the fire or fan its flames; the Supreme Court corrected the misruling of the lower court and exonerated the defendants.

Consider also the 1928 case of Kuai Desan for the guoshi killing of his neighbor, Gao Li Shi, and her daughter in Pi county, Sichuan (Sichuan gaodeng fayuan: 2232). Gao Li Shi, a mother with a history of suicide attempts, had been sent home to her natal family. On the day she died, she had gotten into an argument with her father’s neighbor, and it escalated. Gao Li Shi sustained a minor wound and went into a rage. Her daughter in tow, she jumped into a nearby river, drowning them both. The local court sentenced Kuai Desan to guoshi killing and ordered him to pay a fine of 500 yuan, 200 yuan to be paid to the court and 300 to Gao Li Shi’s husband. Such a fine constituted the maximum penalty allowed under the law (Zhanxing xin xinglü, [1912] 1988: A. 324). Neither Kuai Desan nor the widower was satisfied with the verdict, and both appealed to the High Court.

On investigation, the High Court found that Kuai Desan had not forced Gao Li Shi to kill herself: “loud voices” may have been heard coming from his home, but Kuai had not pursued Gao Li Shi out the door and had not been there when she jumped into the river; witnesses had testified to this much. In addition, Gao Li Shi’s history of suicide attempts ought to be considered. The court thus ruled: “Gao Li Shi jumping in the river carrying her daughter was suicide 自盡. Kuai Desan was not in any degree responsible, and it cannot be called guoshi.” The court thereby reversed the lower court’s ruling, ordering that any funds paid revert to Kuai Desan. A crime may have been committed, but it did not conform to the definition of guoshi intended in Republican law. Kuai Desan had not been remiss in paying attention to something. Even if he did strike Gao, that constituted a crime of assault, not negligence. ²³ In this case and in others, lower courts encountered problems reconciling the multiplicity of old statutes with the pithy new Republican code. If a homicide was not intentional, the only avenue to justice seemed to be adjudication using the new guoshi laws.

Negligence or Intention?

The question of how to differentiate the new conceptual category of negligent killing from intentional killing presented an additional problem for jurists. As noted in the earlier discussion of the Republican-era legal codes, this problem likely originated in the tricky wording of the articles defining the terms “intentional” and “negligent” (as well as the initial absence of any such definitions in the codes). Part of the intentional homicide article in the 1928 criminal code (Article 26) read: “An act is done intentionally when the actor . . . foresaw 豫見 that it would occur, and moreover its occurrence was not contrary to his intentions” (modified from Criminal Code of the Republic of China, 1928: 6). The definition of the term “negligent” (Article 27) contained the following clause: “An act is done in negligence when the actor, . . . although he foresaw 豫見 that the act could occur, firmly believed that it would not occur” (modified from Criminal Code of the Republic of China, 1928: 6). Since both definitions included the word “foresight,” and because assessing a perpetrator’s state of mind was always a tricky matter, the courts bandied around the term, sometimes ruling an incident intentional and sometimes ruling it negligent. This would never have occurred under Qing law, where guoshi and intentional killing, instead of being neighbors, were placed on opposite sides of the broad spectrum of degrees of intent.

A 1916 Supreme Court response to a query from Jilin province illustrates the Republican courts’ difficulties differentiating the two main homicide categories (Daliyuan jieshili quanwen, 1931: 431). In this instance, according to the court records, “There was enmity between A and B. B was sitting in a ring with C, D, and E. From a crack in the window, A shot at B.” Everyone in the room was injured, though none died. Sentencing A for his crime against B was simple: he had committed attempted murder. Sentencing A for his crime against the rest of the men, however, was more difficult. The lower court presented two relevant opinions on the matter. First, the court suggested that since the men were sitting together in a ring, the possibility of injuring all of the men was “of course something A could have foreseen 豫見.” Thus, he ought to be sentenced for attempted murder of the rest of the men, too. Second, the court suggested that

not only did A not have the intent to kill C, D, and E, he did not have the intent to injure [them]. However, because he was careless to the point that injury resulted 不注意致傷害, he ought to be sentenced in accordance with negligent injury laws.

The intention to harm one of the people in the room would seem adequate grounds to sentence A under intentional (attempted) homicide laws. ²⁴ And since the other injuries were inflicted in the course of an attempted homicide the negligent homicide statute would only seem applicable if it was twisted to apply to the negligent commission of a crime—failing to carry out a crime with enough accuracy. The laws on negligence were not meant to apply to such a situation. The Supreme Court therefore corrected the lower court’s ruling, explaining that it was the issue of “whether or not A had foresight [that would] determine the verdict.” If A had foresight, presumably then he ought to be sentenced according to the first option provided by the court, thus under the standard intentional (attempted) homicide laws. ²⁵

A case forwarded to the Supreme Court from Jiangxi province later that same year also reveals the problems the courts experienced in differentiating negligence from intent. In this case, four men strangled a fifth man and believed they had killed him (Daliyuan jieshili quanwen, 1931: 489). Thereafter, one of their number dumped the body into water to conceal the crime 拋屍滅跡. After the body was discovered, it was revealed that the man had not died from the strangulation but from the drowning. The Jiangxi court asked the Supreme Court for advice as to what exact crime had been committed by the person who had disposed of the body; even though the dumping killed the man, the perpetrator had intended to kill the man at the time of the strangulation, not when he was dumping the body. In the eyes of the Supreme Court in this case, one possible verdict was that in addition to a charge of attempted murder shared with the other three criminals involved in the case, the perpetrator was also guilty of the crime of Article 258: “damaging, abandoning, or stealing human remains” (modified from Provisional Criminal Code of the Republic of China, 1915: 65). Additionally, the Supreme Court ruled that although the perpetrator did not have the intent to kill 殺意 the victim when disposing of what he thought was a corpse, there may have been negligence involved (如有過失,仍應以過失殺論). This again would have been an instance of being negligent in the commission of a crime, rather than negligently acting to cause a crime. The confusion the courts displayed in these cases reveals that the courts clearly found permeable bounds between intentional homicide and negligent homicide.

Qing law had provided situational guidelines to help identify the category of intent involved in a crime. And Qing law possessed a broad, detailed continuum of intent categories. In Republican criminal law, however, there were only two mental categories of criminal culpability. Differentiating clearly between the two was an important matter indeed. After all, the punishment for negligent homicide was merely a maximum fine of 500 yuan until 1928, and thereafter a maximum fine of 1,000 yuan or a maximum period of two years’ imprisonment (Zhanxing xin xinglü, [1912] 1988: A. 324; Criminal Code of the Republic of China, 1928: 79). The punishment for intentional homicide, on the other hand, was between ten years’ imprisonment and death (Zhanxing xin xinglü, [1912] 1988: A. 311; Criminal Code of the Republic of China, 1928: 77). That meant a difference of eight years’ imprisonment between the maximum penalty for guoshi homicide and the minimum penalty for intentional homicide, a rather large disparity in punishment. Given how ambiguous and easily confused the definitions of intention and negligence in the Republican codes were, mistakes were easy, as were miscarriages of justice.