Insanity Resulting Therefrom.

influence of the liquor and cigars on a child of so tender years would produce a temporary insanity. This case essentially differs from that where a crime is committed by a person, who by a free indulgence of strong liquors, has at the time voluntarily deprived himself of his reason. By the policy of the law this rather enhances the offence. It was, however, an excuse constantly offered by offenders, and it is certainly true, that but few crimes are committed by persons who are habitually temperate in the use of ardent spirits.

The jury returned a verdict of acquittal, and after an admonition from the court the prisoner was discharged.

Insanity resulting from long continued drunkenness is an excuse for crime; but insanity, the immediate result of intoxication, is not.

At the May term of the Circuit Court of Davidson county, Burrell Cornwell and Moses M'Clanahan were indicted for the murder of Owen Hughes.

In the progress of the cause Lewis Carter was introduced, who swore that on the evening of the homicide, and about two hours previously, the prisoner and M'Clanahan came to the house of witness, and M'Clanahan asked witness whether he had seen a man by the name of Hughes, after which he called for liquor, which he and the prisoner divided between them, touched glasses and drank, after which M'Clanahan took a knife out of his pocket, and observed to witness that there was but one man against whom he had enmity, and struck his knife several times into the baluster, and said if he caught him that night he would give him first hell; he then said to the prisoner, "let us go." To the ad

Cornwell v. State.

missions of the declarations of M'Clanahan, as evidence against him, the prisoner, by his counsel, objected; but the objection was overruled, and the evidence admitted. It was proved that the prisoner was intoxicated, and that a free use of ardent spirits on the part of the prisoner produced partial insanity.

The court, after some remarks upon the subject of malice, charged the jury, "that 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; but if his insanity or bad conduct arose from drunkenness, it There may be cases where insanity is produced by longcontinued habits of intoxication; but it must be a permanent insanity. Insanity which is the immediate effect of intoxication is no excuse; the party is fully responsible for all his acts."

was no excuse.

The counsel for the prisoner requested the court to charge the jury, if they believed all the circumstances of the case, that the prisoner at the time of slaying labored under a temporary suspension of reason, although intoxication might have been the exciting cause, it is a circumstance of excuse or mitigation, and more especially if intoxication were not intended at the time of drinking, but the same was accidental, or a consequence not intended or apprehended. But the court refused to charge, except as above.

The jury found the prisoner guilty of murder; upon which finding judgment was entered that he be hanged, etc. A rule for a new trial was obtained, which, upon argument, was discharged, and the case brought by the prisoner to this court by appeal in the nature of a writ of error.

Balch, Duncan, and O. B. Hayes, for appellant.

A. Hayes, Attorney-General, and Grundy, for the State.

The opinions of WHYTE, CATRON, and CRABB, J.J. PECK, J., dissenting were delivered by CRABB, J.

(Omitting rulings on other points.)

It is also contended that the court below erred in their charge to the jury, and in refusing to charge as requested. The bill of exceptions presents us with what the judge said, as follows: "The court, in charging the jury, after defining the crime of murder, stated that the fact of killing being proved, the law presumes malice; and it lies on the defendant to show, from proof, circumstances of excuse or alleviation, unless they otherwise appear. Malice is express or implied; and, when there is no previous grudge it is implied when one kills another with a deadly weapon, not having been previously assaulted, in which case it is mur

The Dangers of Such Doctrine.

der; you will inquire whether there was express malice, or whether there was a previous assault. If, at the time, he had not sufficient understanding to know right from wrong, and was in a state of insanity, it would be an excuse; but that must be proved. But if his insanity or unusual bad conduct arose from drunkenness, it is 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; he is equally responsible for all his acts. The counsel for the prisoner requested the court to charge the jury, if they believed, from all the circumstances of the case, that the defendant at the time of the slaying labored under a temporary suspension of reason, and was insane, although intoxication might have been the exciting cause, it is a circumstance of mitigation or excuse; and more especially, if intoxication were not intended at the time of drinking, but the same were accidental, or a consequence not intended or apprehended. But the court would not so charge, but said insanity thus produced was no excuse."

Three cases of conviction for murder have been brought before this court at the present term; in two of which, the prisoner was defended, in the court below, on the ground of madness, occasioned by drunkenness; and yet in neither does it seem to us was there a colorable foundation for such a defence. This court would be remiss in the performance of their duty if they did not, under these circumstances, declare the law explicitly on this most important subject. In the argument of these causes very untenable positions have been assumed, and very dangerous doctrines have been advanced by counsel. And from what was stated by some of those counsel, these doctrines have been repeatedly urged, and sometimes sanctioned in the courts below.

It has become fashionable of late to discourse and philosophize much on mental sanity and insanity. New theories have been broached, and various grades and species of mania have been indicated. Some reasoners have gone so far as to maintain that we are all partial maniacs.

Whatever differences of opinion there may be as to the construction and operations of the mind of man, whatever difficulty in discovering the various degrees of unsoundness, it is only necessary for us to ascertain the kind of prostration of intellect which is requisite to free a man from punishment for crime by the law of the land. It is with this alone we have to do. "What the law has said, we say; in all things else we are silent. We put our feet in the tracks of our forefathers; non meus hic sermo, sed quæ præcepit Offellus. Let us then for a moment resort

Cornwell v. State.

to the sages of the law of different ages, and learn from them whether that species of frenzy which is produced by inebriety constitutes any excuse for crime, and what sort of insanity it is which will serve this purpose?

The good and the great, the humane yet firm, Sir Matthew HALE, in in his history of the Pleas of the Crown divides madness, dementia, into three kinds, idiocy, accidental or adventitious madness, and drunkenness. 'The second species, when it amounts to a total alienation of the mind, or perfect madness, excuses from the guilt of felony and treason, and further, persons afflicted with accidental madness, whether temporary as in the case of lunacy or continued, if they are totally deprived of the use of reason, cannot be guilty ordinarily of capital offences; for they have not the use of understanding, and act not as reasonable creatures; but their actions are, in effect, in the condition of brutes." I

"The third sort of madness is that which is dementia affectata, namely, drunkenness. This vice doth deprive man of the use of reason, and puts many men into a perfect but temporary frenzy; but by the laws of England, such a person shall have no privilege by this voluntarily contracted madness, but shall have the same judgment as if he were in his right senses."

In the case of Reniger v. Fogossa,2 we have a rule laid down, which has been approved again and again, from the early day in which it was advanced to the present time, "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 or 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." Here we have the strongest case put; a case of a total deprivation of understanding by drunkenness. Yet it is held to form no excuse. Lord COKE, in his commentaries,3 says: "As for a drunkard, who is voluntarius dæmon, he hath no privilege thereby; but what hurt or ill soever he doth, his drunkenness does aggravate it." And we are told in Beverly's Case,4 "that although he who is drunk is for the time non compos mentis, yet his drunkenness doth not extenuate his act or offence, nor turn to his avail." Hawkins, in his Pleas of the Crown,5 says: "That he who is guilty of any crime whatever, through his voluntary drunkenness, shall be punished for it as much as if he had been

p. 30.

2 Plowden, 19 3 p. 247 a.

44 Rep. 125.

6 Vol. I., ch. 1, sect. 6.

The Early English Cases Reviewed.

sober." The erudite commentator on the laws of England, writes as follows on this subject: 1 "As to artificial, voluntarily contracted madness, by drunkenness or intoxication, which, depriving men of their reason, puts them in a temporary frenzy, our law looks upon this as an aggravation of the offence, rather than as an excuse for any criminal misbehavior. The law, considering how easy it is to counterfeit this excuse, and how weak an excuse it is, though real, will not suffer any man thus to privilege one crime by another."

But the part of the judge's charge which is most earnestly objected to is in the following words: "There may be cases where insanity is produced by long-continued habits of intoxication, but it must be a permanent insanity.

It has been already stated by us that madness, or insanity, if the term be preferred, occasioned immediately by drunkenness, does not excuse. Yet the judge correctly says, "that if, by the means of drunkenness a permanent, or, as Lord HALE to the same effect expressed it, an habitual or fixed madness be caused, that it will excuse." 2

In the above extracts we see the law in this respect. A contrary doctrine ought to be frowned out of circulation, if it has obtained it, by every friend to virtue, peace, quietness and good government.

The history of criminals and criminal trials shows that he who has not learned betimes to restrain the evil inclinations of our nature, envy, malice, revenge, and their kindred passions, but has a sufficiency of moral sense left to deter him from the commission of enormity while sober, will often "screw his courage to the sticking-point," by the free use of ardent spirits, and, thus made able to silence the twinges of his conscience, will voluntarily imitate the demon. But let courts once approve the doctrine now contended for, and it will not be resorted to as a plea by persons of this description alone; but even the cold-blooded, calculating assassin will never be a sober homicide; he will always exhibit himself at the bar of a court of justice as a specimen of insanity produced by drunkenness. And thus this degrading and disgraceful, yet too common vice, instead of being hunted from society as the bane of good morals and social and domestic happiness, will be converted into a shield to protect from punishment the worst of crimes. All civilized governments must punish the culprit who relies on so untenable a defence; and in doing so they preach a louder lesson of morality to all those who are addicted to intoxication, and to parents, and to guard

14 Black. Ch. 25, 26.

2 See H. H. P. C., pt. 1, ch. 4.