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According to the President of the American Council on Science and Health, Elizabeth M. Whelan, Sc.D., M.P.H., "Cigarette Makers Get Away With Murder," The Detroit News, p 4B (14 March 1993).

Is she correct?

This paper covers some pertinent legal principles.

TOBACCO MURDER:
A LEGAL BRIEF FOR
PROSECUTING TOBACCO PUSHERS:
MERCHANTS OF DEATH

      Outline of Legal Terms and Concepts Cited Herein
    1. "Universal Malice" Defined In Overview Terms
    2. Perception of the Hazard
    3. Evidence That Tobacco Poses A "Universal Malice" Hazard
    4. Fundamental Principles of Law
    5. Legal Principles on Poison
    6. The Safety Duty
    7. "Universal Malice" Elaborated More Deeply
    8. Violation of Duties of Prevention and Aid
    9. Similarity of Murder Offenses in Law
10. The "Taking Victims As They Come Doctrine" Introduced
11. Tobacco Deaths Are Not Unexpected
12. Compliance Is Not An "Objective Impossibility"
13. "Taking Victims As They Come" Elaborated
14. Wrong Is Not Apportioned
15. Denial of Shelter
16. Transferred Intent
17. When Penalties Apply
18. The Decision Belongs To A Jury
19. Reason to Prosecute
20. "Wrongful Death" Damages

1. "Universal Malice" Defined In Overview Terms

"Tobacco alone is predicted to kill a billion people this [21st] century, 10 times the toll it took in the 20th century, if current trends hold," says the Associated Press article, "Tobacco could kill 1B this century," The Detroit News, p 4A (11 July 2006). Details are at "American Cancer Society CEO Urges United States to Do More to Win Global War Against Cancer in Address to National Press Club" (26 June 2006). See also "It's About a Billion Lives" (Univ. of California Center for Tobacco Control, 3 February 2012).

For perspective in, e.g., Ebola context (the virus hyped in late 2014 when a couple deaths occurred in the U.S.), see, e.g, Rachel Rose Jackson, "Ebola may be in the headlines, but tobacco is another killer in Africa" (The Guardian, 16 October 2014) ("another killer pandemic of tremendous significance continues to sweep the African continent relatively unnoticed. Tobacco kills one out of two long term users, or one person every six seconds. At current rates, it is set to kill 1bn globally before 2100 – that’s more than 200,000 times the current number of Ebola deaths. Millions of those who die will be African."

For perspective on the total 20th century killing level, see the Twentieth Century Atlas, "Source List and Detailed Death Tolls for the Primary Megadeaths of the Twentieth Century."

"Tobacco producers are "terrorists", Seffrin tells Israel Cancer Association," The Jerusalem Post (31 March 2005): "All those involved in the production and marketing of tobacco products are 'terrorists', declared Dr John Seffrin [Ph.D.], president of the American Cancer Society and elected president of [the] Geneva-based International Union Against Cancer (UICC)."

“The tobacco industry is the greatest killing organization in the world. The harm done by all the armies in the world combined, will not begin to equal the damage inflicted upon the human race by the combined activity of the cultivators, manufacturers, and distributors of tobacco.”—Dr. Jesse M. Gehman, Smoke Over America (East Aurora, N.Y: The Roycrofters, 1943), p 216. “For decades tobacco companies have killed more Americans than all the armies, terrorists, and criminals combined.”—Ronald H. Numbers, Hillsdale Prof. of the History of Science and Medicine, University of Wisconsin, cited at frontispiece, The Cigarette Century, by Prof. Allan M. Brand (New York: Perseus Books, 2007).

The link with war is astute, "war has always been the great encourager of smoking, and the tragic events [in Germany] of the [Thirty Years War during the] years from 1618 to 1648 [during a Catholic vs Protestant war] gave an enormous impulse to the movement," says Count Egon Corti, Die trockene trunkenheit (1930), translated by Paul England as A History of Smoking, transl. by Paul England (New York: Harcourt, Brace & Co, 1932), p 100.

This was still true 60 years later, in 2003 when “Smoking Causes 4.83 Million Deaths Globally,” says the Center for Substance Abuse Research, in 12 CESAR FAX (Issue #44) 3 November 2003.

Smokers are killed, prematurely killed, dying commonly years before nonsmokers. Male smokers lost an average of 13.2 years of life. Female smokers lose 14.5 years of life.—NVSR 49, No. 3, U.S. Centers for Disease Control (6-26-2001).

“Tobacco companies used to deny that cigarettes killed people. Now [in 2001] they brag about it,” says Ellen Goodman, 31 ASH Smkg & Hlth Rev (#4) p 4 (July-August 2001). Such bragging only occurs in nations with active anti-smoking activism. In Third World Countries without health awareness, pushers obstruct such awareness. See, e.g., Ricardo Sandoval Palos, "Overview: The Tobacco Lobby Goes Global: Cigarette Makers Stage Counterattack in Emerging Markets" (29 November 2010). For examples of pushers' past denials of the tobacco danger, see, e.g., The Stanford Tobacco Advertisement Collection entitled "Not a Cough in a Carload: Images from the Tobacco Industry Campaign to Hide the Hazards of Smoking."

"Tobacco kills nearly six million people each year, of whom more than five million are users and former users and more than 600,000 are non-smokers exposed to second-hand smoke, according to the World Health Organization (May 2012, Fact Sheet # 339).

Showing “unsurpassed arrogance and immorality," says Albert R. Hunt, in “Going into the Tank for Tobacco,” Wall Street Journal, p A15 (2 Aug 2001), pushers at Philip Morris premeditated and said, "Cigarettes kill people, and, if they're dead, the government doesn't have to spend money on health care, housing and pensions." "Premeditation" means "thought of beforehand for any length of time, however short." See Black's Law Dictionary, 6th ed (1990), p 1180. Case law establishes that a timeframe as short as several seconds establishes premeditation. See, e.g., People v Wells, 10 Cal.2d 610, 625; 76 P.2d 493; 1938 Cal. LEXIS 239 (1938).

The view is that smokers' being killed, “saves us [the U.S.] substantial sums in care and support for the elderly and retired population,” says William Kloepfer (Senior Vice President of the Tobacco Institute) in a 31 Oct 1978 Letter (and see full text).

"Tobacco is blamed for five million deaths in the world every year," says "Tobacco control pact in effect" (27 Feb 2005).

"Philip Morris International (PMI) proudly announced its 2nd quarter earnings Thursday morning [18 July 2013]. For most companies, a positive earnings report is a day to celebrate. For PMI, it should be a day of shame, because PMI is in the business of selling the only consumer product that, when used exactly as intended, kills.

Let's get some perspective on PMI's numbers for 2012:

- PMI's Share of the Global Market = 16.3%

- Total Number of Deaths from Tobacco in 2012 = 6 million

(more than 2x the population of Chicago, IL)

- PMI's 2012 Death Toll = 978,000

(more than the population of Austin, TX)

- PMI's 2012 Earnings = $14.2 billion
(more than 100x what the U.S. FDA spent on anti-tobacco campaigns in 2011)

- PMI's Earnings per Death = $14,519.00," says Kimberley Intino, ASH Deputy Director of Development (22 July 2013).

"100,000 Chinese Die Annually from Secondhand Smoke" (31 May 2007). "Second-hand smoke kills 600,000 people a year," by James Fanelli, New York Daily News (27 November 2010). "Second-hand smoke globally kills more than 600,000 people each year, accounting for 1% of all deaths worldwide, according to a new study. The alarming findings - published on Thursday in the British medical journal Lancet - are based on a survey of 192 countries in 2004. Researchers estimated that annually second-hand smoke causes about 379,000 deaths from heart disease, 165,000 deaths from lower respiratory disease, 36,900 deaths from asthma and 21,400 deaths from lung cancer. Children account for about 165,000 of the deaths, according to the researchers. 'This helps us understand the real toll of tobacco.'"

Russia is adversely impacted likewise. Tobacco kills in the millions, to the extreme of population reduction vs. increase. "Russia's population fell from 148.6 million in 1991, the year the Soviet Union collapsed, to 141.9 million in 2011, according to World Bank figures," says the article, "Putin signs law to curb smoking, tobacco sales in Russia" (Reuters, Monday 25 February 2013).

"The World Health Organization [WHO] reports that an estimated 165,000 children die each year because of secondhand tobacco smoke," says Passive Smoking Kills >150,000 Kids/Yr, Including in U.S." (30 November 2010). And, "at least 6.200 children die each year in the U.S. because of their parents' smoking. 'More young children are killed by parental smoking than by all unintentional injuries combined.'"

"Tobacco use killed 100 million people worldwide in the 20th century and could kill one billion people in the 21st unless governments act now to dramatically reduce it, the World Health Organization said in a report Thursday," says Edith M. Lederer, "Tobacco to Kill 1 Billion by 2100" (Time, 7 February 2008).

"You can't smoke a cigarette in a safe way. Cigarettes are the only thing that, if you follow the manufacturers' instructions, are likely to kill you."—Prof. John Wyke, Director, Beatson Institute for Cancer Research, Glasgow, Scotland, cited by ASH, 6 Dec 2000.

"We know tobacco is addictive and kills more Americans than suicide, homicide, AIDS, and most other known illnesses," say Jill M. Williams and Douglas Ziedonis, "Addressing tobacco among individuals with a mental illness or an addiction," 29 Addictive Behaviors 1067-1083 (2004), at p 1077.

The pushers themselves, like any Mafia hitman for hire, study characteristics of their intended targets (see 7 Oct 1985 data by Richard C. Nordine of R. J. Reynolds Tobacco Company. Descriptions of targets can be in derogatory terms, says the article, “Tobacco giants deny 'slobs' slur” (BBC News UK, 18 December 2003).

“Evil is as evil does. I was proud to take part in this operation that makes America safer from those so evil as to prey upon their fellow Americans.”—Ted Nugent, in “When good guys gang up against the bad guys” (Waco Tribune, 25 November 2007). Nugent said, "Every citizen can, and I believe, must, fight for upgrade in our neighborhoods by simply refusing to tolerate anti-American cannibalism and inbreeding by the lowest forms of life amongst us." This involves "confronting such soulless, evil, recidivistic monsters." "The abject filth, decadence, child mistreatment and human rot I witnessed . . . confirmed once again how soulless America's criminal element truly is."

"Lying is as natural to tobacco executives as breathing once was to their customers. Now, a blockbuster report from Massachusetts shows how they have been jacking up the nicotine content of their lethal product, to keep people smoking. That comes on the heels of a devastating federal court decision that labels the tobacco companies for what they always have been: shamelessly dishonest racketeers," says the editorial entitled "Drug pushers," in Newsday (1 September 2006).

Note that "tobacco companies continue to knowingly slaughter their customers, seeking to replace those who die with gullible young substitutes. Conferences on lung cancer . . . would be almost unnecessary if cigarettes, cigars, hookahs and other nicotine "delivery systems" had not been invented," says Judy Siegel-Itzkovich, "Suicide (and murder) by cigarette" Jerusalem Post (25 November 2006).

Pushers kill knowingly, organize their operations accordingly, diversify internationally to do so. See, e.g., the article "Philip Morris International Commences New Plans to Spread Death and Disease," by Robert Weissman (1 April 2008). Pushers research killing methods, see, e.g., "The Sick and Crazy Science Tobacco Companies Pursue to Get You Hooked," by Scott Thill (26 April 2008).

Accordingly, as Silvy Petters and Anna Gilmore note in analyzing how tobacco pushers work to manipulate the policy environment, "Understanding the emergence of the tobacco industry's use of the term tobacco 'harm reduction' in order to inform public health policy," in Tobacco Control (22 January 2014), "Documents suggest British American Tobacco and Philip Morris International adopted the term ‘harm reduction’ . . . then proceeded to heavily emphasise the term in their corporate messaging. . . . Transnational tobacco companies’ harm reduction discourse should be seen as opportunistic tactical adaptation to policy change rather than a genuine commitment to harm reduction."

According to the President of the American Council on Science and Health, Elizabeth M. Whelan, Sc.D., M.P.H., "Cigarette Makers Get Away With Murder," The Detroit News, p 4B (14 March 1993). Jerry Stanecki says "premeditated murder," in "Tobacco is form of terrorism, too," Macomb Daily, p 8C (14 Dec 2001). See also the "Comment on Matt Feazell's Cartoon on Tobacco as Terrorist Weapon" (The Detroit News, p 12S, 5 March 2003).

Tobacco pushers premeditate. They plan the addictiveness for decades, for example, see "Judge Orders Tobacco Firms to Admit Deception" (27 November 2012). “Cigarette companies intentionally designed cigarettes with enough nicotine to create and sustain addiction." Case law establishes that a timeframe as short as several seconds establishes premeditation. See, e.g., People v Wells, 10 Cal.2d 610, 625 (1938).

Some tobacco pushers have gone so far as to attempt to prevent information on the danger reaching the public. Thus, they can maximize the numbers of their killings. Pushers have various methods to maximize their killings.

  • They can offer a bribe. See for example, the article, "Traders Offer Bribe to Stop Anti-Smoking Campaign" (23 April 2008).

  • They can hire academics to re-write history for them. See for example, the article "Day 147. History will be kind to them, for they intend to write it " (23 May 2013).

  • They can create political parties to denounce regulating tobacco pushing. See for example, the article "IRS Sleuths Were on the Right Track: Big Tobacco Created Tea Party in 1994" (22 May 2013): "Big Tobacco not only created the Tea Party, it has promoted it over decades, pumped millions into marketing it, and pulled it out of its magic hat every time it needed to produce an overnight, spontaneous “grassroots” movement."

    • "All evasions, or attempts to evade justice, by a person suspected or charged with crime, are circumstances from which a consciousness of guilt may be inferred, if connected with other criminating facts." Bowles v State, 58 Ala 335, 339 (Dec 1877).

    “In December 1994, [Rep. Marty] Meehan sent a 111-page prosecution memorandum to Attorney General Janet Reno, urging her to appoint a grand jury to investigate possible criminal conduct on the part of the [tobacco] industry,” says Harvard Medical School Prof. Allan M. Brandy, The Cigarette Century (New York: Perseus Books, 2007), p 368. “Meehan . . . suggested that there was . . . evidence that the companies, their executives, and perhaps even their lawyers had violated federal laws over more than three decades. ‘The enormity of the harm perpetrated by tobacco companies and their 369agents on American consumers is difficult to comprehend,’ Meehan wrote. ‘It is apparent, however, that the crimes alleged here, committed over decades have contributed profoundly to the serious illnesses and early death experienced by tens of millions of Americans, as well as literally trillions of dollars in health care costs and lost productivity borne by the economy of this nation and the individual states.’ Among these alleged crimes were perjury, mail fraud, false advertising, deception of the public, deception of federal agencies, and deception of Congress. Meehan also suggested that the DOJ also explore the possibility of criminal violations of the Racketeering Influenced and Corrupt Organizations (RICO) Act,” says Prof. Allan M. Brandy, The Cigarette Century, supra, p 369.

    Are they correct? This paper covers the pertinent legal principles. We start with the facts, e.g., that

  • Early Americans were quite health conscious. This American trait was noticed by the famous French writer, Alexis de Tocqueville, who in 1835, wrote, "In America the passion for physical well-being is general [common]." This unique American trait was still being alluded to now 160+ years later, by William A. Check, PhD, The Mind-Body Connection in Dale C. Garrell, MD, The Encyclopedia of Health: Medical Disorders and Their Treatment (New York: Chelsea House Publishers, 1990).

  • The next year after 1835, in 1836, a blunt health fact was widely circulated to Americans: the fact that doctors deemed it already well-established "that thousands and tens of thousands die of diseases of the lungs generally brought on by tobacco smoking. . . . How is it possible to be otherwise? Tobacco is a poison. A man will die of an infusion of tobacco as of a shot through the head." —Samuel Green, New England Almanack and Farmer's Friend (1836). Americans took heed. Result: Declining U.S. tobacco use, reported by J. B. Neil, 1 The Lancet (#1740) p 23 (3 Jan 1857).

  • Prior to mass advertising by pushers desirous of killing in greater numbers, non-smoking was "common" in the U.S.—Prof. John Hinds, The Use of Tobacco (Nashville, Tenn: Cumberland Presbyterian Publishing House, 1882), p. 10.

  • Also in 1836, a medical survey of nicotine poisoning deaths was published. "Death occurred in nearly all of the cases of nicotine poisoning within a few minutes to a few hours . . . ."—Julia Fontanelle, 2 Jour. de Chimie Med. 652 (1836).

  • By 1851, tobacco was being used for murder (the Bocarmé Case).

  • "The physician must recognize the fact that smoking is a universal affair . . . harmful . . . to normal people. . . . [changing them into injured or dead categories]."—Herbert F. Schwartz, M.D., "Smoking and Tuberculosis," 45 New York State Journal of Medicine (#14) 1539-1542 (15 July 1945).

  • This was true in 2001 when "Tobacco kills 4 million people around the world each year."--Infact at Work, p 8 (Summer 2001).

  • "Over 37 million people (one of every six Americans alive today) will die from cigarette smoking years before they otherwise would," says the U.S. Department of Health, Education and Welfare, National Institute on Drug Abuse (NIDA), book, Research on Smoking Behavior, Research Monograph 17, Publication ADM 78-581, p v (December 1977).

    • Years earlier, the Royal College of Physicians of London, in its book Smoking and Health Now (London: Pitman Medical and Scientific Publishing Co, 1971), p 9, had already declared the smoking-caused death toll a "holocaust" due to the then "annual death toll of some 27,500."

    If 27,500 deaths is a "holocaust"—and it is—the aforesaid 37 million deaths is (in contrast to the Nazi 6 million holocaust), a six fold+ holocaust. That number is above the World War II "crimes against humanity" level for which prosecutions occurred in The Nurnberg Trial, 6 FRD 69 (1946).

    "'Every regular cigarette smoker is injured. . . .

    "Cigarette smoking kills some, makes others lung cripples, gives still others far more than their share of illness and loss of work days.

    "Cigarette smoking is not a gamble; all regular cigarette smokers studied at autopsy show the effects.'" Reference: The FTC Report 1968, cited by A. A. White (Law Prof, Univ of Houston), "Strict Liability of Cigarette Manufacturers and Assumption of Risk," 29 Louisiana Law Rev (#4) 589-625, at 607 n 85 (June 1969).

    Lung cancer at 100% in smokers is one such effect.

    Toxic substances have a potential for wide devastation. Their characteristic structure, size, invisibility, portability, method of operation, and capacity for causing harm are such that as to pose a foreseeable widespread (or "universal") danger. Toxic substances act adversely upon anyone coming within their ambit of life-endangering ability.

    Tobacco smoke contains toxic substances. The legal doctrine of "universal malice" encompasses tobacco, i.e., toxicity "without knowing or caring who may be the victim." Mitchell v State, 60 Ala 26, 30 (1877), cited in Black's Law Dictionary, 4th ed. (St. Paul, West Pub Co, 1968), p 1110. Deaths foreseeably result as "natural and probable consequences" of toxic chemicals, here, cigarettes' toxic chemicals.

    In situations of "universal malice," a legal doctrine of particular relevance based upon the foreseeable widespread or ("universal malice") consequences of tobacco use, harm is foreseeable to many more than merely one individual. Of course, in law, even one wrongful incident is one too many. "If no one else" but one person is harmed, "that is so much of loss fortunately saved to respondent," DeMarco v United States, 204 F Supp 290, 292 (ED NY, 1962). The court was rejecting the claim that guilt should be deemed less, as only one person was killed! No, it's not less guilt, just fewer victims re which to penalize the accused!! DeMarco was cited as relevant to smoking in a second-hand smoke involuntary smoking case, Smith v Western Electric Co, 643 SW2d 10, 13 (Mo App, 1982) (case of a nonsmoker objecting to being forced to smoke, who sought court injunction like that of Donna Shimp's in 1976).

    The "universal malice" doctrine especially applies as cigarettes are inherently dangerous. Banzhaf v Federal Communications Commission, 132 US App DC 14, 29; 405 F2d 1082, 1097 (1968) cert den 396 US 842 (1969). The Department of Health and Human Services (DHHS), Reducing the Health Consequences of Smoking: 25 Years of Progress: a Report of the Surgeon General, Publication CDC 89-8411, Table 7, pp 86-87 (1989), lists examples of deleterious ingredients including but not limited to:

    acetaldehyde (1.4+ mg)arsenic (500+ ng)benzo(a)pyrene (.1+ ng)
    cadmium (1,300+ ng)crotonaldehyde (.2+ µg)chromium (1,000+ ng)
    ethylcarbamate 310+ ng)formaldehyde (1.6+ µg)hydrazine (14+ ng)
    lead (8+ µg)nickel (2,000+ ng)radioactive polonium (.2+ Pci)

    Judicial notice of cigarettes' "inherent" deleteriousness was taken long ago, pursuant to an 1897 Tennessee law banning cigarettes, in Austin v State, 101 Tenn 563; 566-7; 48 SW 305, 306; 70 Am St Rep 703 (1898) affirmed 179 US 343 (1900). Tennessee was scared of cigarettes as they are a dangerous Confederate product, from people who had a long record of hatred of America. The Michigan law banning cigarettes with deleterious ingredients, MCL § 750.27, MSA § 28.216, was passed soon thereafter, in 1909.

    A second aspect in cigarettes' "universal malice" is that due to their inherently deleterious nature and ingredients, they, when lit, emit deleterious emissions. Re the enormous quantities, the pertinent legal adjective is "ultrahazardous." The Department of Health, Education and Welfare (DHEW), Smoking and Health: Report of the Advisory Committee to the Surgeon General of the Public Health Service, PHS Pub 1103, Table 4, p 60 (1964), lists examples of deleterious emissions compared to the chemicals' "speed limits" (official term, "Threshold Limit Values" - TLV's) (in 29 CFR § 1910.1000, available at your local library), including but not limited to:

    Cigarette ChemicalEmission
    TLV
    acetaldehyde 3,200 ppm 200.0 ppm
    acrolein 150 ppm     0.5 ppm
    ammonia 300 ppm 150.0 ppm
    carbon monoxide 42,000 ppm 100.0 ppm
    formaldehyde 30 ppm     5.0 ppm
    hydrogen cyanide 1,600 ppm   10.0 ppm
    hydrogen sulfide 40 ppm   20.0 ppm
    methyl chloride 1,200 ppm 100.0 ppm
    nitrogen dioxide 250 ppm     5.0 ppm

    It is because cigarettes' emissions vastly exceed the "speed limits" (TLV's) that they are dangerous and so fatal, so "ultrahazardous," as to kill tens of millions of people. If cigarettes' toxic chemicals were under the "speed limits" (TLV's), they'd be safe! Example: The "speed limit" (TLV) for carbon monoxide is about 100, whereas it's doing 42,000.

    The Michigan law banning cigarettes with deleterious ingredients, MCL § 750.27, MSA § 28.216, is intended to prevent "universal malice," i.e., cigarettes with dangerous ingredients!! Only safe cigarettes, if any, can legally be manufactured, given away, and sold in Michigan. No dangerous cigarettes allowed!

    "The modern tendency is to hold corporations criminally responsible for their acts. A corporation may also be held liable for crimes based on the failure to act."—Ronald A. Anderson and Walter A. Kempf, Business Law - Principles and Cases (Cincinnati: Smith-Western Pub Co, 1967), p 53.
    "Von Clausewitz said that war is the logical extension of diplomacy." "Verdoux feels that murder is the logical extension of business." "It's all business. One murder makes a villain. Millions, a hero. Numbers sanctify. . . ." Quotes from Charlie Chaplin, Review of Monsieur Verdoux [transl. "A Comedy of Murders"] (1947).
    See also Jeffrey Clements, J.D., "The Real History of 'Corporate Personhood': Meet the Man to Blame for Corporations Having More Rights Than You": "The real history of today's excessive corporate power starts with a tobacco lawyer appointed to the Supreme Court" (6 December 2011).

    Holding cigarette manufacturers criminally responsible is especially apt as it is entirely the manufacturers who are responsible for the manufacturing process including any additives and nicotine manipulation pursuant to extensive, protracted research on doing that.
  • If no cigarettes were manufactured commercially, few if any people would be willing and able to prepare the ground, plant, care for, and grow their own tobacco plants, research the process of refinement and additives, including coumarin, develop and insert those additives, harvest and cure the tobacco, package it, etc.

  • Cigarettes are the end product of a vast and extended "universal malice" planned, intended, manufacturing process.

    • Former Michigan Governor John Engler and his staff were supportive and trying to halt cigarette smuggling, issuing five memoranda on the subject:

    Exec Order 1992-3 Law Support Letter # 1 Anti-Cigarette Smuggling Finding Law Support Letter # 2 Governor's Overview

    Cigarettes as per their "universal malice" characteristics, foreseeably kill when used as the manufacturer intends and designs. Foreseeable deaths are, in law, not "accidental." Such recurring deaths are instead, in law, "natural and probable consequences." Anticpated consequences are, in law, deemed intentional, meaning premeditated. Standard law against premeditated killings provides for criminal charges resulting in prison or even capital punishment.

    Pushers target children. Children have long been targeted (see physiology reason, adults' typically not starting, then examples 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10). See pushers' own analysis #1 and #2. Note also the ongoing effort to protect children from this, at the joechemo.org educational site. There have been many illegal tobacco sales to minors. Both the sellers and professional analysts recognize that adult smokers would typically not be smoking if they had not been illegally solicited or obtained while they were children.

    "If you are really and truly not going to sell to children, you are going to be out of business in 30 years."--Bennett LeBow, Tobacco CEO, quoted by Georgina Lovell, You Are the Target: Big Tobacco: Lies, Scams-Now the Truth (Vancouver, B.C: Chryan Communications, 2002).
    See the Food and Drug Administration (FDA) rule entitled "Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco to Protect Children and Adolescents." 61 Fed Reg 44,396 (28 Aug 1996) (resulting rule codified at 21 CFR § 801, et al.).
    The FDA found that "cigarette and smokeless tobacco use begins almost exclusively in childhood and adolescence." 61 Fed Reg 45239.
    Minors are particularly vulnerable to Madison Avenue's exhortations, plastered on racing cars and outfield fences, to be cool and smoke, be manly and chew, and the FDA found "compelling evidence that promotional campaigns can be extremely effective in attracting young people to tobacco products." Id. at 45247.
    The pushers engage in fraud, even denying that nicotine is addictive!
    Pushers premeditate to resist pro-health actions and laws, see, for example, this article, "Australia challenges Ukraine on tobacco" (3 September 2012). In the challenge, "a Philip Morris International subsidiary" is via the Ukraine challenging "Australia's plain cigarette packaging rules."

    "The one issue that needs to be pounded on EVERY DAY is the Tobacco Holocaust. It's just not possible to overemphasize the magnitude of this Holocaust which is at least 25 times the high estimates of the Jewish Holocaust. Nothing even comes close to the horrors of this Corporate/Gov't. Genocide. Death from Tobacco has never been shown on TV or most other Media, even though all other causes of death are routinely shown in graphic detail, and novel causes are always featured in the Media," says Steve Davis, "The Tobacco Holocaust" (6 June 2005).

    Here is a fundamental essential element of illegality rendering the total package of cigarette manufacturing and sales illegal. (For verifying of long-term targeting youth, see, e.g., Excerpt of Confirmatory 1882 Narrative and 1915 Narrative). 'Once hooked, always hooked.' Sadly, that's the norm; and the reason pushers target children.

    Pushers have in essence treated children as slaves were treated before the Civil War, treated as though "they had no rights which the white man [often tobacco farmers] was bound to respect," Dred Scott v Sandford, 60 US 393, 407; 15 L Ed 591, 701 (1857).

    2. Perception of the Hazard

    No pusher ignorance defense is allowed. It is well-established that tobacco has a natural, probable, and foreseeable consequence of death. Toxic substances such as tobacco smoke contains are "poison."

    Examples of the Many
    Writings on Tobacco Dangers
    Rush (1798) Fowler (1833) Alcott (1836)
    Lane (1845) Burdell (1848) Lizars (1859)
    Trask (1860) Lizars (1862) Parton (1868)
    Chase (1878) Jackson (1879) Witter (1881)
    Hinds (1882) Lander (1882) Livermore (1882)
    Carpenter (1882) Wight (1889) Slocum (1909)
    Ford (1914) Fink (1915) Higley (1916)
    Kellogg (1922) Macfadden (1924) Brown (1925)

    Beyond Individual Danger,
    Danger to Nations As a Whole
    Analyses go beyond the immediate personal level danger. See, e.g.,
    James Parton (1868)
    Dr. John Lizars (1859),
    Rev. John Wight (1889),
    Dr. Charles Slocum (1909),
    Prof. Bruce Fink (1915), and a
    related medical history overview.
    Analyses extend beyond the personal level to cover national data, e.g., the pattern of the smoking link to national downfalls dating from the Spanish conquistadores' conquest of Mexico [1519].

    See their national-impact examples:

  • Turkey,
  • Spain, and
  • Portugal and other nations.

    • In sum, the record of tobacco hazards goes back centuries! The hazard is well-established such that, as a matter of law, there can be no "failure to perceive it," as one perpetrator alleged. "Buyer beware" is not the law; manufacturers and retailers must make truthful disclosure, Bishop v Strout Realty, 182 F2d 503 (CA 4, 1950).

    As manufacturers and retailers are required to know what they are doing(!) (that is "the standard of care"), if they make an ignorance defense, that is itself a violation! Any alleged ignorance, "failure to perceive" a hazard (i.e., an ignorance defense) itself "constitutes a gross deviation from the standard of care . . . " Dillon v State, 574 SW2d 92, 94 (Tex Cr App, 1978).

  • Ignorantia eorum quæ quis scire tenetur non excusat; ignorance of those things which one is bound to know excuses not.
  • Ignorantia juris quod quisque tenetur scire, neminem excusat; ignorance of the [or a] law, which every one is bound to know, excuses no man.
  • Ignorantia legis neminem excusat; ignorance of law excuses no one.
  • Ignorantia juris non excusat; ignorance of the law excuses not.
    Reason: Ignorare legis est lata culpa; to be ignorant of the law is gross neglect — five Latin sayings to the same effect, it [no 'ignorance defense' allowed] is such a well established concept.

    • Subjecting people to a foreseeable hazard is unlawful. This is well-established under several principles of law, e.g., the general protective law for the population, e.g., 18 USC § 1111 (the federal murder ban).

    Some additional laws are tailored to selected elements of the population, e.g., 5 USC § 7902.(d) (the federal workers safety act), and 29 USC § 651 - § 678 (the Occupational Safety and Health Act). It is well-established that, under the latter, employers are required to assure that everyone in the workplace, including workers, behave and function in a safe manner. Workplaces are to be "free of a hazard." The word "free" is an adjective describing what workplaces must be in terms of safety hazards, "free" of them.

    What does the word "free" mean in this context? The safety duty  "adjective is unqualified and absolute," and a hazard "is known taking into account the standard of knowledge in the industry" (not one's actual or alleged personal knowledge or lack thereof).

    The safety duty "adjective" ("'free' of a hazard'") "is unqualified and absolute: A workplace cannot be just "reasonably free' of a hazard." National Realty & Construction Co, Inc v Occupational Safety and Health Review Commission (OSHRC), 160 US App DC 133, 141; 489 F2d 1257, 1265 (1973). Tobacco smoking on the job involves an appreciable amount of time, which in turn promotes at-home smoking--thus substantially increasing exposure to cigarettes' hazardous toxic chemicals. Such matters are known taking into account the standard of knowledge.

    Many years ago, already, "the detrimental effects of cigarette smoking on health are beyond controversy." Larus & Brother Co v Federal Communications Commission, 447 F2d 876, 880 (CA 4, 1971). The District of Columbia Circuit Court had already found that cigarettes

    "pose . . . a danger to life itself , . . . a danger inherent in the normal use of the product, not one merely associated with its abuse or dependent on intervening fortuitous events." Banzhaf v Federal Communications Commission, 132 US App DC 14, 29; 405 F2d 1082, 1097; 78 P.U.R.3d 87; 1 Media L. Rep. 2037 (1968) cert den 396 US 842; 90 S Ct 50; 24 L Ed 2d 93 (1969).

    The Tennessee Supreme Court had, 70 years previously, found that cigarettes are

    "wholly noxious and deleterious to health. . . always harmful; never beneficial . . . inherently bad, and bad only . . . . There is no proof in the record as to the character of cigarettes, yet their character is so well and so generally known to be that stated above, that the courts are authorized to take judicial cognizance of the fact. No particular proof is required in regard to those facts which, by human observation and experience, have become well and generally known to be true." Austin v State, 101 Tenn 563, 566; 48 SW 305, 306; 70 Am St Rep 703 (1898) affirmed sub nom Austin v Tennessee, 179 US 343; 21 S Ct 132; 45 L Ed 224 (1900).

    Other judicial documentations of the hazard to smokers include, e.g., Pritchard v Liggett & Myers Tobacco Co, 295 F2d 292, 300 (CA 3, 1961); Green v American Tobacco Co, 154 So 2d 169 (Fla, 1963); R. J. Reynolds Tobacco Co v Hudson, 314 F2d 776 (CA 5, 1963): smokers' rights cases on injury from dangerous tobacco; and related U.S. federal circuit court cases.

    Pro-tobaccoists recognize that there are consequences from dissemination of information on the tobacco danger--informed people choose not to be poisoned!! So they have tried to stop that information flow, to censor it, by suing to ban it from even being broadcast! Fortunately, they lost, Robinson v American Broadcasting Cos., 328 F Supp 421 (ED Ky, 1970), aff'd 441 F2d 1396 (CA 6, 1971). So that little information that is broadcast, is at least allowed! The pro-tobacco censorship effort to stop the information flow on smoking as a hazard was fortunately rejected on two grounds: the "unclean hands" of the requesters, and the freedom of expression rights that Americans have. Pro-tobaccoists clearly perceive the hazard, and want their intended targets, not to know!! But tobacco lobby censorship of the hazard has succeeded:

    "Most smokers do not view themselves at increased risk of heart disease or cancer." John P. Ayanian, M.D., M.P.P., and Paul J. Cleary, Ph.D., "Perceived Risks of Heart Disease and Cancer Among Cigarette Smokers," 281 J Am Med Ass'n (11) 1019-1021 (17 March 1999). See also the 11 January 1999 Testimony of Dr. Whelan, and key quote: "smokers never, even today, have sufficient information to make a decision about smoking."

    Keeping the target ignorant of the danger he is in, is a classic murderer tactic. "The act of smoking becomes a source of peril . . . in effect . . . malice and any fatality resulting . . . may be potential murder." Gladieux Food Services, Inc v Int'l Ass'n of Machinist and Aerospace Workers, 70 Lab Arb 544, 547 (1978), cited with approval in USM Corp, Bostik West Div v Oil, Chemical and Atomic Workers Int'l Union, 78-2 ARB 8545; 71 Lab Arb 954, 958 (1978).

    "Cigarette Makers Get Away With Murder," says Elizabeth M. Whelan, Sc.D., The Detroit News, p 4B (14 March 1993). ("[C]igarette-smoke puffed [into others' breathing zone with resultant death] should be considered murder in the first degree," per Meta Lander, The Tobacco Problem (Boston: Lee and Shepard, 1882), p 209. This is especially true with smokers, suffering from tobacco-induced acalculia (impaired math ability), hence unable to comprehend and act on the danger that the cigarette emissions far exceeding the above-cited limits pose.

    The fact that resultant death is slow does not vitiate the de jure recognition of the hazard. People v Stevenson, 416 Mich 383; 331 NW2d 143, 145-6 (1982), concept upheld, Rogers v Tennessee, 992 SW2d 393 (Tenn, 1999), affirmed by U.S. Supreme Court Case # 99-6218; 532 US 451; 121 S Ct 1693; 149 L Ed 2d 697 (14 May 2001). The fact that death is slow does not detract from the person's having been a crime victim; prosecution for murder is appropriate and warranted no matter how long delayed the death is; the medieval "year and a day" rule to the contrary lacks medical validity.

    “Quod ab initio non valet in tractu temporis non convalescet. That which is bad in its commencement improves not by lapse of time. Quod initio non valet, tractu temporis non valet. A thing void in the beginning does not become valid by lapse of time.”—Black's Law Dictionary (5th ed, 1979), pp 1126-1127.

    "When you set in motion a chain of events, a perpetrator of a crime is responsible for every single thing that follows from that chain of events no matter how distant," says Philadelphia District Attorney Lynne Abraham. This was in context of filing murder charges 41 years later, against William J. Barnes in 2007 for a shooting in 1966 of Walter T. Barclay, who died of the effects in 2007. See Joann Loviglio, "New charges in '66 shooting," Detroit News, p 6A, 5 September 2007.

    3. Evidence That Tobacco Poses A "Universal Malice" Hazard

    Toxic Tobacco Smoke (TTS) is filled with poisons including radioactive polonium, as stated above, and is

    "absorbed through the pulmonary circulation and [is[] carried by the systemic circulation to every tissue and cell, causing mutations of cellular genetic structures, deviation of cellular characteristics from their optimal normal state, accelerated aging, and early death from a body-wide spectrum of diseases,"—Ravenholt, R. T., M.D., M.P.H., 307 N Engl J Med (#5) 312 (29 July 1982).

    "Smoking is the greatest cause of premature death and disability in the United States,"—Martin, M. J., et al., 315 N Engl J Med 647 (4 Sep 1986). It is because of toxic chemical quantities in excess of standards ("speed limits") that tobacco smoke is the No. 1 hazard (an "ultrahazardous" hazard) and killer.

    Carbon monoxide is known to have "no 'safe' level, no level below which adverse effects do not occur."—Comment, "Legislation for Clean Air: An Indoor Front," 82 Yale Law Journal 1040-1054, at 1045 (April 1973).

    "The smoker of cigarettes is constantly exposed to levels of carbon monoxide in the range of 500 to 1,500 parts per million when he inhales."—Miller, G.H., 72 J Indiana St Med Ass'n 904 (Dec 1979), cited with approval in Pletten, L.J., "Smoking as hazardous conduct," 86 N Y St J Med 493 (Sep 1986), in the context of violation of toxic chemical "speed limits" codified in 29 CFR § 1910.1000.

    The bottom line fact is (says Meta Lander, The Tobacco Problem [Boston: Lee and Shepard, 1882], p 381) "poison, alias cigarettes."

    Tobacco smoke involves massive quantities of toxic chemicals making bodily contact and producing effects at the "holocaust" level. "A plaintiff in an action to recover damages for [resultant harm] founded on bodily contact must prove only that there was bodily contact; that such contact was offensive; and that the defendant intended to make the contact. The plaintiff is not required to prove that defendant intended physically to injure him." Masters v Becker, 22 App Div 2d 118; 254 NYS2d 633 (1964) (decision rejecting the false and mythical notion that the injured plaintiff must also prove "that the [harm-causing] defendant intended the act that resulted in injury . . . intended to commit an injury, and . . . intended the very injury sustained. . . .").

    It is unlawful to take concerted action, engage in conspiracy, to violate federal legal rights (e.g., the right to due process before being killed), as per laws such as 18 USC § 241.

    4. Fundamental Principles of Law

    "No one has a right to have his property burn, if thereby the property of others is endangered. The right to extinguish fires . . . is a part of the police power. . . . It may be exercised 327not only without the consent of the owner of the property on fire, but against his will." Wamsutta Mills v Old Colony Steamboat Co, 137 Mass 471, 473; 50 Am Rep 325, 326-327 (5 Sep 1884). The fire aspect intended by the manufacturer is of course, of the essence in smoking. (Cigarettes without fire are not what the problem is about!)

    What is at issue is an "ultrahazardous activity" as that term is defined in professional material. See an analysis of the concept by the U.S. Supreme Court in the case of Laird v Nelms, 406 US 797; 92 S Ct 1899; 32 L Ed 2d 499 (1972). There, sonic booms and dynamite blasting are discussed in context of "ultrahazardous activity." Each produces a spreading effect. Cigarettes do that via fires and via their toxic chemicals, superheated, moving at high speed. In contrast to sonic booms and dynamite blasting, cigarettes kill 37,000,000 in the U.S. alone, and constitute a "holocaust." This is the most ultrahazardous activity on earth. The point, in law, is that in dealing with "ultrahazardous activity," there is "strict liability" for all consequent damages, even if negligence is not proven.

    The U.S. Supreme Court states that it is not

    “unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line.” Boyce Motor Lines, Inc v United States, 342 US 337, 340; 72 S Ct 329, 331; 96 L Ed 367 (1952).

    In a cigarette death case (two firemen killed due to a smokers' smoking causing a building fire), the Pennsylvania Supreme Court ruled that a "toxic substance "is the prototype of forces" or substances "which the ordinary man knows must be used with special caution because of the potential for wide devastation ["universal malice"], Commonwealth v Hughes, 468 Pa 502; 364 A2d 306, 311 (1976).

    It is well established that a single act can violate more than one legal principle or restriction. The initial violation may be no more than a minor one, as in Hughes, a work rule violation (the no smoking rule). The violation of that seemingly minor rule caused a fire which, in turn, produced "the death of two firemen," p 308, leading to "two counts of involuntary manslaughter." Both counts were upheld by the Pennsylvania Supreme Court. Tobacco involves two, not just one, prototypic hazards, i.e., toxic chemicals and fire.

    5. Legal Principles on Poison

    A leading case on poison was issued by the Michigan Supreme Court in 1858. This was after tobacco's role as a poison was known, and its brain-damaging impact, and shortly after tobacco's role in suicide, insanity, and crime had been noted. The law at issue provided for up to life in prison for a first offense of poisoning a person.

    The case at issue involved a poison that served (as tobacco does), as a mind-altering drug. It alters a person's future behavior so that impaired reasoning occurs, with a result including but not limited to self-destructive and others-destructive behavior.

    The name and reference numbers of the 1858 poisoning case are as follows: People v Carmichael, 5 Mich 10; 71 Am Dec 769 (1858). You can read it yourself at your local law library.

    In that case, defendant Carmichael, like tobacco pushers, pleaded ignorance of the substance's actual effects.

    The court rejected the ignorance defense. Ignorance is not a defense. It is negligence. Since the harm happened, the pusher intended it. Period.

    The decision includes the following words:

    "It is obvious that the law does not encourage tampering with such matters [poisons. Thus], we [the Supreme Court] are not disposed to resort to . . . subtilities to defeat a law [against poisoning people] which, if severe, is to the public benignant and humane in its severity."

    "Where an unlawful act is done, the law presumes it was done with an unlawful intent, and here the act . . . was unquestionably unlawful . . . .

    "It is unnecessary to decide how far even positive proof that a man was misinformed as to the degree of injury likely to arise from the use of any substance would avail him in defense . . . intention is, in law, deducible from the act itself."

    Since the pusher's ignorance defense is invalid, there is therefore

    "the legal inference that he did it with intention of producing such effect as would naturally result from its reception," Carmichael, 5 Mich 10, 17-20; 71 Am Dec 769, 762-776.

    "The greater susceptibility of some persons over others, to be affected by it, renders it [poison] still more dangerous," p 19/775.

    The poison, a mind-altering drug, acts to "take away the power of resistance" [the self-defense reflex], p 20/775, thus causing "the most deplorable effect . . . the dethronement of reason from its governing power."

    People v Carmichael, 5 Mich 10 (1858) gives a medically sound, well-reasoned overview of the addiction concept. Characteristics of addiction include that it does:

    "[1] take away the power of resistance [by producing an unsound mental condition] . . .

    "[2] make [the user] an easy prey to [the pusher and other harm]

    "[3] work upon [the] physical system [so] as to excite . . . passions beyond the control of reason, and,

    "[4] in effect . . . produce, if not insanity, the most deplorable effect of insanity, which is the dethronement of reason from its governing power," Carmichael, 5 Mich 20-21, supra.

    See also comparable decisions, Commonwealth of Massachusetts v Stratton, 114 Mass 303; 19 Am Rep 350 (November 1873), and State of North Carolina v Monroe, 121 NC 677; 28 SE 547; 61 Am St. 686; 43 LRA 861 (1897).

    ". . . the immediate effect of smoking . . . is a lowering of the accuracy of finely coordinated reactions (including associative thought processes)."—John H. Kellogg, M.D., LL.D., F.A.C.S., Tobaccoism, or, How Tobacco Kills (Battle Creek, MI: The Modern Medicine Publishing Co, 1922), p 88.

    Tobacco pushing is, due to the wide range of deaths caused, "one of the greatest offenses against humanity," observes Prof. Bruce Fink, in Tobacco (Cincinnati: The Abingdon Press, 1915), p 30. Tobacco pushers' centuries of practiced, refined, honed, "universal malice" leads nonsmoker children, non-addicts, into the starter drug, then down the road, to subsequent addictions, by hooking them on tobacco, a known mind-altering drug. In effect, such drug is a mind poison, causing abulia.

    It is illegal to do that to a person—provide a mind-altering drug, Carmichael, 5 Mich 10; 71 Am Dec 769. As a result of ingesting such a drug, the person may come to harm, even if NOT from the initial drug or incident, but something in the future. So providing it is a crime, even when death is delayed, People v Stevenson, 416 Mich 383; 331 NW2d 143, 145-6 (1982), upheld, Rogers v Tennessee, 532 US 451; 121 S Ct 1693; 149 L Ed 2d 697 (14 May 2001).

    See also Gettings v. State [32 Ala.App. 644], 29 So.2d 677 (1947), relative to harming additional parties (including me) as well as “the object of” “the” “deducible” “intention.” “The intent is transferred to the person” harmed, and “‘The intention follows the bullet,’” State v. Batson, 339 Mo. 298, 96 S.W.2d 384 (1936). “The intention follows the” tobacco smoke.

    It is unlawful to take concerted action, engage in conspiracy, to violate federal legal rights, as per laws such as 18 USC § 241. When death results, the penalty provided goes up to capital punishment.

    The Stevenson precedent is particularly pertinent to tobacco, as it is children (not as well-educated now as in the 19th century) who are typically the ones starting smoking (adults typically know better, so rarely begin). The crime victim status arises at the time of the initial offense (shooting, poisoning, initial sale, fraudulent advertising), regardless of the delay in the death (often for decades, though death as a youth from smoking is not unknown; and see also data on abortion and SIDS, killing people even before birth or soon thereafter).

    For examples of pusher advertising to enable a higher kill ratio, see, e.g., this Old Photos Website," including tobacco ads. For example, Marlboro had 1% of the US market until it came up with the "Marlboro Man" advertising series, to entice people via the deceptive nature of the ads.

    As shown herein, tobacco pushers are foreseeably subject to conviction for poisoning and murder. Tobacco pushers mass poison nonsmoker children, turning them into smokers, dethroning their reason from its governing power, taking away their power of resistance, making them an easy prey for subsequent addictions. injuries, and/or death. Such pusher activities involve massive, rampant, continuing, repeated, repetitive, violations of the legal principles herein, including in Michigan, mass violation of MCL § 750.27, MSA § 28.216. In most if not all jurisdictions, the mass violations include mass sales to children to whom it is unlawful to sell.

    In sum, tobacco executives and pushers produce, manufacture, give away and sell tobacco "with the intention of producing such effect as would naturally result from its reception." Carmichael, 5 Mich 10, 17-20; 71 Am Dec 769, 762-776. (Michigan lacks capital punishment, so the penalty only goes to life in prison; Michigan pushers should also be charged under federal criminal law which allows it).

    In other states, see pertinent precedents: "if one willfully does an act, the natural tendency of which is to destroy another's life, the irresistible conclusion . . . is that the destruction of such other person's life was intended." People v Coolidge, 26 Ill 2d 533, 537; 187 N.E.2d 694; 1963 Ill. LEXIS 696 (1963). See also People v Fitzgerald, 171 Ill.App.3d 218; 121 Ill. Dec. 142; 524 NE2d 1190, 1193; 1988 Ill. App. LEXIS 773 (1988).

    "Poison is a dangerous subject. Gunpowder is the same. A torpedo is a dangerous instrument as is a spring gun, a loaded rifle or the like. They are instruments and articles in their nature calculated to do injury to mankind, and generally intended to accomplish that purpose. They are essentially, and in their elements, instruments of danger." Loop v Litchfield, 42 NY 351 (1870). Notice the key point, poison is "calculated" and "intended" to injure "mankind," i.e., the "universal malice" concept. Tobacco is notoriously a poison, documented over a period of centuries, and in turn, emitting poisons.

    6. The Safety Duty

    The Supreme Court states that by law, Congress places "the 'benefit' of worker health above all other considerations." American Textile Mfrs Institute v Secretary of Labor Donovan, 452 US 490, 509; 101 S Ct 2478, 2490; 69 L Ed 2d 185, 202 (1981). Disregard of safety and

    "violation of the regulations [here, the principles herein] is evidence of negligence to be considered with the other facts and circumstances," Dunn v Brimer, 537 SW2d 164, 165 (Ark, 1976).

    "In Michigan, violation of a statute is negligence per se." Thaut v Finley, 50 Mich App 611; 213 NW2d 820, 821 (1973).

    The "unqualified and absolute" safety adjective requires foresight and vigilance for compliance: What foresight and vigilance consist of and require of executives and tobacco sellers are described by the Supreme Court as follows:
    "The requirements of foresight and vigilance imposed on responsible corporate agents are beyond question demanding, and perhaps onerous, but they are no more stringent than the public has a right to expect of those who voluntarily assume positions of authority in . . . enterprises whose services and products affect . . . health and well-being . . . " United States v Park, 421 US 658, 672; 95 S Ct 1903; 44 L Ed 2d 489 (1975).

    This was in answer to a convicted business official (Mr. Park) who argued all the way to the Supreme Court that the legal duty set, is too high!

    Re tobacco, there is no question but that it does adversely "affect . . . health and well-being . . . " up to and including causing death.
    "'The accused [executive or tobacco seller], if he does not will the violation, usually is in a position to prevent it . . . '" Park, 421 US 658; 95 S Ct 1903; 44 L Ed 2d 489, supra.

    That is certainly the case here with tobacco, as each
    "defendant had, by reason of his position . . . responsibility and authority either to prevent in the first instance, or promptly to correct, the violation complained of, and . . . failed to do so. [Conviction upheld]." Park, 421 US 658; 95 S Ct 1903; 44 L Ed 2d 489, supra.

    In that case, the company president Mr. Park personally was arrested and convicted. He argued that he had delegated to his subordinates. In rebuttal, the Supreme Court said that he (the convicted executive) in law "could not rely on his system of delegation to subordinates to prevent or correct" the violation. The business executive has personal responsibility to act when there is a safety hazard. Safety involves a stringent duty of this nature, said the Supreme Court, as safety does
    "'touch phases of the lives and health of the people which, in the circumstances of modern industrialism, are largely beyond self-protection.'" Park, 421 US 658, 671-678 and n 35; 95 S Ct 1903; 44 L Ed 2d 489, supra.

    "A conscious, intentional, deliberate, voluntary decision [to ignore others' safety] properly is described as willful." F. X. Messina Construction Corp v OSHRC, 505 F2d 701, 702; 2 O.S.H. Cas.(BNA) 1325 (CA 1, 1974).

    See a parallel 2013 case, “Genocide in Guatemala: The Conviction of [President] Efrain Rios Montt” (15 May 2013) (context). The court ruled that he, as a leader, “was aware of everything that was happening, and did not stop it, despite having the power to stop it,” referring, for example, to some 1,700 deaths caused 30 years before, in the 1982-1983 period. His defense (“I never authorised it, I never signed, I never proposed, I never ordered that race, ethnicity or religion to be attacked. I never did it!”) did not prevail since "despite having the power to stop it,” he “did not stop it.” He failed to do "foresight and vigilance."

    This principle covers "conscious, intentional, deliberate, voluntary decisions" to engage in tobacco production and selling and resultant adverse consequences including the above-holocaust level of deaths. "[T]he distinction between 'misfeasance' and 'nonfeasance' (the distinction between active misconduct and passive inaction) is deeply rooted in the law of negligence." People v Kevorkian, 447 Mich 436, 471; 527 NW2d 714 (1994).

    The requirement with carbon monoxide is not that the prosecutor must prove intent to kill; but rather, the accused must prove a lack of intent to kill, said the Michigan Court of Appeals Thursday, 22 Feb 1996. The coronor, Dr. L. Dragovic, said carbon monoxide "has no beneficial or medical or therepeutic value. It's a poisonous gas. Everybody knows that." (Cited in "Kevorkian must prove he didn't try to kill," by John Larabee, The Detroit News, pp 3C and 6C (23 Feb 1996) (in context of deaths of Merian Fredericks, et al., from inhaling carbon monoxide).

    7. "Universal Malice" Elaborated More Deeply

    In situations of widespread potential harm ("universal malice"), harm is foreseeable, hence, malice is presumed. The D.C. Circuit Court of Appeals described a situation of "universal malice" thus:
    "Precisely what happened is what might have been expected as the result . . . and is the natural and probable consequence . . . Malice is presumed under such conditions." Nestlerode v United States, 74 US App DC 276, 279; 122 F2d 56, 59 (1941).

    The court added, "The wonder of the case is that . . . there were not more . . . victims," in finding guilt and upholding conviction. Tobacco has so many victims -- in the tens of millions -- that it is clearly a situation of "universal malice" run rampant, i.e., above the holocaust level.

    "Poison is a dangerous subject. Gunpowder is the same. A torpedo is a dangerous instrument as is a spring gun, a loaded rifle or the like. They are instruments and articles in their nature calculated to do injury to mankind, and generally intended to accomplish that purpose. They are essentially, and in their elements, instruments of danger." Loop v Litchfield, 42 NY 351 (1870). Notice the key point, poison is "calculated" and "intended" to injure "mankind," i.e., the "universal malice" concept. Tobacco is notoriously a poison, documented over a period of centuries, and in turn, emitting poisons.

    A "universal malice" (by act of commission or omission) has certain characteristics: It commonly "is not directed to any particular individual, but is general and indiscriminate . . . putting the lives of many in jeopardy." This is definitely the case with tobacco. Harm and death from a "universal malice," e.g., tobacco, does not arise from "provocation" at all, much less "sufficient provocation" to constitute a defense in law. Smokers do not provoke non-tobacco executives into becoming such!

    Here is an example of not provoking, but the criminal intends to victimize them anyway. Note the convicted robber who had intended to "stick up anybody who came through the front door," People v. Fitzgerald, 171 Ill.App.3d 218; 121 Ill. Dec. 142; 524 NE 2d 1190, 1192; 1988 Ill. App. LEXIS 773 (1988). Tobacco pushers with their killer items intend to kill "anybody who comes through the front door" for same.

    In a classic "universal malice" case, the Alabama Appeals Court cited examples when "universal malice concepts "have an apt and intelligible meaning, when used in regard to such cases" as shooting or driving into a crowd of people, while "not having the intent to kill any particular person, although . . . likely to [kill] some one or more persons." A universal malice is
    "'regardless of human life, although without any preconceived purpose to deprive any particular person of life." State v Massey, 20 Ala App 56, 58; 100 So 625, 627 (1924).

    The doctrine of "universal malice" clearly does "have an apt and intelligible meaning, when used in regard to such cases" as tobacco, as it contains multiple hazardous substances/toxic chemicals, and the fire aspect. The tobacco chemical/fire hazard combination "is not directed to any particular individual, but is general and indiscriminate." And even if tobacco had just been invented, it would be foreseeable that some people are "likely to" be killed by same. This one aspect alone is a sufficient "element of illegality" to render the whole unlawful.

    But as it is, we already have a body count in the tens of millions, already described over thirty years ago as a holocaust. We are not writing speculation for the future and the mere possibility/probability that deaths may someday, perhaps, maybe, occur in the far distant future -- still a fact sufficient for conviction -- but for the here and now -- the current already existing record. Tobacco is "universal malice" run rampant.

    Another "universal malice" case provides an insightful distinction between degrees of murder involved:
    "If an act be committed with a premeditated design to effect death, it is murder in the first degree; but if it is merely imminently dangerous to others, evincing a depraved mind, regardless of human life and without premeditated design, it is murder in the second degree." Montgomery v State, 178 Wis 461; 190 NW 105, 107 (1922).

    Considering the known hazards, the many years that the hazard has been known and is "beyond controversy," Larus & Bro Co, 447 F2d 880, supra, the voluntary production thereof, and the non-implementation of corrective measures over an extended period of time, continued production of tobacco under such circumstances is a situation of "premeditated" "universal malice" run rampant.

    Note the bottom line view tantamount to the pushers' view: "The death of one man is a tragedy. The death of millions is a statistic."--Joseph Stalin, alleged comment to Winston Churchill at Potsdam, 1945.

    8. Violation of Duties of Prevention and Aid

    Poison/toxic chemicals and fire involve a potential for wide devastation. The known susceptibility of smokers, nonsmokers including babies and fetuses subjected to toxic chemicals, and cocaine addicts to sudden death requires tobacco executives and retailers, to
  • not just NOT do as here is being done (mass death above the holocaust level), but also

  • requires them to obey the pertinent laws and aid the victims of their past and current violations, while ceasing and desisting to commit more. The duty of prevention and of aid, is ancient, e.g., as shown in a 1913 conviction based on failure to meet the duty:
    "The defendant was charged with the duty to see to it that . . . life was not endangered; and it is apparent he could have performed that duty . . . " [And] "To constitute murder, there must be means to relieve and wilfulness in withholding relief." Stehr v State, 92 Neb 755; 138 NW 676, 678 (1913).

    • All company, corporate, and retail officials have this duty. Tobacco deaths can easily be prevented by the simple act of not producing it! Self-control is not onerous! Most ALL people are not tobacco pushers--showing that the choice to not be a pusher is the norm!!

    Manufacturers and producers must produce safe products, i.e., must "see to it that . . . life [is] not endangered." That is Duty Number One, #1. That is a duty which is obviously being violated.

    Duty Two, #2, relates to providing aid to those already harmed. Tobacco producers and executives have made no provision to aid the victims that already exist. Indeed, they are in process of creating new and additional victims. This is rampant "willfulness in withholding relief," a holocaust of "universal malice" run rampant.

    This is especially evident in view of the Michigan law, the cigarette control law, MCL § 750.27, MSA § 28.216, to prevent people even manufacturing, much less, selling, deleterious cigarettes, much less, having customers in mass numbers, ending up dead. It is illegal to sell them Cigarette No. 1, much less, to sell so many of the toxic murderous things as to kill en masse. Tobacco manufacturers and sellers could easily have obeyed the law. They never did, 1909 to present. This is a clear-cut case of mass murder, above the holocaust level. Even after the numerous lawsuits alleging harm, they continued the en masse violations. They had the means to relieve the harm. They did not.

    Even in non-murder, non-life-threatening situations, i.e., simply as a routine duty,
    "A tortfeasor has a duty to assist his victim. The initial injury creates a duty of aid and the breach of the duty is an independent tort. See Restatement (Second) of Torts, § 322, Comment c (1965)." Taylor v Meirick, 712 F2d 1112, 1117 (CA 7, 1983).

    Tobacco pushers' centuries of universal malice (throughout the slavery era 1620-1865, and its many evils, including mass casualties) leads nonsmoker children, non-addicts, into the starter drug, then down the road, to subsequent addictions, injuries, and/or death, by hooking them on tobacco, a known mind-altering drug. In effect, such drug is a mind poison, causing abulia.

    Since before 1858, the criminal prosecution for doing that to a person--providing a person a mind-altering drug, Carmichael, 5 Mich 10; 71 Am Dec 769, this has been illegal. As a result of ingesting such a drug, the person may come to harm, even if NOT from the drug, so providing it is a crime. This is true even though injury and death may be delayed, People v Stevenson, 416 Mich 383; 331 NW2d 143, 145-6 (1982), upheld, Rogers v Tennessee, 532 US 451; 121 S Ct 1693; 149 L Ed 2d 697 (14 May 2001), e.g., hooking a child on tobacco at age 12, but death does not occur until some decades later. The initial act is the crime, just as the initial shooting is, even though death be delayed.

    Indeed, the initial act need only be advice. See Commonwealth v Bowen, 13 Mass 356 (Sep 1816): "If one counsel another to commit suicide, and the other, by reason of the advice, kill himself, the adviser is guilty of murder, as principal."

    9. Similarity of Murder Offenses in Law

    In law, certain classifications of acts are equated, e.g., the California Supreme Court states thus:
    "All murder which shall be perpetrated by means of poison, or lying in wait, torture, or by another kind of wilful, deliberate and premeditated killing . . . shall be deemed murder of the first degree." People v Wiley, 18 Cal 3d 162, 165; 133 Cal Rptr 135, 138; 554 P 2d 881 (1976). (Perhaps quoting from 18 USC § 1111.

    This is true even though the death be delayed, People v Stevenson, 416 Mich 383; 331 NW2d 143, 145-6 (1982), upheld, Rogers v Tennessee, 532 U.S. 451, 121 S.Ct. 1693, 149 L.Ed.2d 697 (14 May 2001). Tobacco meets all these criteria; meeting any one is enough for a murder verdict, as a matter of law.

    10. The "Taking Victims As They Come Doctrine" Introduced

    Whoever sets a process in motion takes the circumstances as he finds them. This includes "taking the victims as they come." It is not lawful to blame a victim for dying!!

    ". . . the immediate effect of smoking . . . is a lowering of the accuracy of finely coordinated reactions (including associative thought processes)."—John H. Kellogg, M.D., LL.D., F.A.C.S., Tobaccoism, or, How Tobacco Kills (Battle Creek, MI: The Modern Medicine Publishing Co, 1922), p 88. This means, tobacco damages, injures, incapacitates, smokers [meaning, smokers' brains via brain damage] so badly that they do not even comprehend the danger. Tobacco pushers are, in law, responsible for causing that harm to the smoker.

    Thirty (30) minutes exposure can kill, by, e.g., causing heart attacks in non-smokers taken as they come.

    Of course, as we know from tobacco litigation cases, the pushers blame the victim for dying!

    Honest courts refuse to let accused killers blame the victim. That has been the law for a century. When a defendant tries to blame the victim, the courts say "No.":
    "An instruction asked by defendant was to the effect that if, on the account of the diseased condition of Solberg, a blow of less force caused his death than would have been required to take the life of a healthy man, the defendant cannot be held guilty unless he knew of the true condition of the health of the deceased. The instruction was properly refused, and the jury were informed, in substance, that the condition of Solberg's health would not excuse defendant. Surely it cannot be claimed that a homicide may be excused on the ground that the man-slayer was ignorant of the fact that his victim's feeble condition [that he by his long refusal to obey the pertinent laws, had helped cause] was not such as to enable him to resist the violence." State v Castello, 62 Iowa 408; 17 NW 605, 606-607 (1883).

    In brief, an accused cannot cite a victim's condition (modern term, addiction for smokers, or sensitivity or handicap for same or nonsmokers) as a defense. For example, an accused tobacco executive cannot cite a smoker's addiction as a defense. The smoker can however cite the tobacco executives and retailers as causing the addiction, as doing that to a human being constitutes illegal poisoning, Carmichael, 5 Mich 10; 71 Am Dec 769, supra.

    This legal principle refutes tobacco pushers who argue in essence that some smokers stop smoking, therefore the others should not be compensated. That argument, blaming the victim, lacks legal validity.

    Indeed, it has been an invalid legal argument for over a century, so long that the re-raising of the argument is itself proof of negligence, malice and intent to harm. Ignorare legis est lata culpa; to be ignorant of the law is gross neglect. [And see civil law context.]

    As a matter of law, "If the exposure [to cigarettes' toxic chemicals] accelerated the death, it 'caused' the death." State v Smith, 73 Iowa 35; 34 NW 597, 601 (1887). If tobacco "accelerated the death [of a smoker], it 'caused the death."

    The legal principle of "taking the victim as he comes" is elaborated thus:
    "If it appear from the evidence that the death of deceased was accelerated by . . . the defendant, his guilt is not extenuated, because death might have come from natural causes as a result of disease with which the deceased was afflicted at the time . . . ." Barron v State, 29 Ala App 137; 193 So 190, 191 (1939).

    Characteristics of the principle that when the victim is "taken as he comes," harm to such a person is culpable, include the following:
    "Death in this case was not casually caused by misadventure and thus, in the sense that the defendant's conduct was capable of causing death in and of itself, that conduct was inherently dangerous to life. . . . The requirement that the danger posed be apparent does not require that death be certain or even probably, in the sense that it is more likely than not. . . ."

    Why? Because a tortfeasor (somone causing harm) is guilty even when the "probability . . . is greater than in the general sense." Turner v State, 76 Wis 2d 1; 250 NW2d 706, 712-713 (1977). "A tortfeasor cannot excuse himself by proving the susceptibility of his victim to the subject matter of the tort." The perpetrator "is responsible for the harm caused . . . regardless of the fact that [others] would not have [so reacted, e.g., by dying prematurely]."

    "Tortfeasors, for example, cannot escape liability by proving that the [victim's susceptibility] was a greater cause . . . than was the [tortfeasor's] act of negligence. In such cases, the tortfeasor must take his victims as he finds them. . . ." 2 Am Jur POF 199, 206 (1959).

    This is the same concept cited by Carmichael, 5 Mich 10, 17-20; 71 Am Dec 769, 762-776, "The greater susceptibility of some persons over others, to be affected by it, renders it [poison] still more dangerous," at 19/775.

    Tobacco meets these criteria. It does not produce death by "misadventure," instead, it is well established as "capable of producing death in and of itself." Even if addiction makes death of a smoker a "probability . . . greater than in the general case," that is no defense, that is part of the offense! The doctrine of "taking the victim as he comes" (or is made to become) makes clear that it is not acceptable to blame the victim. The law does not allow placing the blame there. This is true even when death is slow, People v Stevenson, 416 Mich 383; 331 NW2d 143, 145-6 (1982), concept upheld, Rogers v Tennessee, 992 SW2d 393 (Tenn, 1999), affirmed 532 U.S. 451, 121 S.Ct. 1693, 149 L.Ed.2d 697 (2001).

    11. Tobacco Deaths Are Not Unexpected


    1885

    Tobacco pushers have centuries of experience behind them, from the slavery era, in causing, aiding and abetting, promoting, genocidal levels of causalties. Doing that is nothing new for them, in other words. And see Prof. Raymond Pearl's 1938 summary of tobacco-death analysis data.

    In sustaining a conviction for the death of a victim "taken as he comes" (a person more likely to die from an effect that might not harm another person), the Wisconsin Supreme Court said
    "The danger of death . . . is not completely outside the realm of common knowledge . . . Although the death may have been an occurrence unexpected by the [specific] defendant, that [ignorance defense] fact alone cannot diminish the danger in which the defendant by his conduct chose to place . . . life. On the basis of all the evidence it was reasonable for the jury to be convinced beyond a reasonable doubt that the defendant's conduct was imminently dangerous to another."

    "An important consideration here is . . . This court has found the relative physical characteristics of the victim and assailant to be factors which may be considered in determining whether conduct is imminently dangerous. Wangerin v State . . . 73 Wis 2d [427] at 435; 243 NW2d [448] at 452; Kasieta v State, 62 Wis 2d 564, 570-571; 215 NW2d 412, 415-416 (1974). It is not unreasonable to infer that the physical trauma . . . will be greater . . . more frightening . . . the probability . . . greater than in the general case." Turner v State, 76 Wis 2d 1; 250 NW2d 713, supra.

    Perpetrator “ignorance of the victim's poor condition is immaterial,” Kasieta v State, 62 Wis 2d 564, 570-571; 215 NW2d 412, 415-416 (1974) (in context of defining unlawful intent, rejecting ignorance defense).

    In other words, if the killer is bigger than, more powerful than, the victim, imminent danger is more evident. "Big Tobacco" is the biggest killer! The tobacco hazard is well established. The knowledge of harm is clearly more widespread than a mere "not completely outside the realm of common knowledge," e.g., even death from smoking while still a youth. Much evidence on tobacco hazards exists, including Surgeon General reports, medical literature, product liability litigation, etc. Knowledge of the hazard is within "the realm of common knowledge" -- not to mention the manufacturer and retailer duty to know what they are doing! That there is a "greater probability" of harm to addicts is foreseeable. The word "unexpected" is not suitable to describe tobacco effects, since
    "Precisely what happened is what might have been expected . . . and is the natural and probable consequence . . . Malice is presumed." Nestlerode v U.S., 74 US App DC 276, 279; 122 F2d 56, 59, supra.

    12. Compliance Is Not An "Objective Impossibility"

    Sometimes defendants argue that compliance with the legal principles cited herein was an "objective impossibility." Not here! It is not an "objective impossibility" in terms of legal duty which "requires the defendant to foresee and prepare for [foreseeable harm], whether it be deemed 'natural' or 'artificial.'" Pertinent concepts on the legal doctrine of "objective impossibility" are discussed and applied in United States v Y. Hata & Co, Ltd., 535 F2d 508 (CA 9, 1976) cert den 429 US 828; 97 S Ct 87; 50 L Ed 2d 92 (1976), and United States v Starr, 535 F 2d 512, especially 515 (CA 9, 1976). This applies rules of law making higher officials responsible, even corporate president, United States v Dotterweich, 320 US 277; 64 SCt 134; 88 LEd 48 (1943).

    There is no requirement to produce tobacco products; production of tobacco products is voluntary.

    There is no requirement to add coumarin, for rat poison. Doing this is voluntary.

    Harm up to and including deaths of smokers is foreseeable.

    One can describe multiple tobacco deaths (e.g., lung cancer and SIDS) in terms of effects on tobacco victims, including those "taken as they come," or have been made to become, straight out of court decisions upholding murder convictions, e.g.,
    "heart attack . . . failure of circulation . . . asphyxiation, the condition where the body tissues have an insufficient amount of oxygen and excess carbon dioxide." Turner, 76 Wis 2d 1; 250 NW 2d, 172, supra.

    Such words aptly describe the foreseeable consequences of the twin tobacco hazards--toxic chemicals and fire. There can be no "objective impossibility" defense to the charge of failure to prevent such clearly foreseeable hazards.

    13."Taking Victims as They Come" Elaborated

    The legal principle of taking victims as they come is comprehensive. A 1910 ruling covers the situation of
    "manslaughter where death was caused by fright, fear, or nervous shock, and where the prisoner made no assault or demonstration against the deceased, and neither offered nor threatened any physical force or violence toward the person of the deceased." Ex parte Heigho, 18 Idaho 566; 110 P 1029, 1031-1032 (1910).

    The court added concerning the offender:
    "If his [activity] violence so excited the terror of the deceased that she died from the fright, and she would not have died except for the assault, then the prisoner's act was in law the cause of her death." Ex parte Heigho, 18 Idaho 566; 110 P 1029, 1031-1032, supra.

    The court added,
    "The law clearly covers and includes any and all means and mediums by or through which a death is caused by one engaged in an unlawful act." Heigho, supra.

    Criminal culpability exists even if a person "died from the fright" of the hazard to OTHERS, without reference to the hazard to himself, and without limiting application of the legal doctrine of "taking victims as they come" to his own personal "condition"/addiction. The legal doctrine of "taking victims as they come" is clearly comprehensive.

    The doctrine is succinctly summarized in Michigan Standard Jury Instruction (SJI 2d) 50.10, "Defendant Takes the Plaintiff As He/She Finds Him/Her":
    "You are instructed that the defendant takes the plaintiff as [he / she] finds [him / her]. If you find that the plaintiff was unusually susceptible to injury, that fact will not relieve the defendant from liability for any and all damages resulting to plaintiff as a proximate result of defendant's negligence" (January 1982).
    SJI 2d 50.10 cites Daley v LaCroix, 384 Mich 4, 13; 179 NW2d 390, 395 (1970) and Richman v City of Berkley, 84 Mich App 258; 269 NW2d 555 (1978), as pertinent precedents.

    There is modern evidence specifically supporting this concept in respect to nonsmokers. See the study by Bennett C, Alavanja MCR, Blomeke B, Vähäangas KH, Castrén K, Welsh JA, Bowman ED, Khan MA, Flieder DB, and Harris, CC, "Environmental Tobacco Smoke, Genetic Susceptibility, and Risk of Lung Cancer in Never-Smoking Women," 91 J Nat'l Cancer Institute (#23) 2009-2014 (1 Dec 1999). This study offers data fitting the legal doctrine of "taking victims as they come" as all persons are protected by law however diverse genetically.

    14. Wrong Is Not Apportioned

    In dealings with offenders who take the victims as they find them, "the law does not apportion the wrong." A
    "defendant cannot escape responsibility . . . under the doctrine of apportionment of wrongs, which the law does not do; the law does not apportion the wrong." Barron, 20 Ala App 137; 193 So 190, 191, supra.

    Whether the wrong "was caused . . . or hastened . . . or accelerated . . . is of no moment in this inquiry." Wrong, even "superinduced" wrong, is not excused; "the law does not apportion the wrong." Barron, supra.

    All the pertinent words, "caused," "hastened," and "accelerated," are involved in the process of tobacco harm, a process over time that results in a worsening and deterioration. Indeed, new and additional harm foreseeably develops in persons previously subjected to tobacco toxic substances. Cause and effect must be noted in the "victims taken as they come" process. How they came to be that way (addicted) must be noted. Attributing that process to offending executives and sellers is amply warranted considering the medical evidence. This one aspect alone is a sufficient "element of illegality" to render the whole unlawful.

    15. Denial of Shelter

    In a case of a victim taken as he comes, "the decedent what not been in good health for several months" when he was "grossly maltreated by defendant." The court added,
    "It is certain that [the victim] was greatly excited by the encounter. Immediately after it occurred he applied at a house in the vicinity for shelter, stating that he was afraid . . . on account of defendant . . . . A witness says of his appearance at that time: 'He acted just scared to death' . . . His health failed rapidly from that time." State v O'Brien, 81 Iowa 88;46 NW 752, 753 (1890).

    Over the years, many smokers have sought 'shelter' in terms of medical help for tobacco-caused injuries called by the name of diseases. Yet tobacco executives and sellers, despite the medical literature showing smokers as seeking medical help, continue producing products foreseeably likely to reproduce like harm to additional persons. It may be fairly said that smoker requests for "shelter" were denied by refusal to stop harming others, and by actions that result in others becoming "addicted." A pattern of disregarding prior incidents of people applying for "shelter" constitutes "circumstances which indicate a wilful disregard of the rights or the safety of others." Nestlerode, 74 US App DC 276, 279; 122 F2d 56, 59, supra.

    16. Transferred Intent

    Note also the "Doctrine of Transferred Intent," Black's Law Dictionary, 6th ed (St. Paul: West Pub Co, 1990), p 1498. Once a perpetrator does an initial wrongful act, including "universal malice" killing, supra § 3, even if somehow that victim is not harmed, but "another" is harmed, the perpetrators' illegal intent "is said to be transferred from one to the other and the [perpetrator] is liable to the other even though he did not intend it in the first instance." Examples of tobacco pushers' intent to kill adult smokers by the tobacco death rate (as verified as long ago as 1938) and by smokers' disproportionately high suicide rate, leading to deaths of many others include but are not limited to

    killing of fetuses (called abortion and miscarriage)
    killing of a wide range of people by drunk driving
    killings by TTS causing nonsmokers' heart disease
    killing by TTS causing nonsmokers' lung cancer
    killing of fetuses and babies by TTS (called SIDS)
    the slavery era death rate due to tobacco farmers
    disrespect for human life due to tobacco farmers
    smokers' disproportionate crime rate, e.g., murders

    For additional context, see our definitions site.

    17. When Penalties Apply

    Tobacco is a "universal malice" that disables and kills people, whether fast or slow, kills healthy people as well as victims taken as they come, or were changed to become. We, like the Michigan Supreme Court, can and must be
    "not disposed to resort to metaphysical subtilities to defeat a law which, if severe, is to the public benignant and humane in its severity." Carmichael, 5 Mich 10, 20; 71 Am Dec 769, 776, supra.

    "Whenever . . . there is a positive physical effect produced, and the poison administered operates to derange the healthy organization of the system temporarily or permanently, we think there is an injury which, whenever it is reasonably appreciable, may be regarded as within the statute." Carmichael, 5 Mich 10, 20; 71 Am Dec 769, 776, supra.

    A conviction is valid even when death is slow, People v Stevenson, 416 Mich 383; 331 NW2d 143, 145-6 (1982), and even if "death would occur . . . in less than one percent of the cases." Turner, 76 Wis 2d 1; 250 NW2d, 712, supra. Tobacco notoriously kills at a far higher rate. "Cigarette Makers Get Away With Murder," says Elizabeth M. Whelan, Sc.D., M.P.H., The Detroit News, p 4B [14 March 1993].) See also her two books,
    • Cigarettes: What the Warning Label Doesn't Tell You: The First Comprehensive Guide to the Health Consequences of Smoking (Amherst, NY: Prometheus, 1997), and

    • A Smoking Gun—How the Tobacco Industry Gets Away With Murder (Philadelphia: George F. Stickley, People's Health Library, 1984).

    "That one may be guilty of homicide by a blow of not itself mortal, but which accelerates death, is proposition supported by the old case of State v Morea, 2 Ala 275 [Jan 1841], and many other authorities. Tidwell v State, 70 Ala 33, 45 [Dec 1881]; Bowles v State, 58 Ala 335, 339 [Dec 1877], and cases there cited; and, if there be cases of death accelerated by a blow, in which the party delivering the blow is not responsible for the result, this is not one of them." Winter v State, 123 Ala 1; 26 So 949, 952 (1899).

    18. The Decision Belongs To A Jury

    The loss of even a small chance of averting a serious harm may be compensable under civil law, e.g., Murrey v United States, 73 F3d 1448, 1453-54 (CA 7, 1996) and Rosen v Ciba-Geigy Corp, 78 F3d 316 (CA 7, 1996). Tobacco companies have lost requests that civil cases against them be dismissed without a jury being allowed to analyze the facts. This principle even applies in criminal cases. Juries can foreseeably enter murder verdicts. As court ruled so long ago, letting the jury decide, was the correct action:
    "It was the province of the jury to determine whether the wrong of defendant caused or contributed to his [the victim's] death. The fact that he was afflicted with a disease which might have proved fatal would not justify the wrongful acts of defendant, nor constitute a defense in law. State v Smith, 73 Iowa, 35; 34 NW 597. Nor would ignorance on the part of defendant of the diseased physical condition of Stocum excuse his acts. State v Castello, 62 Iowa, 408; 17 NW 605." State v O'Brien, 81 Iowa 88; 46 NW 752, 753, supra.

    "If one counsel another to commit suicide, and the other, by reason of the advice, kill himself, the adviser is guilty of murder, as principal." Commonwealth v Bowen, 13 Mass 356 (Sep 1816). Tobacco pushers regularly, routinely, daily "counsel" their targets to buy, to smoke!

    As was said by Justice Denman in the Towers Case, it would be 'laying down a dangerous precedent for the future' for us [judges] to hold as a conclusion of law that manslaughter could not be committed by [mere] fright, terror, or nervous shock [much less, toxic chemicals!! or counseling ingesting same]." Ex parte Heigho, 18 Idaho 566; 110 P 1031-1032, supra.

    It would be laying down a dangerous precedent for the future to hold as a conclusion of law that murder cannot be committed by the "Merchants of Death," producers of the Number One cause of premature death, i.e, by cigarettes' toxic chemicals. This is true whether they kill fast or slow, People v Stevenson, 416 Mich 383; 331 NW2d 143, 145-6 (1982), concept upheld, Rogers v Tennessee, 992 SW2d 393 (Tenn, 1999), affirmed 532 U.S. 451, 121 S.Ct. 1693, 149 L.Ed.2d 697 (2001).

    An Austrian law bans Holocaust denial, authorizing up to ten years prison for "whoever denies, grossly plays down, approves or tries to excuse the National Socialist genocide or other National Socialist crimes against humanity in a print publication, in broadcast or the media." This law in essence enforces already existing laws against, e.g., fraud. In February 2006, "right-wing British historian David Irving" received "a 3-year prison sentence" for his Holocaust-denial activity, says The Macomb Daily, page 7A (22 Feb 2006).

    Similarly should be treated "whoever denies, grossly plays down, approves or tries to excuse the [tobacco] genocide or other [tobacco pusher] crimes against humanity in a print publication, in broadcast or the media."

    Tobacco pusher reaction upon being convicted for the killings they have caused will foreseeably react like the convicted Nazi, interviewed as follows:

    “For nothing! I was condemned for nothing!”

    “But what was the charge?”

    “The so-called charge was murder. . . .”

    “So you didn't murder anyone then?”

    “Murder! Never. They were killed, but not murdered.” — Eugene O. Smith, "The So-called Charge Was Murder," American Heritage, pp 64-74 at 73 (June/July 2005).

    Quote: “It is forbidden to kill; therefore all murderers are punished unless they kill in large numbers and to the sound of trumpets.” — Voltaire.

    19. Reason to Prosecute

    Toxic chemicals are a "universal malice," directable at, ingestable by, anybody. They can disable or kill anybody, both (a) healthy people, and (b) victims taken as they come. So for the above reasons, criminal prosecutions must be initiated.

    The Nazi holocaust included about 11,000,000 people. About six million were Jews. The others included Gypsies, Jehovah Witnesses, gays, and mentally or physcially handicapped. Tobacco pushers kill more, and for longer duration. The prediction is for 10,000,000 to die from smoking in 2025. This means that soon 11 million a year will be killed by tobacco pushers. This means that each year will be killed, i.e., as many as the Nazis exterminated in 12 years will be killed. U.S. casualties were about 390,000 to 400,000 people during the less than four years of our invovlkement in the War (December 1941 - September 1945). In contrast, tobacco pushers kill about 440,000 Americans each year. (Remember, U.S. combat casualities were mostly men, whereas tobacco kills indiscriminately, via universal malice, men, women, children, and the unborn.)

    Wherefore criminal prosecutions of the Nuremberg Trial type are more than amply warranted. And we must not omit to prosecute the pushers' accessories.

    In The Nurnberg Trial, 6 FRD 69 (1946), prosecution included William Joyce, a Nazi propagandist who was convicted and hanged for his pro-death media words. So prosecutions for tobacco deaths must also include aiders and abettors in the media.

    Too many in the media censor anti-tobacco data. When writings, books, newspaper ads, commercials, etc., aid and abet the killings, the publishers and advertisers are liable, as nothing in freedom of the press allows aiding and abetting murder and genocide, pursuant to case law such as Paladin Enterprises, Inc v Rice, 128 F3d 233 (CA 4, 1997) cert den 523 US 1074; 118 S Ct 1515; 140 L Ed 2d 668 (1998). See also the prosecution of journalists in the Rwanda Genocide Cases.

    In addition, culpable government officials, prosecutors and attorney generals who have not done their sworn duty to uphold the law, thus the tobacco holocaust has arisen, involved in refusing to enforce the cigarette control law, MCL § 750.27, MSA § 28.216, must also be prosecuted. See our websites on the subject of genocide and extraditing officials.

    In addition, note the case of Foster v State of Kansas ex rel. Johnston, 112 US 205; 5 S Ct 97; 28 L Ed 696 (10 Nov 1884), a case wherein a prosecutor was removed from office for non-enforcement of liquor control law. Removal being warranted for that, it is especially so for non-enforcement of laws in a holocaust situation.

    This is particularly so, as prosecutors are aware of the fatal effects of cigarettes on people such as nonsmokers, and have so stated in court filings. There are civil law precedents, e.g., Shaw v Brown & Williamson Tobacco Corp, 973 F Supp 539 (D Md, 15 Aug 1997) and Wolpin v Philip Morris, Inc, 974 F Supp 1465 (D SD Fla, 18 Aug 1997) (issue of duty of warning nonsmokers of the danger of involuntary smoking).

    And, in California, prosecutors on Friday, 8 August 1999, sought a court order requiring Philip Morris, R.J. Reynolds Tobacco Holdings Inc., British American Tobacco Plc's Brown & Williamson unit, Loews Corp.'s Lorillard Tobacco unit, and Brooke Group Ltd.'s Liggett Group, and and other tobacco companies (16 in total) to give non-smokers clear warnings of the danger. They said that the tobacco companies should be barred from selling cigarettes in California until they provide clear warnings about cancer-causing secondhand smoke.

    Those attorneys for California made the argument in court papers filed Friday, 8/8/99, as part of three consolidated suits scheduled to go to trial 25 Feb 2000 in San Diego County Superior Court. The state was seeking a court order that would require tobacco companies to pay for television, radio and newspaper ads warning of health risks to non-smokers from secondhand smoke. The state also wants tobacco companies to acknowledge the risks in letters to physicians and nurses throughout the state. (Although this was initially ruled against, other courts may have a more scientifically sound reaction).

    The state's case is based on California's hazardous-warning law. Adopted in 1986 as Proposition 65, it requires every business with 10 or more employees to post clear and reasonable warnings to the public of any chemicals that might cause cancer or reproductive problems. "Our position is that the (product) packages don't fulfill the requirements of Proposition 65 in that it's not a clear and reasonable warning to those who aren't consumers of tobacco,'' said Los Angeles Deputy City Attorney Amy Sopuch.

    20. "Wrongful Death" Damages

    Murder is not only a criminal law violation. It is also a civil law violation. The families of the murdered individuals are entitled to compensation. Note the $46,000,000.00 precedent in the O. J. Simpson Case. The verdict was for $12.6 million with respect to parental estate, and $33.5 million for compensatory and punitive damages.

    Let's apply this precedent to tobacco pusher caused killings. Take into account the centuries of accrued damages, the unconstitutionality of killing people without due process of law, the evidence that poisoning people is murder, and the holocaust level number of people killed.

    Multiply $46,000,000.00 times one billion killings this century. Take into account the centuries of past killings. That means verdicts would be some 46 million billion dollars, i.e., 46 thousand trillion dollars, i.e., 46 quadrillion dollars.

    This is more than the net worth of all the tobacco farms, tobacco manufacturers, tobacco retailers, and accessories combined. Enforcing this one principle alone would serve to end the tobacco holocaust.

    Recommended Websites for Background Data
    Chemicals in Cigarettes Definitions (Legal) Crime Prevention Genocide Aspects Government Corruption
    Media Censorship Medical Statistics Michigan Law Prosecuting Non-Enforcers Human Rights Law Context

    Fundamental Principles
    "The proof of the pattern or practice [of willingness to commit acts such as the above] supports an inference that any particular decision, during the period in which the policy was in force, was made in pursuit of that policy." Teamsters v U.S., 431 US 324, 362; 97 S Ct 1843, 1868; 52 L Ed 2d 396, 431 (1977).

    Violations of criminal law can indeed result in damage to private citizens. Ware-Kramer Tobacco Co v American Tobacco Co, 180 F 160 (ED NC, 1910).

    Litigants can show as part of the evidence in his/her own case, the guilt of others linked to the current defendant, in showing a pattern. Locker v American Tobacco Co, 194 F 232 (1912).

    The author's letter, "Make cigarettes illegal," Detroit Free Press, 13 Feb 2002, advocates criminal prosecution as per the data herein cited.

    Discussion Group: More Participants Welcome

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    “Pardon one offense, and you encourage the commission of many.”—Publilius Syrus (~100 BC).

    “Thou shalt not be a victim.
    Thou shalt not be a perpetrator.
    Above all, thou shalt not be a bystander.”
            —Holocaust Museum, Washington, DC.

    In Germany they came first for the Communists, and I didn't speak up because I wasn't a Communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade-unionists, and I didn't speak up because I wasn't a trade-unionist. Then they came for the Catholics, and I didn't speak up because I was a Protestant. Then they came for me and by that time no one was left to speak up. -- attributed to Rev. Martin Niemoller.
    Please speak up for tobacco pushers' targets. When they seek enforcement of the anti-poisoning and anti-murder rules of law herein cited, they are often attacked with the knowingly and murderously false accusation that enforcement of these ancient laws makes for a modern "nanny state"!!)

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