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Intoxica

the only point about which there has been any fluctuation being the extent to which evidence of drunkenness is receivable to determine the exactness of the intent, or the degree of deliberation." $ 51. When a particular condition of mind is requisite to consti

tute an offence, intoxication may be proved to explain tion admis- such condition. Great caution is necessary in the applisible to determine

cation of this doctrine to prosecutions for homicides and condition

other violent crimes, for, as has already been remarked, of mind.

there are few cases of premeditated violence in which the defendant does not previously nerve himself for the encounter by liquor, and there would in future be none at all, if the fact of being in liquor at the time is enough to disprove the existence of premeditation. The true view, therefore, is, not that the fact of liquor having been taken affects the issue when the offence is shown to have been premeditated, but that when there is no evidence of premeditation aliunde, and the defendant is proved at the time of the occurrence to have been in a state of mental confusion of which drink was the cause, the fact of such mental confusion

may ceived to show that the defendant was at the time in hot blood, making him peculiarly susceptible to supposed insult, which would reduce the offence at common law to manslaughter, or that he was

be re

State, 41 Ark. 511, 1882; Carter v. v. State, 49 Ga. 210, 1873; Moon v. State, State, 12 Tex, 509, 1854; Scott v. 68 Ga. 687, 1881; Haile v. State, 11 State, 12 Tex. App. 31, 1881 ; People Humph. 154, 1851 ; Tidwell v. State, v. Lewis, 36 Cal. 531, 1869; Houston 70 Ala. 33, 1881; Dawson v. State, 16 v. State, 26 Tex. App. 657, 1883; State Ind. 428, 1861; Cluck v. State, 40 Ind. v. Lowe, 93 Mo. 547, 1887; Rather v. 263, 1872; McIntyre v. People, 38 Ill. State, 25 Tex. App. 623, 1888; En- 514, 1864; Cartwright v. State, 8 Lea, gelhardt v. State, 88 Ala. 100, 1889. 376, 1881; People v. Williams, 43 Cal.

Scott v. State, 12 Tex. App. 31, 344, 1872; State v. Trivas, 32 La. An. 1882; Buckhannon v. Com., 86 Ky. 1086, 1880; Ferrell v. State, 43 Tex. 110, 1887; King v. State, 81 Ala. 92, 503, 1875; Wenz v. State, 1 Tex. App. 1886; Chrisman v. State, 54 Ark. 283, 36, 1876; Jeffries v. State, 9 Tex. App. 1891 ; State v. Zorn, 22 Oreg. 591, 598, 1880. 1892.

In New York, on a trial of an indict2 See infra, 22 54, 389.

ment for murder with a club in a sud3 See cases discussed infra, 22 54, den affray, it was held admissible to 389; and see R. v. Gamlen, 1 F. & F. prove that the prisoner was intoxi1858; People v. Rogers, 18 N. Y. 9, cated at the time; and where a wit1859; People v. Cassiano, 30 Hun, ness, then present, well knowing the 388, 1882; Jones v. Com., 75 Pa. 403, prisoner, after describing his appear1874; Keenan v. Com., 44 Pa. 55, 1862; ance and conduct, was asked to give State v. Garvey, 11 Minn. 154, 1866; his opinion whether the prisoner was Jones v. State, 29 Ga.594, 1860; Malone intoxicated, and the court excluded

not at the time capable of forming a deliberate or specific intent, which, as will be seen in the next section, affects the question of statutory degree. “If the existence of a specific intention,” says Sir J. F. Stephen, “is essential to the commission of a crime, the fact that an offender was drunk when he did the act which, if conpled with that intention, would constitute such crime, should be taken into account by the jury in deciding whether he had that intention."

$ 52. Hence drunkenness is material under the statutes resolving murder into two degrees, in which the distinguishing test is a specific intent to take life. In the Philadelphia riot cases of 1844, where it was shown that bodies of men were inflamed by sectarian and local prejudices, and blinded by a wild ap- as to in

Especially prehension of danger to such an extent as to make them tent to

take life. incapable of discrimination, or of precise or specific pursuch evidence, this was held ground U. S. v. Bowen, 4 Cranch C. C. 604, for a new trial. Eastwood v. People, 1835; State v. Maxwell, 42 Iowa, 208, 3 Parker C. R. (N. Y.) 25, 1855. But 1875; State v. Donavan, 61 Iowa, 369, see Kenny v. People, 4 Tiffany, (31 N. 1883; State v. Trivas, 32 La. An. 1086, Y.) 330, 1868.

1880; Houston v. State, 26 Tex. App. So on a trial for murder, the de- 657, 1883; People v. Langton, (Cal.) fendant's counsel requested the court 7 W. Coast Rep. 413, 1885; Cleveland to charge “that if it appeared from v. State, 86 Ala. 1, 1889; Carpenter v. the evidence that the condition of the Com., 92 Ky. 452, 1892. prisoner from intoxication was such as Dig. Crim. Law, art. 28. to show that there was no motive or 3 To this is cited R. v. Cruse, 8 C. & intention to commit the crime of mur- P.541, 1838. This view is affirmed in der, that the jury should find a verdict Hopt v. People, 104 U. S. 631, 1881; of manslaughter.” The court refused, Rather v. State, 25 Tex. App. 623, and it was held that the charge should 1888; U.S. v. King, 34 Fed. Rep. 302, have been given, as the question of 1888; U. S. v. Meagher, 37 Fed. Rep. intent was material to the degree of 875, 1888; King v. State, 81 Ala. 92, the crime. Rogers v. People, 3 Parker 1886; Engelhardt v. State, 88 Ala. C. R. (N. Y.) 632, 1855; s. C., in error, 100, 1889. 18 N. Y. 9. For advanced doctrine * Com.v. Dorsey, 103 Mass. 412, 1869. as to same point, see Smith v. Com., 1 “When a statute establishing difDuv. 224, 1864; Blimm v.Com., 7 Bush, ferent degrees of murder requires (Ky.) 320, 1871; which, however, are deliberate premeditation in order to greatly qualified in Shannahan v. constitute murder in the first degree, Com., 8 Bush, 463, 1871. See State v. the question whether the accused is in Edwards, 71 Mo. 312, 1880. That this such a condition of mind, by reason excuse is to be received with “great of drunkenness or otherwise, as to be caution," see People v. Ferris, 55 Cal. capable of deliberate premeditation, 588, 1880.

necessarily becomes a material subject | R. v. Moore, 3 C. & K. 319, 1850; of consideration by the jury.”—Gray, R.v. Monkhouse, 4 Cox C. C. 55, 1849; J., Hopt v. People, 104 U.S. 631, 1881.

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pose, it was held that they could not be considered as guilty of that species of “wilful and deliberate" murder which constitutes murder in the first degree.' Analogous to this is the case of the drunkard, who in a fight slays an antagonist without any prior premeditation. In his intoxication he may be incapable of such mental action as the term “premeditated” describes, or of forming a “specific intent" to take life. And yet, at the same time, at common law, the offence might, strictly speaking, fall under the head of murder, for it would possess the incident of malice, would be independent of that of provocation, and would be prompted by a determination to inflict great bodily hurt. Under such circumstances the offence may be ranked as murder in the second degree, and this has repeatedly been decided by the courts.? And if no malice be shown, the offence would be manslaughter, at common law.3 § 53. The same considerations apply to the question of specific

intent in other relations. Thus in an Ohio case it was

properly held, that when the charge was knowingly questions passing counterfeit money with intent to cheat, the

drunkenness of the defendant at the time of the offence was a fit subject for the consideration of the jury, there being no

And so as to other

1 Whart. on Hom. / 191.

Kans. 538, 1874; People v. Belencia, * Hopt v. People, 104 U. S. 631, 21 Cal. 544, 1862; People v. Williams, 1881; State v. Johnson, 41 Conn. 584, 43 Cal. 344, 1872; State v. Trivas, 32 1874; 8. C. 40 Conn. 136; People v. La. An. 1086, 1880. See infra, & 389. Batting, 49 How. Pr. 392, 1874; See, however, Estes v. State, 55 Ga. Penns. V. M'Fall, Add. 255, 1794; 30, 1875. Com. v. Haggerty, Lewis, C. L. 403; The question left to the jury in such Kelly v. Com., 1 Grant, 484, 1858; cases is, whether the defendant's menJones v. Com., 75 Pa. 403, 1874; Com. tal condition was such that he was v. Hart, 2 Brewst. 546, 1868; Com. v. capable of a specific intent to take Platt, 11 Phila. 421, 1876; Com. v. life. In Missouri, the rule in the text Jones, 1 Leigh, 598, 1829; Boswell v. is not accepted; State v. Edwards, 71 Com., 20 Gratt. 860, 1871; Rafferty v. Mo. 324, 1880; State v. Dearing, 65 People, 66 Ill. 118, 1872; Smith v. Mo.530, 1877; nor in Vermont; State State, 4 Nebr. 277, 1875; Jones v. v. Tatro, 50 Vt. 483, 1877. State, 29 Ga. 594, 1859; Curry v. Com., Hopt v. People, 104 U.S. 631, 1881. 2 Bush, 67, 1867; Swan v. State, 4 * See R. v. Monkhouse, 4 Cox C. C. Humph. 136, 1843; Pirtle v. State, 9 55, 1819; R. v. Stopford, 11 Cox C. C. Humph. 663, 1848; Lancaster v. State, 643, 1869; Com. v. Atkins, 136 Mass. 2 Lea, 575, 1879; Haile v. State, 11 160, 1884 (a case of fraud): People v. Humph. 154, 1851; State v. Bullock, Walker, 38 Mich. 156, 1878; Ingalls 13 Ala. 413, 1847; Kelly v. State, 3 v. State, 48 Wis. 647, 1880; U. S. v. Sm. & M. 518, 1844; State v. Harlow, Meagher, 37 Fed. Rep. 875, 1888; 21 Mo. 446, 1855; State v. White, 14 Keeton v. Com., 92 Ky. 522, 1892.

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ground to suppose that the defendant knew the money to be counterfeit before he was drunk.? To perjury, also, drunkenness may be a defence, though not when the false oath was intelligently taken.” Larceny, also, is not imputable to a person so drunk as to be incapable of a fraudulent intent And when the defendant was indicted for an attempt to commit suicide by drowning, and it was alleged that she was at the time unconscious of the nature of her act from drunkenness, Jervis, C. J., said to the jury : “If the prisoner was so drunk as not to know what she was about, how can you find that she intended to destroy herself?”5 So, again, when the charge was assault with intent to murder, Patterson, J., said: “A person may be so drunk as to be utterly unable to form any intention at all, and yet he may be guilty of very great violence. If you are not satisfied that the prisoners, or either of them, had formed a positive intention of murdering the child, you may find them guilty of an assault.”6 The same distinction applies to attempts.? Whenever, however, the offence is not dependent on intent, e.g., in double voting, then drunkenness is no defence.

$ 54. In an English case, decided in 1819,' where Holroyd, J., is reported by Sir W. Russell, who adopts his opinion as text law, to have said that the fact of drunkenness might be taken into consideration to determine the question duce rewhether an act was premeditated or done only with sudden ity when heat and impulse. Although this has been doubted,lo yet shown. it may now be considered as settled in England that where

Pigman v. State, 15 Ohio, 555, Finn, 108 Mass. 466, 1871; Rogers v. 1846, which case was afterwards con- State, 33 Ind. 543, 1870; State v. Schinfined to its peculiar state of facts in gen, 20 Wis. 74, 1866. Nichols v. State, 8 Ohio St. 435, 1858. 6 R. v. Moore, 3 C. & K. 319, 1850; See, to the same point, U.S. v. Rouden- 6 Law Rep. (N. S.) 581. bush, 1 Bald. 514, 1833. But see State 6 R. v. Cruse, 8 C. & P. 541, 1838. v. Avery, 44 N. H. 392, 1862. That in See Roberts v. People, 19 Mich. 401, a forgery case evidence of “dipso- 1869; Mooney v. State, 33 Ala. 419, mania" is admissible for the defence, 1860; Jeffries v. State, 9 Tex. App. see People v. Blake, Sup. Ct. Cal. 1884, 598, 1880; State v. Garvey, 11 Minn. 5 Crim. Law Mag. 723. Supra, % 48. 154, 1866.

* Lytle v. State, 31 Ohio St. 196, ? R. v. Doody, 6 Cox C. C. 463; R. 1875.

v. Stopford, 11 Cox C. C. 643, 1869. 3 People v. Willey, 2 Park. C. R. 19, 8 Infra, 22 88, 1835; People v. Harris, 1855.

29 Cal. 678, 1865; contra, State v. • Wood v. State, 34 Ark. 341, 1879. Welch, 21 Minn. 22, 1875. Infra, & 885; S. P. State v: Bell, 29 9 R. v. Grindley, 1 Russ. on Cr. 12, Iowa, 316, 1869; Scott v. State, 12 note t. Tex. App. 31, 1882. See Com. v. 10 R. v. Carroll, 7 C. & P 145, 1835.

But not so as to re

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no prior intention to kill is shown, drunkenness is a condition from which hot blood may be inferred, and therefore deliberateness negatived. In this country we have repeated rulings to the effect that where the encounter was sudden, and the defendant, prior to such encounter, had no intention to kill, intoxication at the time of the encounter can be taken into consideration, to ascertain whether the defendant, when under a legal provocation, acted from malice or from sudden passion, and whether there was deliberation, or a specific intention to take life. But when an intention to kill, formed when the defendant was in possession of his faculties, is shown, the court will tell the jury that voluntary intoxication does not lower the offence to manslaughter. And, under any circumstances, the intoxication must be coupled with the act. Thus evidence that the defendant was in the habit at times of drinking to excess, and of the effect of this habit upon his mind, is incompetent unless confined to a period within a few days of the homicide."

$ 55. Interesting questions may arise as to what “voluntary” is. There may be persons who from constitutional peculiarities are so susceptible to stimulants that on even slight indulgence they

1 R. v. Meakin, 7 C. & P. 297, 1836; Bell, 29 Iowa, 316, 1869; and see cases and see R. v. Gamlen, 1 F. & F. 90, infra, & 389. 1858; R. v. Thomas, 7 C. & P. 817, 3 Supra, 252. 1837.

4 R. v. Carroll, 7 C. & P. 145, 1835; ? U. S. v. Roudenbush, 1 Bald. 514, R. v. Meakin, 7 C. & P. 297, 1836; R. 1833; Com. v. Hawkins, 3 Gray, 463, v. Ayes, R. & R. 166, 1810; U. S. v. 1855; People v. Hammill, 2 Parker Cornell, 2 Mason, 91, 1825; Com. v. C. R. (N. Y.) 223, 1855; People v. Hawkins, 3 Gray, 463, 1851; State v. Robinson, Ibid. 235, 1855; Keenan v. Johnson, 41 Conn. 584, 1874; Penns. Com., 44 Pa. 55, 1862; Penns v. M'Fall, v. M'Fall, Add. 255, 1794; People v. Add. 255, 1794; McIntyre v. People, Robinson, 1 Park. C. R. 649, 1854; 38 Ill. 514, 1864; State v. Bell, 29 People v. Hammill, 2 Park. C. R. 223, Iowa, 316, 1869; Ingalls v. State, 48 1855; Boswell v. State, 20 Gratt. 860, Wis. 647, 1860; Kelly v. State, 5 Sm. 1871; Nichols v. State, 8 Ohio St. 435, & Mars. 518, 1845; Pirtle v. State, 9 1858; Smurr v. State, 88 Ind. 504, Humph. 663, 1848; Swan v. State, 4 1882; Mercer v. State, 17 Ga. 146, Humph. 136, 1843; Haile v. State, 11 1855; State v. Bullock, 13 Ala. 413, Humph. 154, 1851; State v. Harlow, 1845; Tidwell v. State, 70 Ala. 33, 21 Mo. (6 Bennett) 446, 1851; Jones 1881; State v. Dearing, 65 Mo. 530, v. State, 29 Ga. 594, 1859; Golden v. 1877; State v. Mullen, 14 La. An. 570, State, 25 Ga. 527, 1858; State v. Bul- 1859; Shannahan v. Com., 8 Bush, lock, 13 Ala, 413, 1847; Mooney v. 463, 1873, qualifying prior cases cited, State, 33 Ala. 419, 1860; People v. & 51; State v. Thompson, 12 Nev. 140, Balencia, 21 Cal. 544, 1861; People v. and cases cited supra, 2 50. King, 27 Cal. 507, 1865; People v. 5 Real v. People, 3 Hand, (42 N. Y.) Williams, 43 Cal. 344, 1872; State v. 270, 1869; and see supra, 8 48.

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