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When the offense charged embraces deliberation, premeditation, some specific intent, or the like, evidence of intoxication at the time the deed was done may be important. Id. Evidence of drunkenness is admissible on the question of intent, when the intent is an element in the constitution of the offense, and without which the offense could not be committed; and if the accused was in such a condition of mind from intoxication as to be incapable of forming such intent, it will be a complete defense. People v. Blake, 4 Pac. Rep. 1; Cook v. Territory, Id. 887. Thus, in a prosecution for maliciously shooting with intent to wound, evidence that the defendant was so much intoxicated that he could not form or have such intent is admissible. Cline v. State, 1 N. E. Rep. 22. And where the defendant was so drunk that he was incapable of forming an intent to ravish the prosecutrix, such drunkenness is a defense to a prosecution for attempted rape. State v. Donovan, 16 N. W. Rep. 206.

It is said that intoxication or drunkenness on the part of the defendant cannot, in a murder trial, form a legitimate matter of inquiry as between the crime of murder in the second degree and that of manslaughter; for manslaughter is the unlawful killing of a human being without malice, express or implied, and without any mixture of deliberation. People v. Langton, 7 Pac. Rep. 843. The court say in this case that the question is not a new one to the court, but that it was passed upon and the same doctrine held in the case of People v. Nichol, 34 Cal. 215, and add: "In the case of Pirtle v. State, 9 Humph. 663, the supreme court of Tennessee say that, as between the two offenses of murder in the second degree and manslaughter, the drunkenness of the offender can form no legitimate matter of inquiry."

The supreme court of Minnesota say, in case of State v. Grear, 29 Minn. 221, S. C. 13 N. W. Rep. 140, say that "upon the subject of intoxication as a defense to a criminal charge the court instructed the jury to the effect that if the defendant was at the time of the shooting in such a condition of mind by reason of intoxication that he did not know what he was doing, or whether his acts were right or wrong, then he is irresponsible, and incapable of entertaining a criminal intent, and must be acquitted. We are by no means prepared to concede the correctness of the general rule thus laid down with respect to the effect of voluntary drunkenness in relieving of criminal responsibility. Certainly no such rule prevailed at common law. See Com. v. Hawkins, 3 Gray, 463; People v. Rogers, 18 N. Y. 9; Hopt v. People, 104 U. S. 631. It is at the same time true that there may be a degree of intoxication which will render a person incapable of entertaining the actual specific intent to do a certain thing which is by statute made a necessary ingredient of certain offenses. State v. Garvey, 11 Minn. 154, (Gil. 95.) So, also, it may be material for the prisoner to show intoxication where the charge is of murder, and there are different degrees of that crime, according to defendant's state of mind at the time the offense was committed."

In a recent Ohio case, Cline v. State, 1 N. E. Rep. 22, the late Judge OKEY, one of the most learned and able judges that ever sat upon the Ohio or any other bench, says that "where the offense charged embraces deliberation, premeditation, some specific intent, or the like, evidence of intoxication may be important, and it has frequently been admitted. Pigman v. State, 14 Ohio, 555; Nichols v. State, 8 Ohio St. 435; Davis v. State, 25 Ohio St. 369; Lytle v. State, 31 Ohio St. 196. The leading case of Pigman v. State has been repeatedly cited with approval, People v. Robinson, 2 Parker, Crim. R. 235; People v. Harris, 29 Cal. 678; Roberts v. People, 19 Mich. 401; State v. Welch, 21 Minn. 22; Hopt v. People, 104 U. S. 631; State v. Johnson, 40 Conn. 136; and no doubt the law upon the subject is correctly stated in that case, and that the rule as there expressed is humane and just; but there is always danger that undue weight will be attached to the fact of drunkenness, where it is shown in a criminal case, and courts and juries should see that it is only used for the purpose above stated, and not as a cloak or justification for crime." See, also, U. S. v. Drew, 5 Mason, 28; S. C. 1 Lead. Crim. Cas. (2d Ed.) 131, note; Regina v. Davis, 14 Cox, Crim. Cas. 563; S. C. 28 Moak, Eng. 657, note; Lawson, Insan. 533, 678, where all the cases are collected relating to the admissibility and effect, in criminal cases, of proof of intoxication.

4. As AFFECTING TESTIMONY OF WITNESS. Intoxication of a witness at the time of an occurrence in regard to which he testifies, while it does not destroy his credibility, deservedly impairs it; but if corroborated, or his memory of the transaction appears to be distinct and clear, he is entitled to belief. State v. Castello, 17 N. W. Rep. 605. Objection to the testimony of a witness because of the intoxication of such witness at the time of the occurrence in regard to which he is to give evidence must be made at the time such testimony is offered. Dickinson v. Buskie, 17 N. W. Rep. 685.

5. CONFESSIONS OF CRIME MADE WHILE INTOXICATED. Confessions of guilt of crime voluntarily made by one while suffering from delirium tremens are admissible. State v. Feltes, 1 N. W. Rep. 755. The fact of intoxication affects the weight to be given to the testimony and not the admissibility. State v. Grear, 10 N. W. Rep. 472.

6. AS AFFECTING JUROR. Misconduct on part of juror in trial by drinking intoxicat ing liquors will not be considered on appeal. Kearney v. Snodgrass, 7 Pac. Rep. 309; State v. Becker, Id. 329.

SUPREME COURT OF CALIFORNIA.

(2 Cal. Unrep. 548)

HORTON V. DOMINGUEZ. (No. 11,178.)

Filed October 14, 1885.

TRANSCRIPT ON APPEAL-TIME FOR FILING.

A transcript on appeal is filed within the time prescribed by rule 2 of the supreme court if filed on August 5, 1885, where the notice of appeal was filed on June 3, of the same year, and the bill of exceptions settled on July 1st, and filed July 2d.

Department 2. Appeal from superior court, Ventura county. Motion to dismiss appeal under rule 2 of the supreme court, which reads as follows:

"Rule 2. Transcript. The appellant in a civil action shall, within forty days after the appeal is perfected, and the bill of exceptions and the statement (if there be any) are settled, serve and file the printed transcript of the record, duly certified to be correct by the attorneys of the respective parties, or by the clerk of the court from which the appeal is taken."

The transcript in this case was filed August 5, 1885.

The notice

of appeal had been filed on June 3, 1885, and the bill of exceptions. was settled on July 1, 1885, and filed July 2, 1885.

Hall & Hamer, for appellant.

Blackstock & Shepherd, for respondents.

BY THE COURT. The transcript was filed within the time prescribed by rule 2 of this court. The motion to dismiss the appeal is therefore denied.

(2 Cal. Unrep. 549)

HIRSCHFELD v. SUPERIOR COURT OF TULARE CO.

Filed October 14, 1885.

CERTIORARI-SETTLEMENT OF ADMINISTRATOR'S ACCOUNT.

Where an administrator's first annual account is settled, an order that such account should be again gone into, in connection with the second annual account of the administrator, cannot be reviewed on certiorari, as it involves no question of jurisdiction of the lower court.

Department 2. Certiorari to review an order that on the settlement of an administrator's second annual account the first annual account, which had already been settled, should be gone into again in connection with the second.

Wal. J. Tuska, for the petitioner.

BY THE COURT. Petition for writ of review. The case as presented by the petition does not involve any question of jurisdiction in the court below; therefore the petition is denied.

v.8P,no.4-18

(2 Cal. Unrep. 549)

LUCO v. COMMERCIAL BANK OF SAN DIEGO. (No. 11,016.)

Filed October 14, 1885.

PARTITION-NOTICE OF APPEAL-SERVICE ON ADVERSE PARTIES.

Unless notice of an appeal from an interlocutory decree in partition is served upon all the adverse parties the appeal will be dismissed.

Department 2. Appeal from superior court, San Diego county. A. B. Hotchkiss, for appellant.

Levi Chase, W. J. Hunsciker and Thomas J. Arnold, for respondent.

BY THE COURT. A motion is made to dismiss the appeal, which is from an interlocutory decree in partition, on the ground that the notice of appeal was not served on all of the adverse parties. As the notice was not so served, the motion must be granted. Ordered accordingly.

(34 Kan. 116)

SUPREME COURT OF KANSAS.

STATE v. ANDERSON.

Filed October 9, 1885.

APPEAL FROM JUSTICE OF THE PEACE IN CRIMINAL CASE CERTIFYING COM

PLAINT.

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Where a defendant, convicted of a misdemeanor before a justice of the peace, appeals to the district court, the statute requires the justice to certify up the original complaint to the district court; and if the complaint is transmitted without such certification, the district court, in its discretion, may permit the defect to be remedied by amendment; but it is error to compel the defendant to go to trial, against his objection, upon a complaint found among the papers of the case in the district court, which has not been certified to nor authenticated in any manner.

Appeal from Cloud county.

S. B. Bradford, Atty Gen., and J. W. Sheafor, for the State.
L. J. Crans, for appellant.

JOHNSTON, J. The appellant was prosecuted before a justice of the peace of Cloud county, and convicted of the offense of bribing, inducing, and deterring a witness from appearing and giving her testimony in a certain criminal proceeding then pending in that county. In due time the defendant appealed to the district court, and entered into a recognizance that was approved by the justice, conditioned for his appearance at the next term of the district court to answer to the complaint made against him. He appeared at the district court in accordance with the condition of his recognizance, and when the case was called for trial he moved the court for his discharge, because there was no legal complaint or other accusation filed against him. He also moved to strike from the files of the court certain papers thereon, purporting to be a complaint, warrant, and recognizance, because there was no certification thereof as the statute prescribed. The testimony upon this motion showed that the complaint, warrant, and recognizance brought up on the appeal had not been certified to by the justice of the peace. These motions were overruled; and, against the objection of the appellant, the trial was proceeded with to a conviction upon the uncertified complaint. For this action the appellant asks a reversal here.

In the statute authorizing an appeal from the judgment of a justice of the peace in a criminal case, it is specifically provided that the justice from whose judgment the appeal is taken shall make a return of the proceedings had before him, and shall certify the complaint to the district court on or before the first day of the next term thereof. It is further provided that the cause shall be tried in the district court upon the original complaint, unless it shall be found insufficient and defective, in which event the court shall order a new complaint to be filed. These provisions are essential requirements, and furnish the

only authority for a charge or complaint upon which a defendant may be tried in a criminal case appealed from a justice of the peace. peace. They were obviously intended for the benefit of the defendant, that there might be precision and certainty in the accusation made against him. It has been held that a disregard of these requirements constituted reversible error. State v. Anderson, 17 Kan. 89. The case cited was an appeal from a justice of the peace, where the defendant was tried, against his objection, upon a certified copy of the complaint. The court there held that a party could not be put upon trial upon a certified copy, stating that "it would be a dangerous precedent; that, while a copy may be accurate, there is always more or less of doubt thereof; and in criminal cases especially, as far as possible, all doubts should be eliminated, and it should be certain that the party is tried upon exactly the charge preferred against him." If the defendant cannot be tried upon a certified copy, much less should he be put on trial upon a complaint not shown to be either the original or a copy. In this case there was not even what purported to be a copy of the original complaint, but the appellant was compelled to go to trial upon a complaint found among the papers of the case which was not certified to or authenticated in any manner. Doubtless, the infirmity of the complaint might have been remedied. When the objection was first raised, the prosecution might have asked, and the court in its discretion would undoubtedly have granted, leave to amend the complaint by causing it to be identified and certified to as prescribed by the statute. No effort was made to cure the complaint; and, within the authority of the decision in State v. Anderson, supra, we must hold the rulings of the court to be erroneous. See, also, State v. Goodwin, 33 Kan. --; S. C. 6 Pac. Rep. 899.

In view of the conclusion that has been reached, the other questions raised by appellant need not be decided. The judgment of the district court will be reversed.

(All the justices concurring.)

(34 Kan. 96)

In re Petition of WHEELER.

Filed October 9, 1885.

1. CONSTITUTIONAL LAW-IMPRISONMENT FOR DEBT.

The provision of the constitution declaring that "no person shall be imprisoned for debt except in cases of fraud," applies only to liabilities arising upor

contract.

2. BASTARDY PROCEEDINGS-OBJECT OF PROSECUTION.

The purpose of a proceeding in bastardy is to compel the father of an illegitimate child to assist in supporting the fruit of his immoral act, and to indemnify the public against the burden of supporting the child.

3. SAME

IMPRISONMENT TO ENFORCE JUDGMENT FOR MAINTENANCE OF CHILD. The charge of maintenance and education which the father of an illegitimate child may be adjudged to pay under the bastardy act is not a debt in the sense in which that term is used in the provision of the constitution forbidding imprisonment for debt.

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