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I do not perceive that there was any valid objection to the testimony of the witness Scott. The surgeon had testified that the injury of which the deceased died was an incised wound. The object of the prosecution was to show that it was inflicted by the defendant, and to that end it was proved that he struck the deceased immediately before he fell dead; but the witnesses who testified to this, did not see any weapon. If it could be shown that the prisoner had a knife or other similar weapon about his person at the time, such proof would considerably advance the case of the prosecution; and it was this fact which Scott swore to. He saw the handle of a knife in the prisoner's possession, as the latter attempted to draw it from his pocket, while on his way to the place where the homicide took place, and only a few minutes before that time.
The objection to the testimony of the policeman assumes that no admission by a person accused of crime, made to an officer who has him in custody, can be received. It was not pretended that any threats, promises or other inducements to make a confession had been held out to the prisoner, but the objection was placed distinctly upon the ground first mentioned. I have looked carefully into all the cases referred to by the defendant's counsel, in support
of that position, and many others, and do not find that it has ever been held that the single fact of the prisoner being in custody was sufficient to exclude his declarations, whether made to the officer or to third persons. On the contrary, many of the cases, upon the competency of confessions, show that the prisoner was in custody at the time, and the question generally has been, whether the confession was voluntary, or was influenced by what was said to him by the officer or by others. In Ward v. ThePeople (3 Hill, 395), the prisoner made an admission while in the custody of a constable; and a question having arisen, whether it ought not to be excluded in consequence of promises of impunity, held out by the prosecutor before the arrest, the court held it admissible, and it was received. The Commonwealth v.Mosler (4 Barr, 264) was likewise the case of a confession made by a prisoner while in the custody of a constable, and the point made by the defendant was, that a caution should have been given, such as is required from examining magistrates; but the court held it unnecessary, and decided that the evidence was competent. Rex v. Jane Richards (5 Carr. Payne, 318) was also the case of an admission made to a constable while holding the prisoner in custody, which was held to be competent, no inducement having been held out at the time. It is very plain that this exception cannot be sustained.
The principal exception to the judge's charge which is now relied on, relates to the consideration which should be given to the proof that the prisoner was intoxicated at the time of the homicide. The commission of crime is so often the attendant upon and the consequence of drunkenness, that we should naturally expect the law concerning it to be well defined. Accordingly we find it laid down as early as the reign of EDWARD VI (1548), that "if a person that is drunk kills another, this shall be felony, and he shall be hanged for it; and yet he did it through ignorance, for when he was drunk he had no understanding nor memory; but
inasmuch as that ignorance was occasioned by his own act and folly, and he might have avoided it, he shall not be privileged thereby." (Plowden, 19.) The same doctrine is laid down by COKE in the Institutes, where he calls a drunkard voluntariusdæmon, and declares that "whatever hurt or ill he doeth, his drunkenness doth aggravate it." (3 Thomas' Coke, 46.) So in his Reports it is stated that "although he who is drunk is for the time non compos mentis, yet his drunkenness does not extenuate his act or offence, nor turn to his avail; but it is a great offence in itself, and therefore aggravates his offence, and doth not derogate from the act which he did during that time; and that as well in cases touching his life, his lands, his goods, or any other thing that concerns him." (Beverley's case, 4 Co., 125,a.) Lord BACON, in his "Maxims of the Law," dedicated to Queen ELIZABETH, asserts the doctrine thus: "If a madman commit a felony, he shall not lose his life for it, because his infirmity came by the act of God; but if a drunken man commit a felony, he shall not be excused, because the imperfection came by his own default." (Rule V.) And that great and humane Judge, Sir MATTHEW HALE, in his "History of the Pleas of the Crown," written nearly two hundred years ago, does not countenance any relaxation of the rule. "The third kind of dementia," he says, "is that which is dementia affectata, namely, drunkenness. This vice doth deprive men of the use of reason, and puts many men into a perfect but temporary phrenzy; and therefore, according to some civilians, such a person committing homicide shall not be punished simply for the crime of homicide, but shall suffer for his drunkenness, answerable to the nature of the crime occasioned thereby, so that yet the primal cause of the punishment is rather the drunkenness than the crime committed in it; but by the lawsof England such a person shall have no privilege by his voluntarily contracted madness, but shall have the same judgment as if he were in his right senses." He states two exceptions to the rule, one where
the intoxication is without fault on his part, as where it is caused by drugs administered by an unskillful physician, and the other, where indulgence in habits of intemperance has produced permanent mental disease, which he calls "fixed phrenzy." (1Hale, 32.) Coming down to more modern times we find the principle insisted upon by the enlightened Sir WILLIAM BLACKSTONE. "The law of England," he says, "considering how easy it is to contract this excuse, and how weak an excuse it is (though real), will not suffer any man thus to privilege one crime by another." (4 Com., 26.) A few recent cases in the English courts will show the consistency with which the rule has been followed down to our own times. In Burrow's case (Lewin'sCr. C., 75, A.D. 1823), the prisoner was indicted for a rape, and urged that he was in liquor. HOLROYD, J., addressed the jury as follows: "It is a maxim in law that if a man gets himself intoxicated, he is answerable to the consequences, and is not excusable on account of any crime he may commit when infuriated by liquor, provided he was previously in a fit state of reason to know right from wrong. If, indeed, the infuriated state at which he arrives should continue and become a lasting malady, then he is not answerable." A similar charge was given to the jury in the next case in the same book, where drunkenness was urged upon the trial of an indictment for burglary. Patrick Carroll was tried in 1835, at the Central Criminal Court, before a judge of the King's Bench and a judge of the Common Pleas, for the murder of Elizabeth Browning. It appeared that shortly before the homicide the prisoner was very drunk. His counsel, though he admitted that drunkenness could not excuse from the commission of crime, yet submitted that in a charge for murder, the material question being whether the act was premeditated or done only with sudden heat and impulse, the fact of the party being intoxicated was a proper circumstance to be taken into consideration, and he referred to a case before HOLROYD, J., reported in 2 Russell onCrimes, 8
(Rex v. Grindley), where that doctrine was laid down. PARKE, J., in summing up, said: "Highly as I respect that late excellent judge, I differ from him, and my brother LITTLEDALE [the associate] agrees with me. He once acted on that case, but afterwards retracted his opinion, and there is no doubt that that case is not law. I think that there would be no safety for human life if it were considered as law." The prisoner was convicted and executed. (7 Carr. Payne, 145.) 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. Rex v. Meakin (7Carr. Payne, 297), and Rex v. Thomas (7 id., 817), may be mentioned; and in this country, The United States v. Drew
(5 Mason C.C.R., 28), and The United States v. McGlue (1Curtis C.C.R., 1), will be found to maintain the principle upon the authority of Judge STORY and Judge CURTIS, of the Supreme Court of the United States. These last two cases are interesting, not only for stating the general principle, but for confirming the distinction laid down so long ago by Sir MATTHEW HALE, that where mental disease, or as he terms it, a "fixed phrenzy," is shown to be the result of drunkenness, it is entitled to the same consideration as insanity arising from any other cause. The first of them was a case of delirium tremens, and Judge STORY directed an acquittal on that account. In the other the evidence left it doubtful whether the furious madness exhibited by the prisoner was the result of present intoxication, or of delirium supervening upon long habits of indulgence. This state of the evidence led Judge CURTIS to state the rule and the exception with great force and clearness. In this state the cases of ThePeople v. Hammell and The People v. Robinson, reported in the second volume of Judge PARKER'S Reports (pp. 223, 235), show the consistency with which the doctrine has been adhered to in our criminal courts and in the Supreme Court.
The opinion in the last case contains a reference to several authorities to the same effect in the other states of the Union. Where a principle in law is found to be well established by a series of authentic precedents, and especially where, as in this case, 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 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 considered 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 the opinion that, in cases of homicide, the fact that the accused was under the influence of liquor, 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 Rex 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 stabbing 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, "a man uses a stick, you would not infer a malicious intent so strongly 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 upon the consideration of the malicious intent of the party." In Rex v. Thomas, for maliciously 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 in cases 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 excited 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 drunkenness 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 must generally happen, in homicides committed by drunken men, that 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 sometimes be right to advise the jury that it ought to have no influence upon the case, is, I think, clear from the foregoing authorities. In a case of lengthened 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 an examination of the exceptions 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 neither an intention to commit murder, nor a motive for such an act, could be imputed to the prisoner. It was, therefore, asked that it should be left to the jury to determine whether such a degree 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 inapplicable, the case of a person who had become insensible from intoxication, and who was performing an act unaccompanied by volition. There was nothing in the evidence to show that the prisoner'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 deceased with his knife. The mind and will were no doubt more or less perverted by intoxication, but there was no evidence tending to show that they were annihilated or suspended. Assuming, therefore, that the request did not refer to such a hypothesis, the only other possible meaning is, that it supposes that the jury might legally 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 sufficient in degree. It has been shown that this would be opposed to a well established 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 favorable 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 explain, assumes that one may be convicted of murder or any other crime, though his mind be reduced by drunkenness to a condition which would have called for an acquittal, if the obliquity 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 that he must take the consequences of his own volunary act. (Rex v.Thomas, supra.) The charge, therefore, gave the prisoner the chance of an acquittal, to which he was not entitled; but this was not an error of which he can take advantage.
The judgment of the Court of Sessions was reversed by the Supreme Court on the ground, as it appears from the opinion, that the judge altogether withdrew the attention of the jury from the consideration of the fact that the prisoner was intoxicated. I do not so understand the charge; all the evidence which was offered to show the prisoner's condition in that respect, was received without objection. The judge refused to charge that it would entitle him to be acquitted of murder, whatever the jury might think of its degree. Upon the question whether it could be taken into consideration to explain or characterize his acts, nothing appears to have been said either by the counsel or the judge. It does not appear whether the whole charge is given, or only such parts as were excepted to. As I do not find any error in the portions which are set forth, I am of opinion
that the judgment of the sessions ought not to have been reversed on the ground that it is not sufficiently full in other respects.
Under the act of 1855, courts of error are to order a new trial when they are satisfied that a conviction for murder is against evidence or against law, or that justice requires another trial. (p. 613, § 3.) In the exercise of this jurisdiction, I have examined this case with the attention which its importance to the prisoner and to the public merits. It satisfactorily appeared that the prisoner, without any provocation on the part of the deceased, who was a stranger to him, came upon him and stabbed him to the heart with a knife. The jury have found, and upon sufficient evidence, as I think, that the prisoner intended to kill the deceased. The case is within the principle of ThePeople v. Clark and The People v. Sullivan (3 Seld.,
385, 396). Independently of the question of intoxication, already disposed of, the evidence disclosed a clear case of murder.
The judgment of the Supreme Court ought to be reversed, and the proceedings remitted to that court, with directions to pronounce sentence anew against the prisoner.