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.1

Intoxica

tion admissible to de

termine condition of mind.

§ 51. When a particular condition of mind is requisite to constitute an offence, intoxication may be proved to explain such condition. Great caution is necessary in the application of this doctrine to prosecutions for homicides and other violent crimes, for, as has already been remarked, 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 be received 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

State, 41 Ark. 511, 1882; Carter v. v. State, 49 Ga. 210, 1873; Moon v. State, State, 12 Tex. 509, 1854; Scott v. State, 12 Tex. App. 31, 1881; People v. Lewis, 36 Cal. 531, 1869; Houston v. State, 26 Tex. App. 657, 1883; State v. Lowe, 93 Mo. 547, 1887; Rather v. State, 25 Tex. App. 623, 1888; Engelhardt v. State, 88 Ala. 100, 1889.

1 Scott v. State, 12 Tex. App. 31, 1882; Buckhannon v. Com., 86 Ky. 110, 1887; King v. State, 81 Ala. 92, 1886; Chrisman v. State, 54 Ark. 283, 1891; State v. Zorn, 22 Oreg. 591, 1892.

2 See infra, ?? 54, 389.

3 See cases discussed infra, 2 54, 389; and see R. v. Gamlen, 1 F. & F. 1858; People v. Rogers, 18 N. Y. 9, 1859; People v. Cassiano, 30 Hun, 388, 1882; Jones v. Com., 75 Pa. 403, 1874; Keenan v. Com., 44 Pa. 55, 1862; State v. Garvey, 11 Minn. 154, 1866; Jones v. State, 29 Ga. 594, 1860; Malone

68 Ga. 687, 1881; Haile v. State, 11 Humph. 154, 1851; Tidwell v. State, 70 Ala. 33, 1881; Dawson v. State, 16 Ind. 428, 1861; Cluck v. State, 40 Ind. 263, 1872; McIntyre v. People, 38 Ill. 514, 1864; Cartwright v. State, 8 Lea, 376, 1881; People v. Williams, 43 Cal. 344, 1872; State v. Trivas, 32 La. An. 1086, 1880; Ferrell v. State, 43 Tex. 503, 1875; Wenz v. State, 1 Tex. App. 36, 1876; Jeffries v. State, 9 Tex. App. 598, 1880.

In New York, on a trial of an indictment for murder with a club in a sudden affray, it was held admissible to prove that the prisoner was intoxicated at the time; and where a witness, then present, well knowing the prisoner, after describing his appearance and conduct, was asked to give his opinion whether the prisoner was 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 coupled 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 apprehension of danger to such an extent as to make them incapable of discrimination, or of precise or specific pur

such evidence, this was held ground for a new trial. Eastwood v. People, 3 Parker C. R. (N. Y.) 25, 1855. But see Kenny v. People, 4 Tiffany, (31 N. Y.) 330, 1868.

So on a trial for murder, the defendant's counsel requested the court to charge "that if it appeared from the evidence that the condition of the prisoner from intoxication was such as to show that there was no motive or intention to commit the crime of murder, that the jury should find a verdict of manslaughter." The court refused, and it was held that the charge should have been given, as the question of intent was material to the degree of the crime. Rogers v. People, 3 Parker C. R. (N. Y.) 632, 1855; s. c., in error, 18 N. Y. 9. For advanced doctrine as to same point, see Smith v. Com., 1 Duv. 224, 1864; Blimm v. Com., 7 Bush, (Ky.) 320, 1871; which, however, are greatly qualified in Shannahan v. Com., 8 Bush, 463, 1871. See State v. Edwards, 71 Mo. 312, 1880. That this excuse is to be received with "great caution," see People v. Ferris, 55 Cal. 588, 1880.

1 R. v. Moore, 3 C. & K. 319, 1850; R. v. Monkhouse, 4 Cox C. C. 55, 1849;

Especially as to in

tent to

take life.

U. S. v. Bowen, 4 Cranch C. C. 604, 1835; State v. Maxwell, 42 Iowa, 208, 1875; State v. Donavan, 61 Iowa, 369, 1883; State v. Trivas, 32 La. An. 1086, 1880; Houston v. State, 26 Tex. App. 657, 1883; People v. Langton, (Cal.) 7 W. Coast Rep. 413, 1885; Cleveland v. State, 86 Ala. 1, 1889; Carpenter v. Com., 92 Ky. 452, 1892.

2

Dig. Crim. Law, art. 28.

3 To this is cited R. v. Cruse, 8 C. & P. 541, 1838. This view is affirmed in Hopt v. People, 104 U. S. 631, 1881; Rather v. State, 25 Tex. App. 623, 1888; U.S. v. King, 34 Fed. Rep. 302, 1888; U. S. v. Meagher, 37 Fed. Rep. 875, 1888; King v. State, 81 Ala. 92, 1886; Engelhardt v. State, 88 Ala. 100, 1889.

* Com. v. Dorsey, 103 Mass. 412, 1869. "When a statute establishing different degrees of murder requires deliberate premeditation in order to constitute murder in the first degree, the question whether the accused is in such a condition of mind, by reason of drunkenness or otherwise, as to be capable of deliberate premeditation, necessarily becomes a material subject of consideration by the jury."-Gray, J., Hopt v. People, 104 U. S. 631, 1881.

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.1 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

And so as to other

§ 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 of intent. 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

questions

1 Whart. on Hom. 191.

2 Hopt v. People, 104 U. S. 631, 1881; State v. Johnson, 41 Conn. 584, 1874; s. c. 40 Conn. 136; People v. Batting, 49 How. Pr. 392, 1874; Penns. v. M'Fall, Add. 255, 1794; Com. v. Haggerty, Lewis, C. L. 403; Kelly v. Com., 1 Grant, 484, 1858; Jones v. Com., 75 Pa. 403, 1874; Com. v. Hart, 2 Brewst. 546, 1868; Com. v. Platt, 11 Phila. 421, 1876; Com. v. Jones, 1 Leigh, 598, 1829; Boswell v. Com., 20 Gratt. 860, 1871; Rafferty v. People, 66 Ill. 118, 1872; Smith v. State, 4 Nebr. 277, 1875; Jones v. State, 29 Ga. 594, 1859; Curry v. Com., 2 Bush, 67, 1867; Swan v. State, 4 Humph. 136, 1843; Pirtle v. State, 9 Humph. 663, 1848; Lancaster v. State, 2 Lea, 575, 1879; Haile v. State, 11 Humph. 154, 1851; State v. Bullock, 13 Ala. 413, 1847; Kelly v. State, 3 Sm. & M. 518, 1844; State v. Harlow, 21 Mo. 446, 1855; State v. White, 14

Kans. 538, 1874; People v. Belencia, 21 Cal. 544, 1862; People v. Williams, 43 Cal. 344, 1872; State v. Trivas, 32 La. An. 1086, 1880. See infra, 389. See, however, Estes v. State, 55 Ga. 30, 1875.

The question left to the jury in such cases is, whether the defendant's mental condition was such that he was capable of a specific intent to take life. In Missouri, the rule in the text is not accepted; State v. Edwards, 71 Mo. 324, 1880; State v. Dearing, 65 Mo. 530, 1877; nor in Vermont; State v. Tatro, 50 Vt. 483, 1877.

3

Hopt v. People, 104 U. S. 631, 1881. See R. v. Monkhouse, 4 Cox C. C. 55, 1849; R. v. Stopford, 11 Cox C. C. 643, 1869; Com. v. Atkins, 136 Mass. 160, 1884 (a case of fraud); People v. Walker, 38 Mich. 156, 1878; Ingalls v. State, 48 Wis. 647, 1880; U. S. v. Meagher, 37 Fed. Rep. 875, 1888; Keeton v. Com., 92 Ky. 522, 1892.

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.3 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?" 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." 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.8

But not so

as to re

§ 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 whether an act was premeditated or done only with sudden heat and impulse. Although this has been doubted, yet it may now be considered as settled in England that where

1 Pigman v. State, 15 Ohio, 555, 1846, which case was afterwards confined to its peculiar state of facts in Nichols v. State, 8 Ohio St. 435, 1858. See, to the same point, U. S. v. Roudenbush, 1 Bald. 514, 1833. But see State v. Avery, 44 N. H. 392, 1862. That in a forgery case evidence of "dipsomania" is admissible for the defence, see People v. Blake, Sup. Ct. Cal. 1884, 5 Crim. Law Mag. 723. Supra, & 48. Lytle v. State, 31 Ohio St. 196, 1875.

People v. Willey, 2 Park. C. R. 19,

1855.

Wood v. State, 34 Ark. 341, 1879. Infra, 885; S. P. State v. Bell, 29 Iowa, 316, 1869; Scott v. State, 12 Tex. App. 31, 1882. See Com. v.

duce responsibility when how.

malice is shown.

Finn, 108 Mass. 466, 1871; Rogers v. State, 33 Ind. 543, 1870; State v. Schingen, 20 Wis. 74, 1866.

5 R. v. Moore, 3 C. & K. 319, 1850; 6 Law Rep. (N. S.) 581.

6 R. v. Cruse, 8 C. & P. 541, 1838. See Roberts v. People, 19 Mich. 401, 1869; Mooney v. State, 33 Ala. 419, 1860; Jeffries v. State, 9 Tex. App. 598, 1880; State v. Garvey, 11 Minn. 154, 1866.

7 R. v. Doody, 6 Cox C. C. 463; R. v. Stopford, 11 Cox C. C. 643, 1869.

8 Infra, 22 88, 1835; People v. Harris, 29 Cal. 678, 1865; contra, State v. Welch, 21 Minn. 22, 1875.

9 R. v. Grindley, 1 Russ. on Cr. 12, note t.

10 R. v. Carroll, 7 C. & P 145, 1835.

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.5

2

§ 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; and see R. v. Gamlen, 1 F. & F. 90, 1858; R. v. Thomas, 7 C. & P. 817, 1837.

2 U. S. v. Roudenbush, 1 Bald. 514, 1833; Com. v. Hawkins, 3 Gray, 463, 1855; People v. Hammill, 2 Parker C. R. (N. Y.) 223, 1855; People v. Robinson, Ibid. 235, 1855; Keenan v. Com., 44 Pa. 55, 1862; Penns v. M'Fall, Add. 255, 1794; McIntyre v. People, 38 Ill. 514, 1864; State v. Bell, 29 Iowa, 316, 1869; Ingalls v. State, 48 Wis. 647, 1860; Kelly v. State, 5 Sm. & Mars. 518, 1845; Pirtle v. State, 9 Humph. 663, 1848; Swan v. State, 4 Humph. 136, 1843; Haile v. State, 11 Humph. 154, 1851; State v. Harlow, 21 Mo. (6 Bennett) 446, 1851; Jones v. State, 29 Ga. 594, 1859; Golden v. State, 25 Ga. 527, 1858; State v. Bullock, 13 Ala. 413, 1847; Mooney v. State, 33 Ala. 419, 1860; People v. Balencia, 21 Cal. 544, 1861; People v. King, 27 Cal. 507, 1865; People v. Williams, 43 Cal. 344, 1872; State v.

* R. v. Carroll, 7 C. & P. 145, 1835; R. v. Meakin, 7 C. & P. 297, 1836; R. v. Ayes, R. & R. 166, 1810; U. S. v. Cornell, 2 Mason, 91, 1825; Com. v. Hawkins, 3 Gray, 463, 1851; State v. Johnson, 41 Conn. 584, 1874; Penns. v. M'Fall, Add. 255, 1794; People v. Robinson, 1 Park. C. R. 649, 1854; People v. Hammill, 2 Park. C. R. 223, 1855; Boswell v. State, 20 Gratt. 860, 1871; Nichols v. State, 8 Ohio St. 435, 1858; Smurr v. State, 88 Ind. 504, 1882; Mercer v. State, 17 Ga. 146, 1855; State v. Bullock, 13 Ala. 413, 1845; Tidwell v. State, 70 Ala. 33, 1881; State v. Dearing, 65 Mo. 530, 1877; State v. Mullen, 14 La. An. 570, 1859; Shannahan v. Com., 8 Bush, 463, 1873, qualifying prior cases cited, 51; State v. Thompson, 12 Nev. 140, and cases cited supra, ? 50.

5 Real v. People, 3 Hand, (42 N. Y.) 270, 1869; and see supra, & 48.