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human la^vs are based upon considera-
tions of policy, and look rather to the
maintenance of personal security and
social order, than to accurate discrimi-
nation as to the moral qualities of in-
dividual conduct. But there is in
truth no injustice in holding a person
responsible for his acts committed in a
state of voluntary intoxication. It is
a duty which every one owes to his
fellow-men, to say nothing of more
solemn obligations, to preserve, so far
as it is in his power, the inestimable
gift of reason. If it be perverted or
destroyed by fixed disease, though
brought on by his own vices, the law
holds him not accountable. But, if by
a voluntary act he temporarily casts off
the restraints of reason and conscience,
no wrong is done him if he is consid-
ered answerable for any injury which
in that state he may do to others, or to
society.

"Before proceeding to examine the
judge's charge, it is necessary to state
one other principle connected with the
subject of intoxication. I am of opin-
ion that, in cases of homicide, the fact
that the accused was under the influ-
ence of intoxication may be given in
evidence in his behalf. The effect
which the evidence ought to have upon
the verdict will depend upon the other
circumstances of the case. Thus, in
Eex V. Carroll, which was a case of
murder by stabbing, there was not, as
the court considered, any provocation
on the part of the deceased, and it was
held that the circumstance that the
prisoner was intoxicated was not at all
material to be considered. Rex v.
Meakin was an indictment for stab-
bing with a fork with intent to murder ;



and it was shown that the prisoner
was the worse for liquor. Alderson,
Baron, instructed the jury that, with
regard to the intention, drunkenness
might be adverted to according to the
nature of the instrument used. 'If,'
he said, ' he uses a stick, you could
not infer a malicious Intent so strongly
against him if drunk, if he made an
intemperate use of it, as you would if
he had used a different kind of a wea-
pon ; but, where a dangerous instru-
ment is used, which, if used, must
prodiice a grievous bodily harm, drunk-
enness can have no effect upon the '
consideration of the malicious intent
of the party.' In Rex v. Thomas, for
malicious stabbing, the person stabbed
had struck the prisoner twice with his
fist, when the latter, being drunk,
stabbed him, and the jury were charged
that drunkenness might be taken into
consideration where what the law
deems sufficient provocation has been
given, because the question in such
cases is, whether the fatal act is to be
attributed to the passion of anger ex-
cited by the previous provocation ; and
that passion, it was said, is more easily
excitable in a person when in a state
of intoxication than when he is sober ;
so, it was added, where the question is,
whether words have been uttered with
a deliberate purpose, or are merely
low and idle expressions, the drunken-
ness of the person uttering them is
proper to be considered. But, if there
is really a previous determination to
resent a slight affront in a barbarous
manner, the state of drunkenness in
which the prisoner was ought not to
be regarded, for it would furnish no
excuse.

" It most generally happens, in homi-
cides committed by drunken men, that

203



§ 211.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

force. If a person (so it has been there held) is subject to a heredi-
tary or other type of insanity liable to be excited by slight amounts



the condition of the prisoner would
explain or give character to some of his
language, or some part of his conduct,
and, therefore, I am of opinion that it
would never be correct to exclude the
proof altogether. That it would some-
times be right to advise the jury that
it ought to have no influence upon the
case, is, I think, clear from the fore-
going authorities. In a case of length-
ened premeditation, of lying in wait,
or where the death was by poisoning,
or in the case of wanton killing without
any provocation, such an instruction
would plainly be proper.

"Assuming the foregoing positions
to be established, I proceed to examine
the exception to the charge of the
judge. It is difficult to know precisely
what was meant by the request to
charge ; but I think its sense may be
expressed thus : that drunkenness
might exist to such a degree, that nei-
ther an intention to commit murder,
nor a motive for such an act, could be
imputed to the prisoner. It was there-
fore asked that it should be left to the
jury to determine whether such a de-
gree of intoxication had been shown ;
and that they should be instructed
that if it had, the prisoner should be
found guilty of manslaughter only.
We must lay out of view as inapplica-
ble, the case of a person who had be-
come insensible from intoxication, and
who was performing an act unaccom-
panied by volition. There was nothing
in the evidence to show that the pri-
soner's conduct was not entirely under
the control of his will, or which would
render it possible for the jury to find
that he did not intend to stab the de-
ceased with his knife. The mind and
will were no doubt more or less per-
verted by intoxication, but there was

204



no evidence tending to show that they
were annihilated or suspended. As-
suming, therefore, that the request did
not refer to such a hypothesis, the only
other possible meaning is that it sup-
poses the jury legally might find that
the prisoner was so much intoxicated
that he could not be guilty of murder
for the want of the requisite intention
and motive, and the request was that
they might be so instructed. This
would be precisely the same thing as
advising them that they might acquit of
murder on account of the prisoner's
intoxication, if they thought it sufli-
cient in degree. It has been shown that
this would be opposed to a well-estab-
lished principle of law. The judge
was not at liberty so to charge, and
the exception to his refusal cannot be
sustained. What he did charge on the
subject of intoxication was more favor-
able to the prisoner than he had a
right to claim. It implies that if he
was so far intoxicated as to be deprived
of his reasoning faculties, it was an
excuse for the crime of murder, or, as
perhaps it was intended to state, that
he could not be guilty of murder. The
rule which I have endeavored to ex-
plain assumes that one may be con-
victed of murder, or of other crime,
though his mind be reduced by drunk-
enness to a condition which would
have called for an acquittal if the ob-
liquity of mind had arisen from any
other cause. The judge ought to have
charged, that, if a man makes himself
voluntarily drunk, that is no excuse
for any crime he may commit while he
is so, and tliat he must take the con-
sequence of his own voluntary act.
(Rex V. Thomas, supra.) The charge,
therefore, gave the prisoner the chance
of an acquittal to which he was not



INTOXICATION AS A DEFENCE TO CHARGE OF CRIME. [§ 212.

of alcoholic drinks — if, in consequence of indulging in such drinks,
his mental faculties become excited to diseased action to such extent
that he loses self-control, if he was ignorant of this effect when so in-
dulging — then he will be regarded as rather insane than intoxicated,
and subject to the immunities of insanity.^ This is undoubtedly in
accordance with those analogies which gauge insane delusions by
the intellectual abilities of patient and not of critic, and which de-
clare that we are to measure a man's fears and passions by his
character and temperament, and not by our own,^ Dr. Krafft-
Ebing, in an essay published in 1871, has vindicated this position
psychologically with great power as well as delicacy of discrimina-
tion. He establishes by copious proof the fact that there are some
temperaments which slight quantities of spirituous liquor make in-
sane, and he argues that such persons, if drinking ignorantly, or
entrapped into drink, should be covered, pro tanto, with the immu-
nities of insanity.

But, to constitute such mitigation of guilt, drunkenness must be
involuntary in the sense above stated. A contrary doctrine was
indeed intimated by Judge Robertson, of Kentucky, in an eccentric
opinion already adverted to ;^ but to view voluntary and inten-
tional drunkenness as an excuse is without authority either legal
or psychological.*

§ 212. The connection between drunkenness and insanity is thus
stated by Griesinger : " That intoxication, when carried to a cer-
tain degree, as a dreamy condition with numerous hallucinations
and illusions, really resembles insanity, is easily understood. Some-
times we see individuals who, after partaking of a relatively small
quantity of spirits, and without being in a state of deep intoxica-
tion, but retaining fully their consciousness, present a great ten-
entitled ; but this was not an error 463. When drunkenness is voluntary,
of which he could take advantage." this position is without warrant. For
People V. Rogers, 18 N. Y. 9. See also review see 23 Am, Journ. of Insan. 1.
Friery v. People, 54 Barb. 319 ; 2 • Roberts v. People, 19 Mich. 401.
Keyes, 424. 2 gee §§ 34-60, 200. See essay by

In Smith v. Com., 1 Duvall, 224, Dr. George Cook, 18 Am. Journ. of Ins.
Judge Robertson startled the commu- 321. See also 19 ibid. 448.
nity, by stating that drunkenness may ^ Smith v. Com., 1 Duv. 224.
be an excuse for crime as a " transient * See an able review in 23 Am. Journ.
insanity." This, however, is repu- of Ins. 1 ; and see SM/^ra, § 200.
diated in Shannahan v. Com., 8 Bush,

205



§ 213.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

dency to commit very extravagant, noisy, and foolish acts ; a cir-
cumstance which may be truly considered as a symptom of predis-
position to mental disease.

" Moreover, there occur in drunkards sudden convulsive states
which resemble epileptic attacks, and which are sometimes followed
by a condition of forgetfulness and tranquil delirium, at other times
by outbreaks of furious delirium, which has been termed the con-
vulsive form of intoxication.

" The habitual drunkard, in whom the habit is already far ad-
vanced, presents also, even when he is not in a state of intoxication,
many signs which indicate the existence of an advancing chronic
disease of the brain, and which make him closely resemble the
mentally diseased. Indeed this condition may gradually pass into
insanity, and particularly into dementia ; and there are constantly
found in the brains of habitual drunkards, as in many of the insane,
the results of passive congestion — chronic opacities and thickenings
of the cerebral membranes. The appetite acquired by habit is so
powerful in the drunkard, the ideas which might oppose it are so
weak, and the will has become so paralyzed, that he, even though
he is aware that he renders himself despised and contemptible,
undermines his constitution, disturbs his domestic happiness, ruins
his business, and every day postpones the good resolution which he
perhaps has made.

" The craving, the dizziness, the dulness of the senses, the mus-
cular feebleness, the stomach complaints from which he suffers, are,
each time he partakes, alleviated for the moment, and it may, per-
haps, be partly owing to the fact that these disorders require each
day to be remedied that drunkenness is often so inveterate."

§ 213. " Of all the various forms of chronic insanity, drunken-
ness especially appears to possess much in common with general
paralysis. Besides, incompletely developed forms, which in a
medico-legal point of view are often very difficult to judge of, are
very common.

" These slight chronic mental anomalies observed in the drunkard
are manifested by very apparent mental dulness, loss of the sense
of duty, and in general of all the higher sentiments : conscience
and the sense of truth are blunted, the intellect is generally en-
feebled, especially the memory, frequently slight or well-marked
hallucinations also exist. Numerous other anomalies of the nervous
20t>



INTOXICATION AS A DEFENCE TO CHARGE OF CRIME. [§ 214.

system also present themselves ; tremors of the hands and of the
tongue, deadening of the sense of sight and of touch, debility of
the genital organs ; the patient has formications and cramps in his
limbs, giddiness, sometimes epileptic attacks of greater or less
severity ; sooner or later marasmus and dropsy may set in, with
the usual local affections (gastric disease, emphysema, cirrhosis of
the liver, Bright's disease, etc.). The children of drunkards very
frequently die early from convulsions ; many of them are idiots,
imbeciles, or microcephalic ; or in later life they present the same
disposition to drunkenness, insanity, and crime. "^

3. While intoxication per se is no defence to the fact of guilt, yet,
when the question of intent or premeditation is concerned, it may
he proved for the purpose of determining the precise degree.

§ 214. This position should be very jealously guarded, since,
as has already been remarked, there are few cases of

,., .., . ,., , Tp 1 Degree may

premeditated violent homicide, in which the deiendant te'deter-

does not previously nerve himself for the encounter by f^c^^^f ^

liquor, and there would in future be none at all, if the drunken-

. . . . ness.

fact of being in liquor at the time is enough to disprove

the existence of premeditation. The true view, therefore, would
seem to be, not that the fact of liquor having been taken is of any
value at all on the question of intent or premeditation, but that
when there is no evidence of premeditation aliunde, and where the
defendant is proved at the time of the occurrence to be in a state of
mental confusion of which drink was the cause, the fact of such
mental confusion may be received to show either that there was no
specific intent to take life, or that there was no positive premedita-
tion.2 In the cases arising out of the statutes resolving murder
into two degrees, in which the distinguishing test is a specific
intent to take life, this position receives several pregnant illustra-
tions. Thus, in the Philadelphia riot cases of 1814, where it was
shown that bodies of men were inflamed by sectarian and local pre-
judices, and blinded by a wild apprehension of danger to such an
extent as to make them incapable of discrimination, or of precise or
specific purpose, it was held that they could not be considered as

> Griesinger's Mental Path., Syden. ^ gpe cases detailed in Wh. Cr. L.

ed. (1867) § 100. 8th ed. § 51.

207



§ 214 ] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS.

guilty of that species of "wilful and deliberate" murder which
constitutes murder in the first degree/ Precisely analogous to
this is the case of the drunkard, who in a fight slays an antagonist
■without any sober reflection. In his intoxication he is incapable
of such mental action as the term " premeditate" describes. His
mental condition may be such as to deprive him of the capacity to
form a " specific intent" either to take life, or to do anything else.
And yet at the same time, at common law, the offence would,
strictly speaking, fall under the head of murder, for it would pos-
sess the incident of malice, and would be without due provocation.
Under such circumstances the offence properly is to be ranked as
murder in the second degree, and so has it repeatedly been decided
by the courts.^



• Wharton on Homicide, 371, 2.

2 Wh. Cr. L. 8th ed. §§ 52, 381 et
seq., and cases there cited. Com. v.
Jones, 1 Leigh, 612 ; Boswell v. Com.,
20 Gratt. 860 ; Com. v. Hart, 2 Brewst.
546 ; Com. v. Haggerty, Lewis, Cr. L.
402; Pirtle v. State, 9 Humph. 663;
Swan V. State, 4 Humph. 131 ; Penna. v.
M'Fall, Add. 257 ; People v. Hammell,
2 Parker, C. C. (N. Y.) 223 ; People v.
Robinson, ibid. 235. In a case in Ten-
nessee, the court thus speak : " Upon
the trial, there was evidence that the
prisoner was intoxicated at the time
he committed the homicide. Upon the
siibject of the defendant's intoxication
he told the jury that 'voluntary in-
toxication is no excuse for the commis-
sion of crime ; on the contrary it is
.considered by our law as rather an ag-
gravation ; yet, if the defendant was so
deeply intoxicated by spirituous liquors
at the time of the killing as to be in-
capable of forming in his mind a design
deliberately and premeditately to do
the act, the killing under such a state
of intoxication would only be murder
in the second degree.' It is insisted
that his honor did not state the prin-
ciple upon this subject, as it has been
ruled by this court. In the case of

208



Swan V. The State, Judge Reese, who
delivered the opinion of the court,
says: 'But, although drunkenness in
point of law constitutes no excuse or
justification for crime, still, when the
nature and essence of a crime are made
to depend by law upon the peculiar
state and condition of the criminal's
mind at the time, and with reference
to the act done, drunkenness, as a mat-
ter of fact, affecting such state and
condition of the mind, is a proper sub-
ject for consideration and inquiry by
the jury. The question in such case
is, what is the mental status ? Is it
one of self-possession, favorable to a
fixed purpose, by deliberation and pre-
meditation ; or did the act spring from
existing passion, excited by inadequate
provocation, acting, it may be, on a
peculiar temperament, or upon one
already excited by ardent spirits ? In
such a case it matters not that the
provocation was inadequate, or the
spirits voluntarily drank ; the question
is, did the act proceed from sudden
passion, or from deliberation or pre-
meditation ? What was the mental
status at the time of the act, and with
reference to the act ? To regard the
fact of intoxication as meriting con-



INTOXICATION AS A DEFENCE TO CHARGE OF CRIME. [§ 215.

§ 215. The same general view is taken as to the question of
intent in other cases. Thus it is now the settled rule in Enorland



sideration in siich a case, it is not to
hold that drunkenness will excuse
crime, but to inquire whether the very
crime which the law defines and pun-
ishes has been in point of fact com-
mitted. In these remarks the court
intend to be understood as distinctly
indicating, that a degree of drunken-
ness by which the party was greatly
excited, and which produced a state of
mind unfavorable to deliberation and
premeditation, although not so exces-
sive as to render the party absolutely
incapable of forming a deliberate pur-
pose, might be taken into considera-
tion by a jury, in determining whether
the killing was done with premedita-
tion and deliberation.' The whole sub-
ject was ably reviewed by Judge Tur-
ley, in the case of Pirtle v. The State.
In delivering the opinion of the court
in that case, the judge says, at page
671 : ' It will frequently happen neces-
sarily, when the killing is of such a
character as the common law desig-
nates as murder, and it has not been
perpetrated by means of poison, or by
lying in wait, that it will be a vexed
question, whether the killing has been
the result of sudden passion produced
by a cause inadequate to mitigate it to
manslaughter, but still sufficient to
mitigate it to murder in the second de-
gree, if it be really the true cause of
the excitement, or whether it has been
the result of premeditation and deli-
beration ; and in all such cases, what-
ever view is able to cast light upon the
mental status of the offenders is legiti-
mate proof; and among others, the fact
that he was at the time drunk ; not that
tHis will excuse and mitigate the of-
fence, if it were done wilfully, deliber-
ately, maliciously, and premeditately
(which it might well be, though the
VOL. I. — 14



perpetrator was drunk at the time) ;
but to show that the killing did not
spring from a premeditated purpose,
but sudden passion, excited by inade-
quate provocation, such as might rea-
sonably be expected to arouse sudden
passion and heat, to the point of taking
life, without premeditation and deli-
beration.' Here the court explicitly
lays down the rule to be, that in all
cases where the question is between
murder in the first and murder in the
second degree, the fact of drunkenness
may be proved, to shed light upon the
mental status of the oflfender, and there-
by to enable the jury to determine
whether the killing sprung from pre-
meditated purpose, or from passion ex-
cited by inadequate provocation. And
the degree of drunkenness which may
then shed light upon the mental state
of the offender, is not alone that exces-
siv.e state of intoxication, which de-
prives a party of the capacity to frame
in his mind a design deliberately and
premeditately to do an act ; for the
court says that, in the state of drunk-
enness referred to, a party well may be
guilty of killing wilfully, deliberately,
maliciously, and premeditately ; and,
if he so kill, he is guilty as though he
were sober. The principle laid down
by the court is, that, when the question
is, can drunkenness be taken into con-
sideration in determining whether the
party be guilty of murder in the second
degree, the answer must be, that it
cannot ; but, when the question is,
what was the actual mental state of
the perpetrator, at the time the act
was done, was it one of deliberation
and perpetration, then it is competent
to show any degree of intoxication that
may exist, in order that the jury may
judge, in view of such intoxication,

209



§ 215.] MENTAL UNSOUNDNESS IN ITS LEGAL RELATIONS,

Same view that, though drunkenness is no excuse for crime, it may be

taken in , . , i i • • -, ■ ^

England as taken into account by the jury when considering the
Infmt.^ motive or intent of a person acting under its influence.^
So, also, in an Ohio case, it was very properly held that,
when the charge was knowingly passing counterfeit money with
intent to cheat, the drunkenness of the defendant at the time of the



in connection with all the other facts
and circumstances, whether the act
was premeditately and deliberately
done. The law often implies malice
from the manner in which the killing
was done, or the weapon with which
the blow was stricken. In such case
it is murder, though the perpetrator
were drunk. And no degree of drunk-
enness will excuse in such case, unless
by means of drunkenness an habitual
or fixed madness be caused. The law
in such cases does not seek to ascertain
the actual state of the perpetrator's
mind, for, tlie fact from which it is
implied having been proved, the law
presumes its existence, and proof in
opposition to this presumption is irre-
levant and inadmissible. Hence a
party cannot show he was so drunk as
not to be capable of entertaining a
malicious feeling. The conclusion of
law is against him. But, when the
question is, whether a party is guilty
of murder in the first degree, it be-
comes indispensable that the jury
should form an opinion as to the ac-
tual state of mind with which this act
was done. All murder in the first de-
gree (except that committed by poison,
and by lying in wait) must be per-
petrated wilfully, deliberately, mali-
ciously, and premeditately. The jury
must ascertain, as a matter of fact,
that the accused was in this state of
mind when the act was done. Now,
according to the cases of Swan v. The
State, and Pirtle v. The State, any fact
that will shed light upon this subject
may be looked to by them, and may

210



constitute legitimate proof for their
consideration. And among other facts,
any state of drunkenness being proved,
it is a legitimate subject of inquiry, as
to what influence such intoxication
might have had upon the mind of the
offender, in the perpetration of the
deed. We know that an intoxicated
man will often, upon a slight provoca-
tion, have his passions excited and
rashly perpetrate a criminal act. Now,
it is unphilosophical for us to assume
that such a man would, in the given
case, be chargeable with the same de-
gree of premeditation and deliberation
that we would ascribe to a sober man,
perpetrating the same act upon a like
provocation. It is in this view of the
question, that this court held, in
Swan's case and in Pirtle's case, that
the drunkenness of a party might be
looked to by the jury, with the other
facts in the case, to enable them to de-
cide whether the killing was done de-
liberately and premeditately. But his
honor, the circuit judge, told the jury,
that drunkenness was an aggravation
of the offence, unless the defendant



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