By the Court, Parker, P. J.
In charging the jury, the learned judge made use of the following expression. “ It is my duty to say to you, gentlemen, that if she (the prisoner) was intoxicated to such an extent that she was unconscious of what she was doing, still the law holds her responsible for her act.” And afterwards in another portion of the charge, the judge said, “ though the prisoner may have been excited by strong drink at the time of the alleged offence, even to such an extent as not to know what she was doing, she must answer for the consequences; her self-inflicted insanity must not be allowed to avail her for her defence. The law still imputes to her a [302]*302murderous intent. Exceptions were taken by the prisoner’s counsel to each of these parts of the charge, and their alleged erroneousness constitutes the first ground on which they now rely for a reversal of the proceedings of the Oyer and Terminer.
If the proposition, that the law would hold the prisoner responsible for her act though she was intoxicated to such an extent that she was unconscious of what she was doing, stood alone and unexplained by the context, so as to be distinctly presented for adjudication, I should have no hesitation in saying that it could not be sustained, for by conceding the unconsciousness of the prisoner it contains within itself, a relinquishment of the legal presumption, that the prisoner must have intended the natural consequences of her own acts. It would, therefore, condemn the act as the result of premeditated design, when it concedes on its face that none existed. The proposition standing by itself, would apply to a person reduced by intoxication to a state of insensibility; and would impute to him a premeditated design to take life, if he should by chance kill a person by stumbling against him or by rolling against him in a gutter. It would convict of murder a drunken mother, who should smother her infant in her embrace, or by overlying it in bed, however strong might have been her affection for her offspring. It is hardly necessary to say, that no sound legal construction could bring such a transaction within the statute definition of murder, which requires, in all cases like that now before us, a premeditated design to effect death. (2 R. S. 657, § 5.)
But it is apparent that it was not the intention of the judge to lay down any such proposition. The portion of the charge excepted to must be considered with reference to the facts of the case, and in connection with other parts of the charge which are necessary to a proper understanding of its import and meaning. The offence charged was that of murder by administering poison. The defence principally relied upon was insanity. It was not claimed, nor was there any evidence to warrant a claim, that the prisoner was so much intoxicated as to be bereft of her senses or unconscious of what she was [303]*303doing. On the contrary, design was apparent throughout the whole transaction. Whether that design was conceived and entertained by a mind sober or excited by strong drink, was not material, and whether by a mind sane or insane, was a proper subject for the consideration of the jury. The whole charge taken together shows, I think, that when the judge said the law would still hold the prisoner responsible, for her act, though she was intoxicated to such an extent as to be unconscious of what she was doing, he had reference, not to a state of insensibility, but to a state of excitement or madness, the immediate consequence of indulgence in strong drinks. For, after putting a case by way of illustration, inconsistent with the construction claimed by the prisoner’s counsel, and then stating that if it appeared that by the inscrutable visitation of Providence, the faculties of a man had become so disordered that he was no longer capable of discriminating between right and wrong, in respect to the act he had committed, then the law would pronounce him innocent of crime, he added: “ But if his derangement be voluntary—if his madness be self-invited —the law will not hear him when he makes his intoxication his plea to excuse him from punishment.” The whole of this portion of the charge taken together and the explanation contained in the other part of the charge excepted to, show, very satisfactorily, that the judge intended only to charge, that self-inflicted insanity, the immediate consequence of drink, would constitute no defence; and it could, I think, have been understood by the jury in no other sense.
To that extent, the rule has long been established at common law. (4 Coke, 125; 1 Co. Litt. 247; 1 Hale, 31; 4 Black. Com. 26.) “ A drunkard ” says Lord Coke, “ hath no privilege thereby; but what hurt or ill soever he doeth, his drunkenness doth aggravate.” (Coke Litt. 247.) Russell says, (1 Russ, on Cr. 7,) “with respect to a person non compos mentis from drunkenness, a species of madness which has been termed dementia affectata, it is a settled rule, that if the drunkenness be voluntary, it can not excuse a man from the commission of any crime, but on the contrary must be considered an aggravation [304]*304of whatever he does amiss.” “ Nam omne crimen ebrietas incendit et detegit ” has become a maxim of the law. (4 Black. Com. 26.) The rule is otherwise when the drunkenness is not voluntary; as if a person by the unskillfulness of his physician, or by the contrivance of others, and without any volition or. his own part, eat or drink such a thing as causes frenzy, this puts him in the same condition as other insane persons, and equally excuses him. (Barb. Cr. L. 268.) And in cases of delirium tremens or mania apotu, the insanity excuses the act, the frenzy being, not the immediate effect of indulgence in strong drink, but a remote consequence superinduced by antecedent drunkenness. (Barb. Cr. L. 268; Dean’s Med. Jur. 587; 3 Am. Jurist? 5, 20.) These general principles are fully recognized in the modern English cases, (Rex v. Patrick, 7 Car. & P. 145; R. v, Meakin, id. 297; Burrow’s case, 1 Lewin C. C. 75; Rennie’s case, id. 76; R. v. Thomas, 8 Car. & P.820,) and also in decisions in this country, (McDonough’s case, Ryon Med. J. 294; cases cited in 1 Beck’s Med. Jur. 627; Bennett v. State, Mart. & Yerg. 133; Cornwell v. State, id. 147; Schuller v. State, 14 Miss. 502; 6 Law Rep. n. s. 563; 1 Wright’s Ohio Rep. 30; 8 Iredell, 330; Wilson’s case and Birdsall’s case, reported in Ray’s Med. Jur. § 405, 406; Kelley v. The State, 3 Smedes & Marsh, 518; U. S. v. Clarke, 2 Cranch C. C. R. 158; U. S. v. McGhee, 1 Curtis C. C. R. 1; State v. John. 8 Ired. 330; U. S. v. Drew, 5 Mason, 28.) In the latter case, Mr. Justice Story'reiterates and approves all the rules above quoted: At common law, therefore, there can be no doubt of the correctness of the charge on this point.
But it is supposed our statute has so far changed the common law definition of murder as to be inconsistent with the proposition that drunkenness does not excuse but aggravates the crime.
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By the Court, Parker, P. J.
In charging the jury, the learned judge made use of the following expression. “ It is my duty to say to you, gentlemen, that if she (the prisoner) was intoxicated to such an extent that she was unconscious of what she was doing, still the law holds her responsible for her act.” And afterwards in another portion of the charge, the judge said, “ though the prisoner may have been excited by strong drink at the time of the alleged offence, even to such an extent as not to know what she was doing, she must answer for the consequences; her self-inflicted insanity must not be allowed to avail her for her defence. The law still imputes to her a [302]*302murderous intent. Exceptions were taken by the prisoner’s counsel to each of these parts of the charge, and their alleged erroneousness constitutes the first ground on which they now rely for a reversal of the proceedings of the Oyer and Terminer.
If the proposition, that the law would hold the prisoner responsible for her act though she was intoxicated to such an extent that she was unconscious of what she was doing, stood alone and unexplained by the context, so as to be distinctly presented for adjudication, I should have no hesitation in saying that it could not be sustained, for by conceding the unconsciousness of the prisoner it contains within itself, a relinquishment of the legal presumption, that the prisoner must have intended the natural consequences of her own acts. It would, therefore, condemn the act as the result of premeditated design, when it concedes on its face that none existed. The proposition standing by itself, would apply to a person reduced by intoxication to a state of insensibility; and would impute to him a premeditated design to take life, if he should by chance kill a person by stumbling against him or by rolling against him in a gutter. It would convict of murder a drunken mother, who should smother her infant in her embrace, or by overlying it in bed, however strong might have been her affection for her offspring. It is hardly necessary to say, that no sound legal construction could bring such a transaction within the statute definition of murder, which requires, in all cases like that now before us, a premeditated design to effect death. (2 R. S. 657, § 5.)
But it is apparent that it was not the intention of the judge to lay down any such proposition. The portion of the charge excepted to must be considered with reference to the facts of the case, and in connection with other parts of the charge which are necessary to a proper understanding of its import and meaning. The offence charged was that of murder by administering poison. The defence principally relied upon was insanity. It was not claimed, nor was there any evidence to warrant a claim, that the prisoner was so much intoxicated as to be bereft of her senses or unconscious of what she was [303]*303doing. On the contrary, design was apparent throughout the whole transaction. Whether that design was conceived and entertained by a mind sober or excited by strong drink, was not material, and whether by a mind sane or insane, was a proper subject for the consideration of the jury. The whole charge taken together shows, I think, that when the judge said the law would still hold the prisoner responsible, for her act, though she was intoxicated to such an extent as to be unconscious of what she was doing, he had reference, not to a state of insensibility, but to a state of excitement or madness, the immediate consequence of indulgence in strong drinks. For, after putting a case by way of illustration, inconsistent with the construction claimed by the prisoner’s counsel, and then stating that if it appeared that by the inscrutable visitation of Providence, the faculties of a man had become so disordered that he was no longer capable of discriminating between right and wrong, in respect to the act he had committed, then the law would pronounce him innocent of crime, he added: “ But if his derangement be voluntary—if his madness be self-invited —the law will not hear him when he makes his intoxication his plea to excuse him from punishment.” The whole of this portion of the charge taken together and the explanation contained in the other part of the charge excepted to, show, very satisfactorily, that the judge intended only to charge, that self-inflicted insanity, the immediate consequence of drink, would constitute no defence; and it could, I think, have been understood by the jury in no other sense.
To that extent, the rule has long been established at common law. (4 Coke, 125; 1 Co. Litt. 247; 1 Hale, 31; 4 Black. Com. 26.) “ A drunkard ” says Lord Coke, “ hath no privilege thereby; but what hurt or ill soever he doeth, his drunkenness doth aggravate.” (Coke Litt. 247.) Russell says, (1 Russ, on Cr. 7,) “with respect to a person non compos mentis from drunkenness, a species of madness which has been termed dementia affectata, it is a settled rule, that if the drunkenness be voluntary, it can not excuse a man from the commission of any crime, but on the contrary must be considered an aggravation [304]*304of whatever he does amiss.” “ Nam omne crimen ebrietas incendit et detegit ” has become a maxim of the law. (4 Black. Com. 26.) The rule is otherwise when the drunkenness is not voluntary; as if a person by the unskillfulness of his physician, or by the contrivance of others, and without any volition or. his own part, eat or drink such a thing as causes frenzy, this puts him in the same condition as other insane persons, and equally excuses him. (Barb. Cr. L. 268.) And in cases of delirium tremens or mania apotu, the insanity excuses the act, the frenzy being, not the immediate effect of indulgence in strong drink, but a remote consequence superinduced by antecedent drunkenness. (Barb. Cr. L. 268; Dean’s Med. Jur. 587; 3 Am. Jurist? 5, 20.) These general principles are fully recognized in the modern English cases, (Rex v. Patrick, 7 Car. & P. 145; R. v, Meakin, id. 297; Burrow’s case, 1 Lewin C. C. 75; Rennie’s case, id. 76; R. v. Thomas, 8 Car. & P.820,) and also in decisions in this country, (McDonough’s case, Ryon Med. J. 294; cases cited in 1 Beck’s Med. Jur. 627; Bennett v. State, Mart. & Yerg. 133; Cornwell v. State, id. 147; Schuller v. State, 14 Miss. 502; 6 Law Rep. n. s. 563; 1 Wright’s Ohio Rep. 30; 8 Iredell, 330; Wilson’s case and Birdsall’s case, reported in Ray’s Med. Jur. § 405, 406; Kelley v. The State, 3 Smedes & Marsh, 518; U. S. v. Clarke, 2 Cranch C. C. R. 158; U. S. v. McGhee, 1 Curtis C. C. R. 1; State v. John. 8 Ired. 330; U. S. v. Drew, 5 Mason, 28.) In the latter case, Mr. Justice Story'reiterates and approves all the rules above quoted: At common law, therefore, there can be no doubt of the correctness of the charge on this point.
But it is supposed our statute has so far changed the common law definition of murder as to be inconsistent with the proposition that drunkenness does not excuse but aggravates the crime.
In those states in which murder has'been divided by statute into degrees, it has been held, that if the accused was intoxicated to such an extent' as to deprive him of the power to form a design, the offence would be no more than murder in the second degree. In Pennsylvania, murder in the first degree is [305]*305where the offence is perpetrated by means of poison, or by lying in wait, or in perpetrating or attempting to perpetrate any arson, rape, robbery or burglary, or by any other willful, deliberate and premeditated killing, and is punishable with death. Murder in the second degree, in that state, embraces “ all other kinds of murder,” and' is punishable by solitary confinement, at labor in the penitentiary. {Perm. Stat. 1794.) In that state, it was held in the case of Haggerty, tried at the Lancaster Oyer and Terminer in 1847, that the prisoner could not be convicted in the first degree, if deprived by voluntary intoxication, of the power to form a deliberate design- to perpetrate the act. The very able charge of the learned President Judge in that case will be found reported at length in Lewis’s U. S. Cr. Law, 402. A similar opinion was expressed by Mr. Justice Daniel in the Commonwealth v. Jones, (1 Leigh, 612,) the statute of Virginia, on the subject of murder, being substantially like that of Pennsylvania. (Virginia Stat. 1796.) In Tennessee also, where a like division of murder into degrees is made by statute, it was held in Haile v. The State, (11 Humph. 154,) that in all cases where the question is between murder in the first degree and murder in the second degree, the fact of drunkenness may be proved, to shed light' upon the state of mind of the defendant, so as to enable the jury to determine whether the killing sprung from a premeditated purpose, or from passion excited by inadequate provocation; and the degree of drunkenness need not be such that it deprives the defendant of the capacity to form a deliberate and premeditated design to take life. All these cases proceed upon the principle expressly declared by Judge Reese in Swan v. The State, (4 Humph. 136,) that 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 upon the peculiar state and condition of the criminal’s mind at the time, and with reference to the act 'done, drunkenness may be a proper subject for the consideration of the jury.
All these decisions to which I have referred, as being made [306]*306in states where, by statute, murder is divided into degrees, were made in cases where death was caused by violence and where it became necessary to ascertain whether the act was deliberate and premeditated, so as to fall within the first degree. I am by no means prepared to hold that it might not be proper under our own statute to show the degree of drunk enness of the accused, for the purpose of ascertaining whether he had the power to premeditate the act, though, in the case of Haggerty above cited, Lewis, J., expresses the opinion that it is only in those states where murder is divided into degrees that drunkenness ’ can be set up as a defence. (Lewis'’ Cr. L. 405.) Our statute has not divided the crime of murder into degrees, but it has limited and defined the offence; and a case can not be brought within the first subdivision of the section unless there be a premeditated design, in fact, to effect the death of the person killed or of some human being. The proposition laid down in Swan v. The State, seems to me to be incontrovertible and to be universally applicable, viz: that-where the nature and essence of the crime are made by law to depend upon the peculiar state and condition of the criminal’s mind at the time with reference to the act done, drunkenness may be a proper subject for the consideration of the jury, not to excuse or mitigate the offence but to show that it was not committed. There are many cases recognizing this distinction. (Rex v. Grindley, 1 Russ, on Cr. 7, subsequently questioned in Rex v. Carrol, 7 Car. & P. 145; Regina v. Moore, cited 6 Law Rep. N. S. 561; Marshall’s case, 1 Lewin C. C. 76; Regina v. Cruse, 8 Car. & P. 541; Pigman v. The State, 14 Ohio, 555; Rex v. Thomas, 7 Car. & P. 817; Rex v. Meakin, ib. 297; Pirtle v. The State, 9 Humph. 663; Add. Rep. 257; Wharton’s Law of Homicide, 369; Wharton’s Cr. L. 92.
But it is only in cases where death is caused by personal violence that it becomes necessary even in those states where murder is divided into degrees to inquire whether the act was deliberate and premeditated, for the purpose of ascertaining the degree. For in all these states “ poisoning ” is specially placed under the head of murder in the first degree. Even in [307]*307Pennsylvania, Virginia and Tennessee, the defence of drunkenness could not, if proved, reduce the offence to murder in the second degree. The very term “ poisoning ” implies design and could not be criminally committed by a person in such a state of mind as to preclude premeditation. No case could possibly occur in which the act could be perpetrated by a person in a state of insensibility from intoxication; and the degree of drunkenness, if less than that, would not be a material subject for inquiry, for if there were enough mind left to conceive and perpetrate the act, there would be enough to subject the offender to legal responsibility.
• If, in the case before us, the prisoner mingled arsenic with the drink of Lanagan for the purpose of effecting his death, or the death of any other person, she was guilty of murder, though excited, no matter to what degree, by intoxication at the time. There was no pretence that the mingling of the poison was the result of accident, but the most satisfactory evidence to the contrary. A person, stimulated even to the highest pitch of frenzy by strong drink, may still be capable of planning and executing a criminal design, and in such case, it is quite clear, that neither under our statute, any more than at common law, can drunkenness be alleged as an excuse for the act.
If I am right therefore in the construction I have put upon the language of the charge, no error was committed.
If I am wrong in that construction, and, if the abstract proposition excepted to can not properly be considered as modified and explained by other parts of the charge, still it seems to me the exception taken is not available under the decision of the Court of Appeals in the case of Shorter v. The People, (2 Comst. 173.) The proposition excepted to standing alone and as interpreted by thé prisoner’s counsel had no applicability whatever to the case, and could have no influence on the minds of the jury. There was not a fact or circumstance in the case to warrant an inference that the accused was in a state of unconsciousness or insensibility from intoxication. No case was presented calling for any expression of opinion on [308]*308such a state of mind. If' therefore the charge was erroneous in that respect, under the authority last cited, it would not furnish a legal ground for awarding a new trial.
It is secondly alleged for error, by the counsel for the pri soner, that the omission of the district attorney to issue a precept to-the sheriff of Rensselaer county, twenty days before the Court of Oyer and Terminer was held, requiring him, among other things, to summon a grand jury, was an omission fatal to the conviction in this case. This objection applies only to the grand jury, and not to the petit jury, before "whom the issue was tried at a subsequent court. It is not claimed that there was any irregularity in drawing or summoning the grand' jury. There has been no omission at all affecting the substantial rights of the prisoner. Every thing was done by the sheriff which he would have done if a precept had been issued' and as he would have done it. At most, therefore, the objection is merely technical and was not made in form until since conviction.
In the view that I take of this objection, I do not propose to examine or decide whether the requirement of the statute (2 R. S. 206, § 37) is applicable to the stated courts of Oyer and Terminer or only to extraordinary courts of Oyer and Terminer and jail delivery, specially appointed: nor whether,, if applicable to the former, it is intended to take the place of the venire, with all the incidents belonging to that process at common law, or is merely directory; nor the other questions which were so fully and ably discussed by counsel on the argument and which would properly have arisen before the court of Oyer and Terminer on a plea in abatement or a motion to quash the indictment for the alleged defect. Independent of these questions, it seems to me to be an obvious and conclusive answer to the supposed error that it is too late now to make the objection. The most that can be claimed for the alleged defect is, that it was an irregularity in the proceeding to organize the grand jury in no respect bringing in question the qualifications of the grand jurors or their fairness towards the accused. No injustice has been done to the prisoner. And [309]*309now, after pleading to the merits, and after trial and conviction, this mere irregularity is for the first time suggested.
No adjudged case has been brought to our notice in which it has been held that the want of a precept as to the grand jury was available after verdict. In the People v. McGuire,
The statute has limited the grounds of challenge to individual grand jurors and required such challenges to be made before the jurors are sworn, (2 R. S. 724, § 27,) and (id. § 28) it has abolished challenges of grand jurors to the array. Judge Nelson is said to have held in the Circuit Court of the U. S. in the- [310]*310“ Jerry rescue” cases, that by taking away the right to challenge grand jurors to the array, the statute had, by implication, taken away the right to raise the objection in any form. But, in the case of the People v. McGuire, Mr. Justice Pratt expresses his dissent from such a conclusion. At the least, I think it is fair to say that the statute seems to discourage objections to the grand jury, who can do no more than make the accusation.
We are not without authority for holding that it is too late to raise a question of this character, for the first time, after conviction.
In the People v. Griffin, ( 2 Barb. S. C. R. 427,) after the petit jury had been impanneled and the case on the part of the people had been gone through with, the defendant sought to avail himself of the objections, that the presiding judge was not present when the clerk administered the oath to the grand jury who found the hill of indictment, and that the required oath was not administered at all to some of the grand jurors: but the Supreme Court said “the objection was clearly too late,, and it would have been unprecedented to allow this collateral issue to be raised at so late a period.”
In Wa-Kon-chaw-neck-Kaw v. The United, States, (1 Morris Iowa Rep. 332,) one of the grounds of error was that the record did not show that the indictment was endorsed by the foreman of the grand jury as “ a true bill; ” and it was held, that the endorsement required by statute was merely directory, and that if there was other proof on the record that the grand jury returned the bill, it was sufficient. That the object of the bill of indictment was merely to put the party accused upon his trial, and that after a defendant had so far admitted the sufficiency of the indictment as to consent to go to trial, especially after the unanimous verdict of the petit jury, it was too late to question the irregularity of the proceedings’ by which he was put on trial. In that case the court refused to "follow the decision in Webster's case (5 Greenleaf, 432,) where a similar omission was held fatal on motion in arrest, the court in Maine having treated it as a defective indictment.
[311]*311In the State v. Underwood, (5 Iredell, R. 96) and State v. Duncan, (ib. 98.) a new trial was moved for, on the ground that the grand jury had been drawn by a boy of thirteen years of age, in violation of the statute, and that such illegal drawing might have affected the composition of the petit jury, and it was decided that the objection, if a valid one at any time, came too late, and that it should have been made before the petit jury was sworn, in the form of a challenge to the array.
And it seems to be well settled in most of the states that an objection to the qualification of grand jurors, or to the mode of summoning or impanneling them, must be made by a motion to quash or by a plea in abatement, before pleading in bar. (State v. Martin, 2 Iredell, 101; State v. Lamon, 3 Hawks, 175; State v. Herndon, 5 Blackf. 75; Vattell v. State, 4 ib. 72; State v. Freeman, 6 ib. 248; State v. Seaborn, 4 Dev. 305. On this subject see also, Wharton's Cr. L. 3d ed. 226, 229, 975; Arch. Cr. Pl. 67; 9 Mass. 107; Com. v. Chauncey, 2 Ashmead, 90.) By our statute (2 R. S. 728,) no trial, judgment or proceeding on an indictment can be affected by reason of any defect or impefection in matters of form which shall not tend to the prejudice of the defendant.
Having came to the conclusions above expressed, this case presents no point in our judgment, which would require, cr authorize this court to grant a new trial. It may be, as is claimed by the defence, that the evidence of insanity strengthened by the absence of any apparent motive for the act called for a different verdict, but if the jury erred on that question of fact, this court has no power to correct the error. The only remedy for such a mistake lies with the Oyer and Terminer, on a motion for a new trial, (1 Park. C. R. 625,) or with the executive, on an application for pardon.
Proceedings of the Oyer and Terminer affirmed and order made that the indictment, bill of exceptions, and all the proceedings be remitted to the court below, to the end that judgment might be rendered on the verdict. (2 R. S. 741, § 24; 11 Wend. R. 568.)
Vide supra page 148.