jurisprudence has long recognized the presence of an inexorable law, which refuses to admit mere intoxication as an excuse for crime. Tidwell v. State, 70 Ala. 33; State v. Bullock, 13 Ala. 413; Friery v. People, 54 Barb. 319; People v. Robinson, 1 Park. Crim. Rep. 649; State v. Thompson, 12 Nev. 140; Shannahan v. Com. 8 Bush, 464; State v. Turner, Wright (Ohio) 20; United States v. Drew, 5 Mason, 28; Boswell v. Com. 20 Gratt. 860; State v. Mullen, 14 La. Ann. 577; Rafferty v. People, 66 Ill. 118; McKenzie v. State, 26 Ark. 335; State v. Keath, 83 N. C. 626; People v. Williams, 43 Cal. 344; Choice v. State, 31 Ga. 424; State v. Hurley, 1 Houst. Crim. Cas. 28; People v. Porter, 2 Park. Crim. Rep. 14; Mercer v. State, 17 Ga. 146; People v. Willey, 2 Park. Crim. Rep. 19; Estes v. State, 55 Ga. 30; State v. Harlow, 21 Mo. 446; Marshall v. State, 59 Ga. 154; People v. Fuller, 2 Park. Crim. Rep. 16; Kenny v. People, 31 N. Y. 330; O'Brien v. People, 48 Barb. 274; Com. v. Hawkins, 3 Gray, 463; People v. Rogers, 18 N. Y. 9, 72 Am. Dec. 484; Com. v. Dougherty, 1 Browne, App. 20; People v. Garbutt, 17 Mich. 9, 97 Am. Dec. 162; Com. v. Hart, 2 Brewst. 546; Golden v. State, 25 Ga. 527; 1 Russell, Crimes, 12; 2 Bl. Com. 25; Coke, Inst. 274a.

The foregoing adjudications sufficiently indicate the extended. prevalence of the rule, any serious modification of this view would be dangerous to and subversive of public welfare. But in many cases evidence of intoxication is admissible with a view to the question whether a crime has been committed; or where a crime, consisting of degrees, has been committed, such evidence may be important in determining the degree. Thus an intoxicated person may have a counterfeit bank bill in his possession for a lawful purpose, and, intending to pay a genuine bill to another person, may, by reason of such intoxication, hand him the counterfeit bill. As intent, in such case, is of the essence of the offense, it is possible that in proving intoxication you go far to prove that no crime was committed. Pigman v. State, 14 Ohio, 555, 45 Am. Dec. 558; Cline v. State, 43 Ohio St. 332.

A man who voluntarily puts himself in a condition to have no control of his actions must be held to intend the consequences. The safety of the community requires this rule. Intoxication is so easily counterfeited, and when real is so often resorted to as a means of nerving a person up to the commission of some desperate

act, and is withal so inexcusable in itself, that law has never recognized it as an excuse for crime. Hopt v. Utah, 104 U. S. 631, 26 L. ed. 873.

This exact question was before the New York court of appeals in the case of People v. Rogers, 18 N. Y. 18, 72 Am. Dec. 484. In delivering the judgment of the court in that case Chief Justice Denio, says: "When a principle in law is found to be well established by a series of authentic precedents, and especially where there is no conflict of authority, it is unnecessary for the judges to vindicate its wisdom or policy. It will, moreover, occur to every mind that such a principle is absolutely essential to the protection of life and property. In the forum of conscience there is no doubt considerable difference between a murder deliberately planned and executed by a person of unclouded intellect and the reckless taking of life by one infuriated by intoxication, but human laws are based upon considerations of policy, and look rather to the maintenance of personal security and social order, than to an accurate discrimination as to the moral qualities of individual 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 and to society, to say nothing of more solemn obligations, to preserve, so far as it lies in his own power, the inestimable gift of reason. If it is perverted or destroyed by fixed disease, though brought on by his own vice, 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 considered censurable for any injury which in that state he may do to others or to society."

The same doctrine was long since enunciated by that eminent judge, Lord Mansfield, who said, in the celebrated case of The Chamberlain of London v. Evans, in the House of Lords, February 4, 1767, that a man shall not be allowed to plead that he was drunk in bar of criminal prosecution, though, perhaps, he was at the time as incapable of the exercise of reason as if he had been insane, because his drunkenness was itself a crime, he shall not be allowed to excuse one crime by another." It is a settled maxim of the law "that a man shall not disable himself."

Mr. May, in his Criminal Law, § 22, says: "When, however, in the course of trial, a question arises as to the particular state of

the mind of the accused at the time when he committed a crimeas, for instance, whether he entertained a specific intent, or had express malice, or was acting with deliberation-the fact of intoxication becomes an admissible element to aid in its determination; not as an excuse for the crime, but as a means of determining its degree. If a man be so drunk as not to know what he is doing, he is incapable of forming any specific intent." Lancaster v. State, 2 Lea, 575.

Continued and excessive drunkenness may render the accused incapable of forming or entertaining the specific intent which is a material ingredient of the statutory offense of an assault with intent to murder. Ross v. State, 62 Ala. 224.

§ 388. Presumption of Sanity Obtains.-The accused must be presumed to be sane till his insanity is proved. It is not every kind or degree of insanity which exempts from punishment. If the accused understood the nature of the act; if he knew it was wrong and deserved punishment, he is responsible. Experts are not allowed to give their opinions on the case, where its facts are controverted; but counsel may put to them a state of facts, and ask their opinions thereon. If a person suffering under delirium tremens, is so far insane as not to know the nature of his act, etc., he is not punishable. If a person, while sane and responsible, makes himself intoxicated, and, while intoxicated, commits murder by reason of insanity, which was one of the consequences of intoxication, and one of the attendants on that state, he is responsible. United States v. McGlue, 1 Curt. C. C. 1.

It would be easy to multiply citations of modern cases upon this doctrine; but it is unnecessary, as they all agree upon the main proposition, namely, that mental alienation, produced by drinking intoxicating liquors, furnishes no immunity for crime.

§ 389. New York Code Provisions.-"No act committed by a person while in a state of voluntary intoxication, shall be deemed less criminal by reason of his having been in such condition. But whenever the actual existence of any particular purpose, motive or intent is a necessary element to constitute a particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive or intent with which he committed the act." N. Y. Penal Code, § 22.

If voluntary intoxication may be considered upon the question of intent, a fortiori upon that of deliberation.

§ 390. Statement of the General Rule.-At common law, indeed, as a general rule, voluntary intoxication affords no excuse, justification or extenuation of a crime committed under its influence. United States v. Drew, 5 Mason, 28; United States v. McGlue, 1 Curt. C. C. 1; Com. v. Hawkins, 3 Gray, 463; People v. Rogers, 18 N. Y. 9, 72 Am. Dec. 484. But 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. The law has been repeatedly so ruled in the supreme judicial court of Massachusetts in cases tried before a full court. Com. v. Dorsey, 103 Mass. 412, and in well consid ered cases in courts of other states. Pirtle v. State, 9 Humph. 663; Haile v. State, 11 Humph. 154; Kelly v. Com. 1 Grant Cas. 484; Keenan v. Com. 44 Pa. 55, 84 Am. Dec. 414; Jones v. Com. 75 Pa. 403; People v. Belencia, 21 Cal. 544; People v. Williams, 43 Cal. 344; State v. Johnson, 40 Conn. 136, 41 Conn. 584; Pigman v. State, 14 Ohio, 555, 45 Am. Dec. 558. And the same rule is expressly enacted in the Penal Code of Utah, § 20: "No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition. But whenever the actual existence of any particular purpose, motive or intent is a necessary element to constitute any particular species or degree of crime, and the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive or intent with which he committed the act." Compiled Laws of Utah, of 1876, pp. 568, 569; Hopt v. Utah, 104 U. S. 631, 26 L. ed. 873.

§ 391. Instances of its Availability.-Drunkenness, although carried to the extent that it overcomes the will, and incapacities from controlling the action of the mind, is no excuse for a crime; and voluntary intoxication, although amounting to a frenzy, does not exempt one who commits a homicide without provocation, from the same construction of his conduct, and the same legal inferences upon the question of intent, as affecting the grade of

his crime, which are applicable to a person entirely sober. Flani gan v. People, 86 N. Y. 554, 40 Am. Rep. 556.

Intoxication, though not an excuse for crime, may reduce the crime of murder to the second degree. Jones v. Com. 75 Pa. 403; Com. v. Crozier, 1 Brewst. 349; Com. v. Hart, 2 Brewst. 546; Com. v. Perrier, 3 Phila. 229; Com. v. Dunlop, Lewis, Crim. L. 394; Com. v. Haggerty, Lewis, Crim. L. 402; Com. v. Baker, 11 Phila. 631; Com. v. Platt, 11 Phila. 415.

Many courts have allowed drunkenness to be shown in mitigation of the higher offense. In the case of State v. Johnson, 40 Conn. 136, the court held that intoxication, as tending to show that the prisoner was incapable of deliberation, might be given in evidence. Chief Justice Seymour dissented, and Foster, J., who tried the case below, did not sit, so that the four judges constituting the court, were in fact, equally divided. The same case came before the court again in 41 Conn. 584, and the opinion was delivered by the same judge. The court were hard pressed with the former opinion in the same case, and that it had taken a departure from the common law. But the court repelled the intimation, and declared that "we have enunciated no such doctrine," but "held on a trial for murder in first degree which under our statute requires actual express malice, the jury might and should take into consideration the fact of intoxication, as tending to show that such malice did not exist." And, in the same opinion, the judge says: "Malice may be implied from the circumstances of the homicide. If a drunken man take the life of another, unaccompanied with circumstances of provocation or justification, the jury will be warranted in finding the existence of malice, though no express malice is proved. Intoxication, which is itself a crime against society, combines with the act of killing, and the evil intent to take life which necessarily accompanies it, and altogether afford sufficient grounds for implying malice. Intoxication, therefore, so far from disproving malice, is itself a circumstance from which malice may be implied. We wish, therefore, to reiterate the doctrine emphatically, that drunkenness is no excuse for crime; and we trust it will be a long time before the contrary doctrine, which will be so convenient to criminals and evil disposed persons, who receive the sanction of this