Carter v. State.

ians, and to youth, and to society, than " comes in the cold abstract from pulpits."

In order to be clearly understood, we have supposed the strongest case, a case of entire prostration of intellect immediately occasioned by drunkenness, and have said that that constitutes no excuse.

Instances, however, of heinous offences, committed under such circumstances, are believed to be of rare occurrence. They are much oftener the result of that midway state of intoxication which, although sufficient to stimulate the evil-disposed to actions correspondent with their feelings, would not excite the good man to criminal deeds. It is generally the drunken man acting out the sober man's intent. He says and does when drunk what he thinks when sober.

The court entirely concur with the Circuit Court in the charge given to the jury.

Parts of this opinion may appear to partake of the character of a moral lecture. It is believed to be called for by the occasion.

We have seen before us this day three fellow-beings who are about to be ushered into the presence of their Maker, two of whom may probably attribute his unnatural exit from this world to the immoderate use of ardent spirits. Disagreeable as it is, the solemn duty is devolved upon the court of pronouncing, in this instance also, the sentence of the law that the judgment of the Circuit Court be affirmed.

INTOXICATION— INSANITY RESULTING THEREFROM-TEST OF INSANITY - PARTIAL INSANITY.

1. Voluntary intoxication does not excuse or palliate a crime, through insanity—mania a potu or delirium tremens — may.

2. Test of Insanity - Partial Insanity.-The test of insanity is the ability to distinguish between right and wrong. In case of partial insanity, the question is whether the

The Facts of the Case.

prisoner was capable of distinguishing between right and wrong in the particular connection in which the unlawful act was done.

APPEAL from Panola. Indictment for murder of William Mills. The killing occurred in the town of Pulaski, near a grocery, on the 3rd of December, 1851. The prisoner had been drinking to excess for several days, and more or less for several weeks. On the day of the killing there were several persons in and about the grocery, drinking and playing cards. While the prisoner and one Dodson were playing cards, the latter said to the other, on some trivial occasion, that he, the prisoner, did not have a soul larger than a mustard seed. A bystander, who stated that he considered it unjust, remarked to the prisoner in the same spirit, that if it were he, he would not take that. Thereupon the prisoner struck at Dodson, and a fight ensued between them, during which Mills stood by and declared that no one should interfere until one hollowed, and which ended in Dodson knocking the prisoner down with a piece of chimney timber by a blow on the head. After this, the prisoner was ranting and raving around the premises, with his gun, and by his appearance and manner caused some fear that he would injure some of the party, and from the testimony it seemed that two or three of the party were each apprehensive of an attack by the prisoner. At this time Mills remarked to Dodson that if he would give him a good whipping he would go home and behave himself. Mills, and his brother-in-law, Baker, loaded a gun, and Mills picked up a two pound weight and put it in his pocket. A short time before the killing, Mills took a bowie knife which was handy, and put it in his bosom. It did not appear whether the prisoner knew of these hostile actions on the part of Mills or not. The prisoner started and went a short distance down the hill from the grocery, and shot off one barrel of his gun. Deceased proposed to Dodson to go down to him; Dodson refused to go, remarking that he might shoot.. Deceased went, and as he approached the prisoner asked him whom he shot at. The prisoner replied he knew whom he would shoot. Deceased replied he would not shoot a deer; told him he was his best friend, to put down his gun and come in, and Dodson would treat. Deceased kept advancing; prisoner told him not to come any further or he would shoot, and presently did shoot and inflicted the wound which caused death. The shot appeared to have been duck shot, and some of them were flattened against the two pound weight which the deceased still had in his pocket. Several of the witnesses who took up the deceased, testified that he had no weapons about his person. The prisoner was a quiet peaceable man when sober, but troublesome and quarrelsome when drunk. There was

Carter v. State.

an effort to prove that the prisoner had been rendered insane by excessive drinking and the blow on the head. There was in proof a vague remark of the prisoner, made soon after he was arrested, to prove an old grudge. The prisoner and the deceased had been near neighbors for a long time, and so far as everybody knew had always been friendly. The prisoner made no effort to escape.

Verdict, guilty of murder in the second degree, and confinement in the penitentiary for three years.

M. D. Rogers and S. M. Hyde, for appellant; L. D. Evans, with them.

The Attorney-General for the State.

WHEELER, J.

(Omitting other rulings.)

The defence was that at the time of committing the homicide the accused was insane, occasioned by the excessive use of ardent spirits. The court gave instructions to the jury upon the law applicable to this defence, which were not and are not now complained of. But it has been insisted in oral argument at the bar, that certain legal principles of which the accused should have had the benefit were omitted; and that upon a proper view of the whole law upon the subject, the jury would have been warranted by the evidence in acquitting, or at least in imposing a milder punishment. We have attentively considered the charge of the court and the evidence; and are unable to concur with counsel in the view they have taken of the case.

It is unnecessary to review the charge of the court, as there is no part of it applicable to this defence, which is complained of as erroneous. Nor is it necessary to review the evidence. It may, however, be observed that the principal if not the only evidence in the case to support the plea of insanity is to be found in the facts and immediate circumstances attending the killing. There is no other evidence in the case from which the conclusion may be drawn that the accused was bereft of reason, than that which is to be found in the fact of killing under the circumstances. That was such as to afford conclusive evidence of malice; but not of insanity. In a certain sense, though certainly not in a legal sense, every unnecessary or unlawful homicide may be said to be an insane act. But to derive the evidence which is to acquit on the plea of insanity, from that source alone, if not equally as irrational as the act may be supposed to be, would at least be of extremely dangerous consequences. For the more causeless, unnatural and indefensible the homicide, the more deserving of condign punishment, the more fruitful would it be in the evidence which would screen from punish

United States v. McGlue, approved.

ment. It is manifest, therefore, that the absence of any known cause or apparent motive for the commission of a homicide, can never be considered evidence to support the plea of insanity. Every man is presumed to be sane until the contrary appears. Insanity is an exception to the general rule; and before any man can claim the benefit of the exception, he must prove that he is within it. It has been laid down as the law upon great authority and consideration, "that before a plea of insanity should be allowed, undoubted evidence should be adduced, that the accused was of diseased mind, and that, at the time he committed the act, he was not conscious of right and wrong. This opinion related to every case in which a party was charged with an illegal act, and the plea of insanity was set up. Every person was supposed to know what law was, and therefore nothing could justify a wrong act until it was clearly proved that the party did not know right from wrong. If that was not satisfactorily proved, the accused was liable to punishment."

It is also to be remarked that it appears from the evidence that the accused was perfectly conscious of what he was about to do; and he does not appear to have even fancied that he was acting upon provocation, or was constrained to act in necessary self-defence. He does not appear to have labored under any delusion; but to have had, or believed he had, and it would seem not wholly without reason, cause of ill-will towards the deceased for being the friend of his enemy. There does not seem, therefore, to have been an entire absence of the usual [malice] which incites to wicked, malicious, and revengeful acts. But without attempting to trace the act to the secret motive which prompted it, or to find the real or any adequate cause for its commission (which is unnecessary), it is further to be observed upon the evidence (and it is a very material fact where the plea of insanity is set up, alleged to have arisen from the cause to which it is ascribed in this case), that the accused shortly before starting out with his gun upon an avowed errand of death, indulged in such potations as were calculated in his excited state to excite to those acts of desperation, which are not unfrequently the fruits of the madness and frenzy occasioned by a sudden fit of drunkenness; and for which, when voluntary and intentional, the law makes no allowance, and admits no extenuation of crime.

The judge then cites with approval the charge of the court in United States v. McGlue,2 and affirms the judgment.

Boswell's Case.

INTOXICATION—INSANITY

PRODUCED THEREBY - BURDEN

PROOF-PREMEDITATION AND DELIBERATION.

BOSWELL'S CASE.

120 Gratt. 860.]

In the Court of Appeals of Virginia, March Term, 1871.

OF

Voluntary Drunkenness does not excuse a crime, but permanent insanity, like every other kind of insanity, excuses an act which otherwise would be criminal.

2. Burden of Proof. -The defence of insanity must be proved to the satisfaction of the jury.

3. Intoxication is relevant on the question of deliberation and premeditation.

ERROR to the Corporation Court of Alexandria.

James Boswell was indicted for the murder of Martha French, a colored girl seven years old. He was convicted of murder in the second degree, and appealed.

F. L. Smith & Neale, for the prisoner.

The Attorney-General, for the Commonwealth.

MONCURE, P.

(After passing on other points.)

The facts proved on the trial, and on which the said instructions were founded, are in substance as follows: On the evening of the 4th of July, 1870, Boswell (the accused), being drunk and staggering, came up King Street (in Alexandria) to West Street, and upset a barrel in front of a store on King Street, as he went by; that he turned down West Street, going in a northerly direction, and keeping on the east side of the latter street; that, as he walked along, he exclaimed in violent tones: "I will blow his damn brains out; will kill the damn little sons of bitches; " that there were at the time two little negro girls passing along the west side of West Street, going in a southerly direction and toward King Street, a number of ducks in the street about ten feet from him, and still further on a cart, both the ducks and the cart being between the prisoner and the other side of the street, though it did not appear that the cart was between prisoner and the little girls; that,