make himself responsible for his acts in that condition: Choice v. State, 31 Ga. 424. And in Roberts v. People, 19 Mich. 401, it was held that if a person be subject to a tendency to insanity, of which he is ignorant, and which is liable to be excited by intoxication, and if in consequence of intoxication, though voluntary, his mental faculties become excited to diseased action to such an extent that he does not know what he is doing or why he is doing it; or if he is conscious of this, he is not conscious of any object in doing it, or if he does not know what he is doing or that the means he is using are adapted or likely to kill; or, though conscious of all these, yet, if the diseased action of his mind has so far overcome or perverted his reason that he does not know what he is doing is wrong, then he will not be held responsible for the intoxication or its consequences. And in People v. Cummins, 47 Mich. 335, it was held, that where the defence of temporary insanity proceeds upon the theory that it was induced by the operation of strong drink upon a mind rendered unsound by an injury to the brain, it is error to leave the question of criminal responsibility to be determined upon the facts of injury and mental unsoundness alone, or upon the effect of intoxication, apart from the other facts.

The reason for the doctrine.-Judge COOLEY, in People v. Garbutt, 17 Mich. 19, states the ground upon which this doctrine is held, quite strongly. He says: "A doctrine like this, to wit, that drunkenness should excuse, would be a most alarming one to admit in the criminal jurisprudence of the country, and we think that the recorder was right in rejecting it. A man who voluntarily puts himself in condition to have no control of his actions, must be held to intend the con

sequences. The safety of the community requires this rule. Intoxication is so easily counterfeited, and since it is so often resorted to as a means of nerving the person up to the commission of some desperate act, and is withal so inexcusable in itself, that the law has never recognized it as an excuse for crime." And in People v. Rogers, 18 N. Y. 9, the Court say: "It will 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 guilt. 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 fellowmen and to society, to say nothing of more solemn obligations, to preserve, so far as 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 society."

The intoxication must be voluntary.— If a person by the unskilfulness of his physician, or by the contrivance of his enemies, eat or drink such a thing as causes frenzy, this puts him in the same condition with any other

frenzy, and equally excuses him: Russell on Crimes (5th ed.), 114. See, also, Bishop Crim. Law, § 405, citing Pearson's Case, 2 Lewin, 144; 1 Hale P. C. 32; People v. Robinson, 2 Park (N. Y.) C. C. 235; Choice v. State, 31 Ga. 424; Bartholomew v. People, 104 I. 605.

Delirium tremens.-The rule that intoxication creates no exemption from criminal responsibility does not apply to delirium tremens, which, although like many other kinds of mania the result of prior vicious indulgence, is always shunned rather than courted by the patient, and is not voluntarily assumed, either as a cloak for guilt, or to nerve the perpetrator to the commission of a crime. It is regarded as an insanity or diseased state of the mind, which affects responsibility for crime in the same way as insanity produced from any other cause: Maconnchey v. State, 5 Ohio St. 77; People v. Williams, 43 Cal. 344; Bailey v. State, 26 Ind. 422; Dawson v. State, 16 Id. 428; Fisher v. State, 64 Id. 435; Cluck v. State, 40 Id. 263; Bradley v. State, 31 Id. 492; Gates v. Meredith, 7 Id. 440; Erwin v. State, 10 Tex. App. 700; Beasley v. State, 50 Ala. 149 State v. Hundley, 46 Mo. 414; Lanergan v. People, 50 Barb. (N. Y.) 266; Roberts v. People, 19 Mich. 401 ; People v. Bell, 49 Cal. 485; U. S. v. Drew, 5 Mason (C. C.) 28; U. S. v. Forbes, Crabbe, 558; U. S. v. Clarke, 2 Cranch, 158; Cornwell v. State, Mart. & Yerg. (Tenn.) 147; Carter v. State, 12 Tex. 500; U. S. v. McGlue, 1 Curtis, 1; Bales v. State, 3 W. Va. 685; Boswell v. Commonwealth, 20 Gratt. (Va.) 860; Bliss v. Conn. etc. R. Co., 24 Vt. 424; Commonwealth v. Green, 1 Ashm. (Pa.) 289; Smith v. Commonwealth, 1 Duv. (Ky.) 224; Tyra v. Commonwealth, 2 Metc. (Ky.) 1; State v. McGonigal, 5 Harr. (Del.) 510; Rex v. Davis, 14 Cox C. C. 563;

Lanergan v. People, 50 Barb. (N. Y.) 266; Kenny v. People, 31 N. Y. 330; People v. Rogers, 18 Id. 9. It is only of habitual insanity, when proved once to have existed, that the law entertains the presumption that it continues until the contrary is shown. It is otherwise with spasmodic, temporary mania. So, when delirium tremens is relied upon as a defence, it must be shown affirmatively that the accused was under the delirium at the time of the act; no presumption that he was so will arise from the fact that he had prior attacks of the same malady: State v. Sewell, 3 Jones (N. Car.) L. 245; State v. Reddick, 7 Kan. 143; People v. Francis, 38 Cal. 183; 1 Arch. Crim. Prac. & Pl. (8th ed.) 29.

Where one's defence to the charge of murder was temporary insanity, caused by intoxicating liquors, and known as "mania a potu" or delirium tremens, the Court held that the charge to the jury need not use either of these terms, nor define the various types of insanity, provided the charge were sufficiently comprehensive to embrace the class of insanity in question: Stuart v. State, 57 Tenn. 178.

Insanity produced by drink.-Not only does delirium tremens render a person irresponsible, but the mind may be overthrown and permanent insanity may be produced by long-continued habits of excessive drinking, without any violent delirium tremens as the result: Bailey v. State, 26 Ind. 422; State v. Pike, 49 N. H. 399; 1 Arch. Crim. Prac. & Pl. (8th ed.) 29. In U. S. v. Drew, 5 Mason, 28, Justice STORY Says: "The question made at the bar is, whether insanity whose remote cause is habitual drunkenness, is or is not an excuse in a court of law for a homicide committed by the party while so insane, but not at the time

intoxicated or under the influence of liquor. We are clearly of opinion that insanity is a competent excuse in such a case. In general, insanity is an excuse for the commission of every crime, because the party has not the possession of that reason which includes responsibility. An exception is, when the crime is committed by the party while in a fit of intoxication, the law not permitting 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. But the crime must take place and be the immediate result of the fit of intoxication, and while it lasts; and not, as in this case, a remote consequence superinduced by antecedent exhaustion of the party arising from gross and habitual drunkenness. However criminal in a moral poin* of view such indulgence is, and however justly a party may be responsible for his acts arising from it to Almighty God, human tribunals are generally restricted from punishing them, since they are not the acts of a reasonable being. Had the crime been committed while Drew was in a fit of intoxication, he would have been liable to have been convicted of murder. he was not then intoxicated, but merely insane from an abstinence from liquor, he cannot be pronounced guilty of the offence. The law looks to the immediate and not to the remote cause; to the actual state of the party and not to the causes which lately produced it. Many species of insanity arise remotely from what, in a moral view, is a criminal neglect or fault of the party, as from religious melancholy, undue exposure, extravagant pride, ambition, etc. Yet such insanity has always been deemed a sufficient excuse for any crime done under its influence.".

As

In charging the jury the Court said

(Cornwell v. State, Mart. & Yerg. (Tenn.) 147): "If at the time the homicide was committed the prisoner had not sufficient understanding to distinguish right from wrong, and was in a state of insanity, it would be excusable, but that must be proved; if his insanity or bad conduct arose from drunkenness it was no excuse. There may be cases where insanity is produced by long-continued habits of intoxication; but it must be a permanent insanity. Insanity which is the immediate effect of intoxication is no excuse, the party being fully responsible for all his acts." A verdict of guilty upon this charge was affirmed by the court of appeal. The authorities support this position without exception. See cases cited to "delirium tremens,' supra, and, also, Bradley v. State, 31 Ind. 492; Burrow's Cuse, 1 Lewin, 75; Rennie's Case, Id. 76; Roberts v. People, 19 Mich. 401; Upstone v. People, 109 Ill. 169; Boswell v. Commonwealth, 20 Gratt (Va.), 860; Flanigan v. People, 86 N. Y. 554; Commonwealth v. Green, 1 Ash. (Pa.) 289; Bennett v. State, Mart. & Yerg. (Tenn.) 133; Beasley v. State, 50 Ala. 149; Fisher v. State, 64 Ind. 435; State v. Robinson, 20 W. Va. 713; State v. Paulk, 18 S. Car. 514.

In Indiana it has been held that where the defendant's mind is so far destroyed by a long-continued habit of drunkenness as to render him mentally incompetent, intentionally and knowingly to commit larceny, he should be acquitted, although he was intoxicated at the time he took the property: Bailey v. State, 26 Ind. And in Upstone v. People, 109 Ill. 169, it was held that on the trial of a defendant for murder, when insanity is set up in defence, and he is shown to have been intoxicated at the time of the homicide, evidence of his

422.

previous intoxication will be properly received from the prosecution, as bearing upon the question of intoxication at the time of the killing and of the conduct of the defendant while in that state.

Dipsomania. The existence of a disease called dipsomania, which overmasters the will of its victim, and irresistibly compels him to drink to intoxication, is a question of fact for the jury: State v. Pike, 49 N. H. 399. In this case the Court say: "If there are any diseases whose existence is so much a matter of history and general knowledge, that the Court may properly assume it in charging a jury, dipsomania, certainly, does not fall within that class. The Court do not profess to have the qualifications of medical experts. Whether there is such a disease as dipsomania is a question of science and fact, and not of law."

"We presume," says Bishop, Crim. Law (7th ed.), § 407, that there are Courts which will not not permit that defence to be introduced; but other Courts have allowed it, and have held that the questions whether there is such a disease, and whether the act was committed under its influence, are not questions of law but of fact for the jury.

Still, looking at such an inquiry as a mere search after facts, it is obvious that, to distinguish a case of this sort from one of mere inordinate appetite may be difficult, requiring of judges and jurors great caution." And see People v. Blake, 65 Cal. 275, where it was held that evidence of dipsomania is admissible for the defence, in a forgery case.

Drunkenness as an aggravation. It was formerly held that drunkenness was an aggravation, rather than an excuse for crime: Beverly's Case, 4 Co. 123b; People v. Porter, 2 Park. (N. Y.) C. C. 14; Commonwealth v. Hart,

2 Brewst. (Pa.) 546. But such is clearly not now the law. In Ferrell v. State, 43 Tex. 503, it was said that "the Court below told the jury that the condition of the defendant at the time of the homicide, the result of intoxication, was an aggravation of the offence, and should be so regarded by the jury; thus, in effect, telling them if the defendant was intoxicated, he might be properly convicted of a higher grade of offence than the facts otherwise required; for, it will be observed, it is the offence and not its penalty, which the Court tells the jury is aggravated by the appellant's intoxication. It is needless for us to say that the law of this State gives no warrant for such doctrine. While intoxication is no excuse, much less justification for crime, it is certainly a startling idea that the bare fact of one being in this condition when the homicide is committed, converts nurder in the second, to murder in the first degree, or will authorize, if not require, the jury to impose the penalty of death or confinement for life, instead of a term of years. This would be directly the reverse of the rule laid down by the Code, and would make the fact that the homicide was committed when the perpetrator was incapable of a deliberate intention and formed design to take life or do other serious bodily injury for want of a sedate mind, an aggravation instead of a mitigation of the heinousness of murder." See, also, McIntyre v. People, 38 Ill. 515; State v. Donovan, 61 Iowa, 369; U. S. v. Forbes, Crabbe, 559. The U. S. District Court (W. D. Mo. Sept. T. 1882) in U. S. v. Claypool, 14 Fed. Rep. 127, held, that when resorted to, to blunt the moral responsibility, drunkenness heightens the culpability of the offender.

WILLIAM M. MCKINNEY.