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mitte by a party while in a fit of intoxication, the law allowing not a man to avail himself of the excuse of his own gross vice and misconduct to shelter himself from the legal consequences of such crime." This doctrine has been reaffirmed repeatedly since. It has been definitely settled that voluntary drunkenness that merely excites the passions and stimulates men to the commission of crimes, in a case of homicide by one in such a condition without any provocation, neither excuses the offence nor mitigates the punishment.2

2369.

Drunkenness as affecting Intention or Malice.Here, however, we see a new element introduced into the consideration of this question. Although voluntary drunkenness does not excuse but rather aggravates the crime, may not the fact that the man was drunk at the time the crime was committed bear very materially on the question as to the intention and malice? May not drunkenness be considered in connection with the question of provocation? These are, in a medico-legal point of view, most important questions, and merely upon the grounds of justice and common sense one would be inclined to answer both in the affirmative. Luckily, however, there are guiding decisions which leave no room for doubt. Thus a case, already referred to, decided that although drunkenness is no excuse for any crime a drunken man may commit, still where provocation by a blow has been given to a person who kills another with a weapon which he happens to have in his hand, the drunkenness of the prisoner may be considered on the question whether he was excited by passion or actuated by malice; and it was further held that it may be considered on the question whether expressions used by the prisoner manitested a deliberate purpose, or were merely the idle expressions of a drunken man. In

See also People v. Lewis, 36 Cal. 531; State v. Cross, 27 Mo. 332; McIntyre v. People, 38 Ill. 514; People v. Garbutt, 17 Mich. 19; U. S. v. Clarke, 2 Cranch C. C. R. 158; U. S. v. McGlue, 1 Curtis, 1; Cornwell v. State, Mar. & Yer. 147; Kelley v. State, 3 Smedes & Mar. 518; Pirtle v. State, 9 Hump. 663; State v. Jolin, 8 Ired. 330; Schaller v. State, 14 Mo. 502. See also Wharton's Criminal Law, § 40; Rogers' Case, 7 Metc. 500; Friery v. People, 54 Barbour, 319.

Shannahan v. Commonwealth, 8 Bush (Ky.) 464.

Rex v. Grindley, Worcester Sum. Ass. 1819, 1 Russell on Crimes, 12.
Rex v. Thomas, 7 Car. & P. 817.

another case, it was expressly decided that it was proper that the jury should take the fact of drunkenness into consideration when considering the motive or intent of a person acting under its influence.' So where, on the trial of an indictment for an attempt to commit suicide, it appeared that the prisoner was at the time of the alleged offence so drunk that she did not know what she did, it was held that this negatived the attempt to commit suicide. So in Rex v. Meakin, it was decided that in a stabbing case, where the person has used a deadly weapon, the fact that he was drunk does not at all alter the nature of the case; but if he had intemperately used an instrument not in its nature deadly when he was drunk, the fact of his being drunk might be evidence to induce the jury less strongly to infer a malicious intent at the time. There Alderson, B., said: "It is my duty to tell you that the person being intoxicated does not alter the nature of the offence. If a man chose 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. That voluntary species of madness which it is in the party's power to abstain from, he must answer for. However, with regard to the intention, drunkenness may perhaps be adverted to according to the nature of the instrument used. If a man uses a stick, you would not infer a malicious intent against him, if drunk when he made an intemperate use of it, as you would if he had used a different kind of weapon; but where a dangerous instrument is used, which, if used must produce grievous bodily harm, drunkenness can have no effect on the consideration of the malicious intent of the party." Here, again, American law has wisely followed the English rule. Thus it has been held that where a statute makes an offence to consist of an act committed with a particular intent, the rule that voluntary intoxication does not excuse acts which constitute an offence, includes only the consequences which do actually follow the crime actually committed, and not the intent charged, if the defendant was at the time incapable of entertaining it, and did not in fact en

Reg. v. Gamlen, 1 Foster & F. 90.

Reg. v. Moore, 3 C. & K. 319; 16 Jur. 750.

37 Car. & P. 297. See also Reg. v. Crure, 8 Car. & P. 546. See also Law Times, 27th Sept. 1845, p. 542.

tertain it. And again, in another case, where the rule that intoxication is an aggravation of, rather than an excuse for, crime was admitted; and where it was held that, short of destroying reason altogether, it was not in any case a full defence, the principle that where drunkenness is so great as to render it impossible for a man to form any complete design, the law allows it to reduce the grade of homicide from murder of the first degree to murder of the second. But in that case the burden of proof is on the prisoner."

370. Responsibility of Persons whose Drunkenness is Involuntary.-If the person who commits a crime under the influence of drunkenness is not in a condition of voluntary intoxication, if his helpless or insane condition is due to the fraud of others, then he will of course be looked upon as irresponsible in the eye of the law. A very nice question arises in this place. We will in the following paragraphs have to consider the responsibility of those persons who have become insane through the long-continued use of intoxicating liquors, and we shall see that the law holds these upon good and sufficient grounds to be irresponsible. But there is a class between those who are insane through habit and those who get voluntarily drunk, the legal relations of which it is important to determine. It is, as we have seen, well known [255] that there are cases where, owing to some physical injury done to the head of an individual, a very small amount of stimulation will produce drunkenness, and drunkenness will lead to a fit of temporary insanity. The law of England makes no distinction between an act committed by an individual affected in this way and the act of an ordinary drunkard. But what is law is not always right. It is evident that if through some bodily infirmity a man, under the infiuence of a small quantity of stimulants, becomes insane, any act he may commit during such temporary insanity is partly due to the infirmity as well as to the voluntary act by which he submitted

Roberts r. People, 19 Mich. 401; also, Reg. v. Cruse, 8 Car. & P. 541. See also Tirtle v. State, 9 Hamp. 663; Nichols v. State, 8 Ohio St. 435; People v. Harris, 29 Cal. 678; Curry r. Com. 2 Bush (Ky.) 67; Rex v. Grindley, Worcester Sum. Ass. 1819; 1 Russell Crimes, p. 12.

* Commonwealth v. Hart, 2 Brews. Pa. 546. See Pigman v. State, 14 Ohio, 555.

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himself to the influence of the intoxicating liquors. It may be argued that the man might have refrained, and that if distinction was to be drawn between his and any ordinary case of drunkenness there could be no reason for not taking the capacity of each individual to take stimulants into consideration in every case-that as it is a fact that men can upon one occasion drink with impunity what upon another occasion would produce drunkenness, a man might be recognized as irresponsible to-day for an act which, if committed yesterday, would have been criminal. [256] But it is not upon such grounds that a distinction should be drawn. It would unquestionably be absurd to say that any act committed by a man who got drunk after drinking, in his estimation, moderately-or drinking such a quantity as he had repeatedly imbibed without any loss of voluntary power-should be regarded as irresponsible for the criminal acts which might ensue. It is true that such fine distinctions are out of place in law, but it is also true that the law might recognize the fact that there is in almost all those cases in which temporary insanity follows upon the use of stimulants in those who have suffered from some cranial injury or diminution of the power of self-control, a loss of the capacity to judge accurately concerning acts and their consequences. So that in such a case a man does not "voluntarily make himself drunk," and if he suffers punishment for the act committed during such mental aberration he no more takes the consequences of his own acts" than a horse which is whipped because it carried a man to a place where he stole does. Since the above was written we find that this principle has been recognized in America, where it has been held that if a person be subject to a tendency to insanity which is liable to be excited by intoxication, of which he is ignorant, having no reason, from his past experience or from information derived from others, to believe that such extraordinary effects are likely to result from intoxication, he ought not to be held responsible for such extraordinary effects, and so far as the jury believe that his actions resulted from these, and not from the natural effects of the drunkenness or from previously formed intentions, the same degree of competency should be required to render him capable of entertaining or responsible for the intent as where

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the question is one of insanity alone.' We cannot but think that this is a reasonable rule, and that it will recommend itself in time to the judicial mind in England. In Scotland, this principle has been recognized; and Alison, in his Principles of the Criminal Law of Scotland,' says: "If, however, either the insanity has supervened from drinking without the panel's having been aware that such indulgence in his case leads to such a consequence; or if it has arisen from the combination of drinking with a half crazy or infirm state of mind, or a previous wound or illness which rendered spirits fatal to his intellect to a degree unusual in other men, or which could not have been anticipated, it seems inhuman to visit him with the extreme punishment which was suitable in other cases. In such a case, the proper course is, to convict, but in consideration of the degree of infirmity proved, to recommend to the royal mercy."

371. The Responsibility of those whose Insanity is Caused by Drunkenness.-We have seen that voluntary drunkenness is no excuse for crime, and we have seen that the principle of this tenet is that when a man with his eyes open puts himself in a position in which he may do harm to others, he ought to be regarded as responsible for the harm done; that although the act may be involuntary, the condition in which volition was impossible was brought about by the voluntary act of the individual, and that it must be regarded as responsible not only for the first act of a series, but for all those which necessarily and directly follow. This rule is, as we have seen, founded upon the truest principles of law. But another question follows, Does a man contemplate remote possibilities in his acts, or only proximate probabilities? If he contemplates only the latter, it wonld be wrong to make

Roberts v. People, 19 Mich. 401

2 P. 654.

* See the case of Thompson, Shaw, 129, in which counsel for the prisoner proposed that he should uncover his head in order that the jury might see the mark which was said to have been occasioned by the injury in America (he was liable to derangement, especially after drink, and more so since the injury.) This question was not allowed, because the existence of the mark prior to the time of the offence was not proved. This ruling, however, allows the inference that if its priority had been proved, the question would have been admissible.

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