CHAPTER III. DRUNKENNESS. DRUNKENNESS NO EXCUSE - BURDEN OF PROOF. MCKENZIE v. STATE. [26 Ark. 335.] In the Supreme Court of Arkansas, December Term, 1870. 2. The Burden of Proof is on the prisoner who pleads insanity as a defence; and the jury are the judges of the weight of the testimony adduced thereon. APPEAL from Sebastian Circuit Court. Du Val & King, for appellant, Montgomery, Attorney-general, for appellee. The second ground is, that the finding of the jury was not warranted by the evidence, the substance of which follows: John Speet testified that he came to Noble's brewery, in Fort Smith, and McKenzie, the appellant, and Brown, the deceased, were sitting near each other at the door of the Brewery. Brown said to McKenzie, "let us go home." McKenzie called him a d-d son of a bitch, and told him to kiss (an indecent part of his person). Brown then said, “I do not wear any pistol." McKenzie said, "You are not able to wear any such things.' McKenzie then put on his shoes and got up from his seat inside the door, stepped back about two steps, raised his coat,, drew a revolver from his side, and said, "You d-d son of a bitch, don't bother me any more," and shot Brown, who fell. Brown was then about three steps outside the door. Mrs. Noble testified that as soon as the pistol fired, she went into the brewery and saw the man in the back room with a pistol in his hand, and saw the man lying dead out at the ( 533 ) McKenzie v. State. door. Frank Wesley testified that he was near the brewery; saw Brown standing, and saw him fall and die, about three steps out of the door; did not see McKenzie any more until an officer had arrested him. Mrs. Brown testified that she saw the accused and her husband, the deceased, on the 17th of June, 1867, near Fort Smith, on the Van Buren road, and in about three hours thereafter she saw the body of the deceased lying near Noble's brewery; that on the morning of the same day, she heard the accused tell deceased that he would kill him that day; that the accused then had no pistol, but half an hour afterwards she saw him with a pistol and lead in his hand; that she and others came to town with accused and deceased, in a wagon, soon after dinner; she knew of no difficulty between the accused and deceased; they talked together on the road; the accused told deceased to shut his mouth, that he knew nothing, but she supposed they were joking. Crawford testified that he knew the accused and deceased; saw them at Fishback's farm, where they lived, in the forenoon; they were playing, slapping each other and running around, and he heard the accused say, "I will kill you before night." McKenzie seemed to be drunk; saw him with a pistol; they started to town soon after dinner; in the evening he heard that Brown had been killed. Other witnesses testified as to the killing, the wound, etc.; but the most material, for the prosecution, was the above alluded to. All the witnesses showed that they knew of no previous quarrel between the parties. The first testified that The defendant introduced several witnesses. the appellant was of singular habits of mind; another said he regarded him as very much broken down, physically and mentally; had not considered him in his right mind for ninety days, and not more responsible than a lunatic; that when drunk he is different from other persons; never heard him say anything angry or vicious; he seemed prostrated; he went with one Taylor, and they were up much night and day. The next witness testified that he was a graduate of Maryland University, and had practised medicine for twenty years; had for several months known the accused, and he had concluded he was simpleminded; and if talking to medical men, he would call him insane - not in the full sense of that term; he was of the opinion he was imbecile to such an extent as at times to render him unconscious of any act, and that this imbecility was increased by the excessive use of intoxicating drinks; he was of opinion the accused would generally know the difference between right and wrong, and would be responsible for his acts; but it is probable, in his case, that the use of intoxicating drinks to any great extent would render him totally insane. The next witness said he Evidence of Insanity. 66 had practised medicine, etc., seventeen years, and had known the accused six months, and he was of the opinion his mind was very much impaired from some bad habits, or the commission of some crime, that had preyed upon his mind, so as to produce mental imbecility; and that that would be greatly increased by excessive use of strong drink. The next testified, that he had seen freaks in the accused that made him think that he was not a man of sound mind; and again, he had thought him a very intelligent man; he is a man of no sense when on a spree, no reason or control of himself when under the influence of liquor; he saw him once when he was putting a band on a gutter, and told him he was not putting it on very straight; he made no reply, but picked it up and kissed it; and that witness went and told the foreman that he was a perfect luna." This was in March, 1867; the accused said but little when sober, and at such times he considered that he would know right from wrong. Jackson Brooks testified that he saw the accused at the brewery; he was about the bar pretty much all day, and he saw him drinking "right smart; " thinks he was sober in the morning, but about three o'clock he was pretty tight; this was the 17th of June, 1867. The next witness said, he came to town with the accused, and he took a glass of beer at the "Last Chance," and again drank at the brewery, and was pretty drunk; this was the only time he ever saw him drunk. The State then introduced a witness, who said he had for several months known the accused, and regarded him not very bright hardly medium The next witness said he and the accused were both carpenters, and worked together in the government shop; had known him since December, 1866; was foreman over him, and could not say he ever thought he wanted sense; he was a good man and a good mechanic; that he knew the witness who said he told him, as foreman, that the accused was a "perfect luna," and did not remember of his ever having such talk to him. The next witness said the accused had worked for him a month and a half, and he thought him an ordinarily sensible man. The next witness said he was a carpenter; had frequently seen the accused; worked in the shop with him, and never saw anything in him that indicated insanity. The next witness stated the same. The next said he had been with the accused every day for two weeks before the killing, and saw no evidence of insanity. The widow of the deceased then testified that she had never seen any indications of the accused being insane, and that about a week before the killing she heard the accused say, if he were to commit murder he would claim to be insane, and when he got out of it he would be as smart as any of them. sense. McKenzie v. State. We have thus, at length, referred to the substance of the evidence, because the principal question here presented is as to the sufficiency of this evidence to sustain the verdict of murder in the first degree. The rule is well understood that where the State proves beyond a reasonable doubt that the accused perpetrated the murder by lying in wait, or by other kind of wilful, deliberate, malicious, and premeditated killing, it is murder in the first degree. The intention is manifested by the circumstances connected with the act of killing. Express malice is that which is capable of proof, and malice is implied when no considerable provocation appears, or when all the circumstances of the killing manifest an abandoned and wicked disposition, and this court has decided that the length of time is not material, so that the killing was the result of a wilful, corrupt, and malicious intent to take life; a design thus formed before the act of killing is sufficient.1 There can be no question, leaving the insanity out of view, but that the evidence here shows a wilful, intentional killing, and not only a want of considerable provocation, but without the slightest provocation. Take the entire testimony, and there is not the slightest word or act from the deceased towards him, in any way calculated to injure him or arouse his passions. On the other hand, there is some evidence going to show that he, before and at the time of the killing, was haboring malice toward the deceased. A settled intent to commit the most diabolical crimes may, and often does, remain secret until an opportunity offers to carry the wicked purpose into effect. And by concealing the malice, and cause of ill-will that exists, a wicked one can better hope to accomplish his purpose and escape punishment; hence it is wise for the law to presume that every one intends the first and natural consequences of his act. In this case two witnesses testify to threats made on the morning before the killing. One of these same witnesses testified that a week before the accused declared what he would do in case he should commit murder, and the fact of his preparing himself with a deadly weapon, immediately after making the threats, his impolitic, if not insulting, words while going to Fort Smith, and the unprovoked attack and killing of the deceased, certainly well justified the jury in finding that the killing was wilful, malicious, and premeditated. To refute this very violent presumption against him, the prisoner attempted to set up that he was then insane, and not conscious of the act he did. 1 Bivens v. State, 11 Ark. 460, Burgess v. Com., Va. Cases, 483, and 6 Rand. (Va.) 121. Drunkenness no Defence. The legal presumption is in favor of sanity, and that the party intended to do what was the natural consequence of his act, and if he made no denial of the killing, but assumed that he was excusable, he thereby took the burden of proof; and if he failed to produce evidence sufficient to change the presumption raised against him by the proof of the killing, the penalty of the law would be legally adjudged against him, and the jury is the only proper tribunal to determine the weight of the evidence, and this verdict was not a finding without evidence. It was by the physicians and some others testified that the accused was imbecile - a man of weak mind, and liable to be much affected from excessive use of strong drink; but while this may have been probable, even if it had been most likely, it is by no means conclusively shown that such result, as an excusable insanity, would follow from the free use of intoxicating liquors; and in that conflict of evidence the jury alone could determine. If it had been shown that drunkenness would necessarily produce insanity in the accused, the proof is by no means conclusive that at the time of the killing he had been laboring under the influence of ardent spirits long enough or to an extent sufficient to produce that insanity. One witness spoke of his drinking some the day before the killing. Another supposed he was drinking in the morning before the killing in the afternoon; but one who had been with him for two weeks, except the previous day, said he was sober for that whole time, Different other witnesses testified that he was sober in the forenoon of that day and when he came to town. Brooks testified that he, at the time of the killing, was drunk, or as he termed it, "pretty tight; "that he had seen him about the brewery nearly all day, and had seen him drink. This statement is not well sustained by other witnesses. It was shown by a number of them that he did not come to town until afternoon, and that the killing was about three o'clock, and this made it quite clear that he was not there, nearly all day, and that Brooks did not fairly state the facts. Except a glass of beer no one else testified that he had been drinking after coming to town. To place no stress upon the evidence tending to show he was sane, and if not at the time, up to near the time of killing, and we do not see how the jury on either point, being drunk, or being insane, if drunk, could well have found in the accused's favor; and would it not endanger the rights of society beyond what the law will allow, to hold that any one who voluntarily beclouds his mind with intoxi |