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invoked whenever we have to determine whether a party assailed acted bona fide when resorting to violent measures of self-defence. So do we gauge responsibility in cases of sleep-drunkenness; so do we estimate the conduct of persons when roused by any great political or religious excitement; and so do we hold in cases of intoxication, when called upon to measure deliberation and intent. If, in cases where homicide has been committed during an excitement which the defendant's peculiar psychical state has abnormally protracted and intensified, a verdict of murder in the second degree, or of manslaughter, be given in accordance with these views, a result is reached which not only harmonizes with sound principle, but it is far more consistent with the public idea of justice than would be a verdict either of not guilty or of murder in the first degree. Sir J. F. Stephen lends his authority to the same view. “Partial insanity,” he says, “ may be evidence to disprove the presence of the kind of malice required by the law to constitute the particular crime of which the prisoner is accused. A man is tried for wounding with intent to murder. It is proved that he inflicted the wound under a delusion that he was breaking a jar. The intent to murder is disproved, and the prisoner must be acquitted ; but if he would have had no right to break the supposed jar, he might be convicted of an unlawful and malicious wounding,"4 or, in case of the death of the party so wounded, the defendant might be found guilty of manslaughter, on the ground of negligent homicide.

1

Infra, 388, 389, 491 ; 1 Whart. other words, it is the absence of that & St. Med. Jur. & 181.

self-determining power which in a See Roberts v. People. 19 Mich. sane mind renders it conscious of the 401, 1869. Infra, 82 388–9, 491. real nature of its own purposes, and

. See, as illustrating this, McGreg- capable of resisting wrong impulses. or's Case, 23 Am. Jour. Ins. 549. When this self-governing power is

* Stephen's Cr. Law (1863), p. 92. wanting, whether it is caused by in

5 In Jones v. Com., 75 Pa. 403, 1874, sanity, gross intoxication, or other Agnew, C. J., said: “Want of intelli- controlling influences, it cannot be gence is not the only defect to moder- said truthfully that the mind is fully ate the degree of offence; but with in- conscious of its own purposes, and telligence there may be an absence of deliberates or premeditates in the power to determine properly the true sense of the act describing murder in nature and character of the act, its the first degree. We must, however, effects upon the subject, and the true distinguish this defective frame of responsibility of the actor: a power mind from that wickedness of heart necessary to control the impulse of which drives the murderer on to the the mind, and prevent the execution commission of his crime, reckless of of the thought which possesses it. In consequences. Evil passions often It is true, that whether a man is responsible can be answered only by yes or no. But while on the general question of amenability for crime there can be no grades of responsibility, it is otherwise when we view the question objectively, as involving responsibility for crimes of which there are several grades. A man may have capacity, for instance, to be responsible for manslaughter, but not to be responsible for murder ; for he may have capacity enough for a blind, passionate killing, but not for a killing that is deliberate and intelligent. In this sense we may hold that there may be modified guilt. Responsibility itself is capable of no modifications. But certain phases of guilt require higher capacity than do other phases of guilt.' And there may be properly a verdict of murder in the second degree in cases where there was an intent to kill, and yet, from mental disturbance, this intent was not specific.?

6. Intoxication.

Persons under in

3

intoxica

tion may

be irre

§ 48. Settled insanity, produced by intoxication, affects respon

sibility in the same way as insanity produced by any other

cause. If a man who, laboring under delirium tremens, sanity pro- kills another, be made responsible, there is scarcely any

species of insanity which on like principles would not be

subjected to the severest penalties of criminal law. A sponsible.

man laboring under this species of delirium may be as utterly insane as a man laboring under any other kind of delirium. The only ground for assigning a higher degree of responsibility in cases of delirium tremens is the fact that in the latter case the delirious person has subjected himself voluntarily to this calamity. But to this the answer is threefold: (1) That delirium tremens is not the intended result of drink in the same way that

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seem to tear up reason by the root, 1879. In Indiana the doctrine of the and urge on to murder with heedless text is not accepted; but the same rerage. But they are the outpourings sult is reached by authorizing the deof a wicked nature, not of an unsound fendant to put“his mental condition" or disabled mind."

in evidence for the purpose of ex1 See Meyer, % 25. Berner, % 125, plaining his intent. Sage v. State, 89 says, die Verfechter der verminder- Ind. 141. ten Zurechnungsfähigkeit wollen See, on this topic, Whart. & St. Richtiges in unrichtigerform." Med. Jur.(4th ed.) ? 204; article by Mr.

? Jones v. Com., ut sup.; Green v. Lawson in Am. Law Reg. Ap. 1884, Com., 83 Pa. 75, 1876 (infra, 22 380, pp. 217 et seq.; Territory v. Davis 455); Pistorius v. Com., 84 Pa. 158, (Ariz.) 22 Rep. 76, 1886. 1877; Willis v. Com., 32 Gratt. 928,

3

drunkenness is; (2) That there is no possibility that delirium tremens will be voluntarily generated in order to afford a cloak for a particular crime ; (3) That so far as original cause is concerned, delirium tremens is not peculiar in being the offspring of indiscretion or guilt, for such is the case with many other kinds of insanity. These points scarcely need to be expanded. The fact is, delirium tremens runs the same course with almost every other species of insanity known in the criminal courts. It is the result, like many other manias, of prior vicious indulgences; but it differs from intoxication in being shunned rather than courted by the patient, and in being incapable of voluntary assumption for the purpose of covering guilt. Hence the conclusion above given has been repeatedly affirmed. And expressly to this point is a case where Judge Curtis, of the United States Supreme Court, told the jury “ that if the defendant was so far insane as not to know the nature of the act, nor whether it was wrong or not, he is not punishable, although such delirium tremens is produced by the voluntary use of intoxicating liquors." Drunkenness, also, when so complete as to

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1 i Hale, 32; 4 Black. Com. 26; R. applied. Cf. People v. Cummins, 47 v. Thomas, 7 C. & P. 817, 1837; R. v. Mich. 334, 1882. Meakin, 7 C. & P. 297, 1837; Rennie's ? U. S. v. McGlue, 1 Curtis C. C. 1, Case, 1 Lew. C. C. 76, 1823; R. v. 1855. Davis, 14 Cox C. C. 563, 1879; U. S. When delirium tremens is set up as a 0. Drew, 5 Mason, 28, 1828 ; U. S. v. defence, the prisoner must show that Forbes, Crabbe R. 558, 1845; U. S. v. he was under a delirium at the time Clarke, 2 Cranch C. C. 158, 1824; the act was perpetrated, there being Flanigan v. People, 86 N. Y. 554, no presumption of its existence from 1881; Com. v. Green, 1 Ashm, 289, antecedent fits from which he has re1826; State v. Dillahunt, 3 Harring. covered. State v. Sewell, 3 Jones Law, 551, 1844; Roberts v. People, 19 Mich. (N. C.) 245, 1855. See, as to presump401, 1869; Maconnehey v. State, 5 tion of continuance of insanity, Whart. Ohio St. 77, 1855; Boswell v. Com., 20 Cr. Ev. 3 730. Gratt. 860, 1871; Smith v. Com., 1 Where it is shown that the deDuv. 224, 1864; Bales v. State, 3 W, fendant's mind has been so far deVa. 685, 1864 ; Bailey v. State, 26 Ind. stroyed by long-continued habits of 422, 1867; Fisher v. State, 64 Ind. drunkenness as to render him men435, 1878; Bennett v. State, Mart. & tally incompetent for the intelligent Yerg. 133, 1839; Cornwell v. State, commission of crime, this mental inIbid. 147, 1827; Beasley v. State, 50 capacity is held a sufficient defence. Ala. 149, 1873; Carter v. State, 12 Bailey v. State, 26 Ind. 422, 1867 ; Tex. 500, 1854; Erwin v. State, 10 Cluck v. State, 40 Ind. 263, 1871. As Tex. App. 700, 1881; Schlencker v. to “dipsomania,” see Whart. & St. State, 9 Nebr. 241, 1880; and see Med. Jur. & 639; State v. Pike, 49 N. Stuart o. State, 1 Baxt. 178, 1873, H. 399, 1869; People v. Blake, cited where the right and wrong test was infra, % 53. VOL. 1.-5

65

intoxication does not ex

stupefy, may be a defence to a prosecution for any offence with the commission of which stupefaction is inconsistent. And permanent insanity produced by drunkenness stands on the same footing as permanent insanity of any other type.? § 49. Temporary insanity, produced immediately by intoxication,

does not destroy responsibility, where the patient, when sane Voluntary

and responsible, made himself voluntarily intoxicated. It

may, as we will presently see, lower the grade of guilt culpate.

in cases in which the defendant did not previously make himself drunk with the crime in view. But it does not, when voluntary, and when not amounting to insanity as above stated, destroy responsibility. This conclusion is sustained not only by reason but by policy. There could rarely be a conviction for homicide if drunkennness avoided responsibility. Few violent crimes would probably be attempted without resorting to liquor both as a stimulant and as a shield : 6 and the very fact, therefore, which shows peculiar malignant deliberation, would be interposed as an excuse. The authorities, however, concur in rejecting this position. Sir E. Coke tells us : “As for a drunkard who is voluntarius daemon, he hath, as has been said, no privilege thereby, but what hurt or ill soever he doth his drunkenness doth aggravate it. Omne crimen ebrietas et incendit et detegit.? And though casual drunkenness cannot now be said to aggravate a crime in a judicial sense, yet it is settled that it forms no defence to the fact of guilt. Thus Judge Story, in a case already cited, after noticing that insanity, as a general rule, produces irresponsibility, went on to say: “An exception is, when the crime is committed by a party while in a fit of intoxication, the law allowing not a man to avail

1 Infra, & 54.

109 Ill. 169, 1883; Gunter v. State, ? State v. Robinson, 20 W. Va. 713, 83 Ala. 96, 1887. 1882.

* State v. Wilson, 104 N. C. 868, 3 That when the defendant was 1889. made drunk by the artifice of another • See 1 Whart. & St. Med. Jur. %? he is to be treated as if pro tanto in- 207–10. sane, see Bartholomew v. People, 104 6 See Nevling v. Com., 98 Pa. 323, Ill. 605, 1882. In Smith v. Com., 1 1881 ; State v. Robinson, 20 W. Va. Duv. 224, 1864; Judge Robertson held 713, 1882. that temporary drunkenness may in 7 Co. Litt. 247 a. respect to responsibility be treated as 8 See McIntyre v. People, 38 Ill. temporary insanity; but this was re- 515, 1864; Ferrell v. State, 43 Tex, pudiated in Shannahan v. Com., 8 503, 1875. Bush, 463, 1871; Upstone v. People,

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himself of the excuse of his own gross vice and misconduct to shelter himself from the legal consequences of such crime.” Lord Hale said : “ The third sort of madness is that which is dementia affectata, namely, drunkenness. This vice doth deprive a man of his reason, and puts many men into a perfect but temporary frenzy ; but by the laws of England such a person shall have no privileges by his voluntary contracted madness, but shall have the same judgment as if he were in his right senses. And so Parke, B., said to a jury in 1837: “I must also tell you, that if a man makes himself voluntarily drunk it is no excuse for any crime he may commit whilst he is so; he takes the consequences of his own voluntary act, or most crimes would go unpunished.”? And Alderson, B., said in 1836: “If a man chooses to get drunk, it is his own voluntary act; it is very different from madness, which is not caused by any act of the person. The voluntary species of madness which is in a party's power to abstain from he must answer for.”3 In harmony with this is the unbroken current of English authority.*

$ 50. In this country the same position has been taken with marked uniformity, it being held that voluntary drunkenness not amounting to settled insanity is no defence to the factum of guilt ;5

11 Hale, 7; 4 Black. Com. 26; 1 1877 ; Smurr v. State, 88 Ind. 504, Gabbett C. L. 9; and see a learned 1882; Upstone v. People, 109 Ill. 169, article in 6 Law Rep. (N. S.) 554. 1883; State v. White, 14 Kans. 538,

· R. v. Thomas, 7 C. & P. 817, 1837. 1874; State v. Welch, 21 Minn. 22, 3 R. v. Meakin, 7 C. & P. 297, 1836. 1875; State v. John, 8 Ired. 330, 1848;

* Burrow's Case, 1 Lewin, 75, 1823; State v. Stark, 1 Strobh. 479, 1846 ; Rennie's Case, 1 Lewin, 76, 1823; R. State v. Paulk, 18 S. C. 514, 1881; v. Ayes, R. & R. 165, 1810; R. v. Gam- Mercer v. State, 17 Ga. 146, 1854; len, 1 F. & F. 60, 1859; 1 Russell Choice v. State, 31 Ga. 424, 1860; on Crimes, 8.

Estes v. State, 55 Ga. 30, 1875; Han5 U. S. v. Clarke, 2 Cranch C. C. vey v. State, 68 Ga. 612, 1881 ; State 158, 1824; U. S. v. McGlue, 1 Curtis v. Bullock, 13 Ala. 413, 1848; Ford v. C. C. 1, 1855; U. S. v. Cornell, 2 State, 71 Ala. 385, 1881; Tidwell v. Mason, 91, 1825; U. S. v. Drew, 5 State, 70 Ala. 33, 1881 ; State v. ColeMason, 28, 1823; Com. v. Hawkins, man, 27 La. An. 691, 1875; Kelly v. 3 Gray, 463, 1855; Com. v. Malone, State, 3 Sm. & Mar. 518, 1844; Schal114 Mass. 295, 1873 ; Kenney v. Peo- ler v. State, 14 Mo. 502, 1851; State ple, 31 N. Y. 330, 1864; People v. v. Harlow, 21 Mo. 446, 1855; State v. Robinson, 1 Parker C. R. 649, 1854; Dearing, 65 Mo. 530, 1877; Smith v. People v. Hammill, 2 Parker C. R. Com., 1 Duv. 224, 1864; Golliher v. 223, 1855 ; Resp. v. Weidle, 2 Dall. 88, Com., 2 Duv. 163, 1865; Cornwell v. 1781; McGinnis v. Com., 102 Pa. 66, State, Mart. & Yerg. 147, 1827; Swan v. 1883 ; Boswell v. Com., 20 Gratt. 860, State, 4 Humph. 136, 1873; Pirtle v. 1871; Gillooley v. State, 58 Ind. 182, State, 9 Humph. 663, 1848; Casat v.

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