tion the same which sometimes arises preliminarily to the trial; namely, whether the prisoner is mentally capable of making his defence; for, if he is not, the court cannot go on with the case;1 nor, if he becomes insane after the trial commences, can he be either sentenced, or, if sentenced, punished, while his insanity continues.2

1 Freeman v. People, 4 Denio, 9; Reg. v. Goode, 7 A. & E. 536; Rex v. Pritchard, 7 Car. & P. 303; Rex v. Dyson, 1 Lewin, 64; Jones v. The State, 13 Ala. 153.

Freeman v. People, 4 Denio, 9; Jones v. The State, 13 Ala. 153; Shelford Lun. 467; Bonds v. The State, Mart. & Yerg. 143; The State v. Brinyea, 5 Ala. 241; People v. Lake, 2 Parker, 215. Dr. Ray has well observed: "No cases subject to legal inquiry are more calculated to puzzle the understandings of courts and juries, to mock the wisdom of the learned, and baffle the acuteness of the shrewd, than those connected with questions of imbecility;" and he might have added, insanity generally. See Ray Med. Jurisp. Insan. 3d ed. § 104.

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CHAPTER XXIII.

DRUNKENNESS.

§ 298. IF our subject had been divided in a strictly philosophical way, the matter of drunkenness would have received treatment under previous titles. Its separate consideration, however, is most convenient for both writer and reader. Mere private intoxication, with no act beyond, is not indictable at the common law; yet the law has always regarded drunkenness as being, in a sense, criminal. And we have seen, that, where a man intending one wrong does another unintentionally, the intention and the act coalesce, and he is punishable for what he does.2 Nor need the thing intended be indictable, provided the thing done is so.3 Hence when a man voluntarily becomes drunk, there is the wrongful intent; and if, while too far gone to have any further intent, he does a wrongful act, the intent to drink coalesces with the act done while drunk, and for this combination of act and intent he is criminally liable. It is therefore a legal doctrine, that voluntary intoxication furnishes no excuse for crime committed under its influence.4 Yet "if a party be made drunk by

1 The State v. Deberry, 5 Ired. 371; The State v. Waller, 3 Murph. 229. See Smith v. The State, 1 Humph. 396; Hutchinson v. The State, 5 Humph. 142; Vol. II. § 265, 266.

Ante, § 254.

Ante, § 257.

4 People v. Pine,

Barb. 566, 570; The State v. Bullock, 13 Ala. 413; The State v. John, 8 Ired. 330; The State v. Stark, 1 Strob. 479; The State v. Turner, Wright, 20, 30; United States v. Cornell, 2 Mason, 91, 111; Rex v. Ayers, Russ. & Ry. 166; Burrow's case, 1 Lewin, 75; Rennie's case, 1 Lewin, 76; Pearson's case, 2 Lewin, 144; United States v. Forbes, Crabbe,

stratagem, or the fraud of another," or the unskilfulness of his physician, "he is not responsible." 1

§ 299. We have seen, that there are offences which, from their peculiar nature, are committed only when the act is joined to a particular intent.2 Here manifestly, if, without the intent, one by drink makes himself incapable of entertaining the intent, and so does the act; but never, then or afterward, yields the sanction of his will; he does not commit the particular offence, one ingredient in which is wanting, whatever other criminal responsibility he may incur. Thus, a bare intentional trespass not being larceny, but the specific intent to steal being necessary also, if one who is too drunk to entertain this specific intent takes property, relinquishing it before the intent could arise in his mind, there is no larceny. In like manner, a man passing counterfeit money is not liable criminally, if too drunk to know it is counterfeit, or, consequently, to entertain the intent to defraud. The principle was well expressed by Reese, J., in

558; Schaller v. The State, 14 Misso. 502; Pennsylvania v. McFall, Addison, 255, 257; Respublica v. Weidle, 2 Dall. 88; United States, v. Drew, 5 Mason, 28; Whitney v. The State, 8 Misso. 165; Pirtle v. The State, 9 Humph. 663; Haile v. The State, 11 Humph. 154; Cornwell v. The State, Mart. & Yerg. 147; Swan v. The State, 4 Humph. 136; Broom Leg. Max. 2d ed. 13.

1 Parke, J., in Pearson's case, 2 Lewin, 144; 1 Russ. Crimes, Grea. Ed. 2; 1 Hale P. C. 32; People v. Robinson, 2 Parker, 235.

4 Rex v. Pitman, 2 Car. & P. 423. See Commonwealth v. French, Thacher Crim. Cas. 163.

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Pigman v. The State, 14 Ohio, 555; United States v. Roudenbush, 1 Bald. 514, 517, where Baldwin, J., observed to the jury: "Intoxication is no excuse for crime, when the offence consists merely in doing a criminal act, without regarding intention. But when the act done is innocent in itself, and criminal only when done with a corrupt or malicious motive, a jury may, from intoxication, presume that there was a want of criminal intention; that the reasoning faculty, the power of discrimination between right and wrong, was lost in the excitement of the occasion. But if the mind still acts, if its reasoning and discriminating faculty remains, a state of

the Supreme Court of Tennessee, thus: "When the nature and essence of a crime are made, by law, to depend upon the. peculiar state and condition of the criminal's mind at the time, and with reference to the act done, drunkenness, as a matter of fact affecting such state and condition of the mind, is a proper subject for consideration and inquiry by the jury. The question in such case is, what is the mental status ?" 1

$300. Perhaps no better illustration of one branch of the foregoing doctrine can be given than to state its application in cases of homicide. The law divides all indictable homicides into murder and manslaughter; but the specific intent to kill is not necessary in either. A man may be guilty of murder without intending to take life; he may be guilty of manslaughter without so intending; or he may intend to take life, yet not commit any crime in taking it. Now the doctrine of the courts is, that the intention to drink may fully supply the place of malice aforethought; so that, if one voluntarily becomes so drunk as not to know what he is about, and then with a deadly weapon kills a man, the killing will be murder, the same as if he were sober. In other words, the mere fact of drunkenness will not alone reduce to manslaughter a homicide which would otherwise be murder,

partial intoxication affords no ground of a favorable presumption in favor of an honest or innocent intention, in cases where a dishonest and criminal intention would be fairly inferred from the commission of the same acts when sober. The simple question is, Did he know what he was about? The law depends on the answer to this question. . . . . If you shall believe, that, when he received these notes at Shive's, he was in such a state of intoxication as not to know what he was giving or what he was receiving in exchange, then you may say that he did not receive them as known counterfeits; and before you can find him guilty will require, besides proof of his passing them as true, proof of his knowledge that they were false."

1 Swan v. The State, 4 Humph. 136, 141. S. P., Kelly v. The State, 3 Sm. & M. 518; Reg. v. Cruse, 8 Car. & P. 541, 546; Haile v. The State, 11 Humph. 154; Pirtle v. The State, 9 Humph. 663; Reg. v. Moore, 3 Car. & K. 319.

much less extract from it altogether its indictable quality.1

§ 301. But in some of the States, murder is divided by statute into two degrees; one of the criteria to distinguish the first from the second degree being, that the first requires for its commission the specific intent to kill. And the courts hold, that, where the prisoner is shown to have been so drunk, when he did the deed, as not to be capable of entertaining this specific intent, his offence of murder is only in the second degree.2

§ 302. In like manner, returning to the common law distinction between murder and manslaughter, there are circumstances in which evidence of intoxication may properly be received to reduce the homicide to manslaughter. Some judges seem not willingly to yield this point; but the better

3

1 Reniger v. Fogossa, Plow. 1, 19; Beverley's case, 4 Co. 123; United States v. Cornell, 2 Mason, 91, 111; Haile v. The State, 11 Humph. 154; Pirtle v. The State, 9 Humph. 663; Pennsylvania v. McFall, Addison, 255, 257; Rex v. Carroll, 7 Car. & P. 145; Rex v. Ayres, Russ. & Ry. 166; The State v. Bullock, 13 Ala. 413; The State v. John, 8 Ired. 330; Rex v. Meakin, 7 Car. & P. 297; Mercer v. The State, 17 Ga. 146; People v. Fuller, 2 Parker, 16; People v. Robinson, 1 Parker, 649; Carter v. The State, 12 Texas, 500; Commonwealth v. Hawkins, 3 Gray, 463.

Pirtle v. The State, 9 Humph. 663; Haile v. The State, 11 Humph. 154 ; Gwatkin v. Commonwealth, 9 Leigh, 678; Swan v. The State, 4 Humph. 136; The State v. Bullock, 13 Ala. 413; Pigman v. The State, 14 Ohio, 555; Cornwell v. The State, Mart. & Yerg. 147; People v. Hammill, 2 Parker, 223; People v. Robinson, 2 Parker, 235; Kelly v. The State, 3 Sm. & M. 518. Respecting assaults with intent to murder, we shall see in another chapter, post, § 515, that there is a difference of judicial opinion, whether, to constitute in law the offence, it is necessary for the specific intent to exist; or whether it is sufficient if there is an assault under such circumstances, that it will be murder if death ensues. Where the former view is taken, the doctrine of the text applies; where the latter, it does not. See The State v. Bullock, supra; Reg. v. Crusc, 8 Car. & P. 541, 546.

* See Commonwealth v. Hawkins, 3 Gray, 463; and other cases cited ante, § 300.