State v. Johnson.

and not to the remote cause; to the actual state of the party, and not to the causes which remotely 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. B. Davis and Basset for the prisoner.

In the Supreme Court of Errors of Connecticut, April Term, 1873.

1. Murder in First Degree - Deliberation - Intoxication. - On an indictment under a statute providing that all murder “perpetrated by any kind of wilful, deliberate, and premeditated killing" is murder in the first degree, a state of intoxication or any other fact tending to prove that the prisoner was incapable of deliberation may be shown. 2. Test of Insanity. - To be criminally responsible a man must have reason enough to be able to judge of the character and consequences of the act committed, and must not be overcome by an irresistible impulse arising from disease.

3. Where insanity is shown to exist a short time before the act, the evidence should show sanity at the time or the jury should acquit.

Indictment for murder in the first degree; brought to the Superior Court in New Haven County and tried, on the plea of not guilty, before FOSTER and GRANGER, JJ.

The murder charged was that of a woman named Johanna Hess, at Meridan, in New Haven County, on the eighth day of July, 1872. By statute, "all murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate, and pre

1 Gen. Stats., tit. 12, sect. 6.

State v. Johnson.

meditated killing, or which shall be committed in perpetrating, or attempting to perpetrate, any arson, rape, robbery or burglary, shall be deemed murder in the first degree; and the jury before whom any person indicted for murder shall be tried, shall, if they find such person guilty, ascertain in their verdict whether it be murder in the first degree or second degree." Another section of the statute makes murder in the first degree punishable by death, and in the second degree by imprisonment in the State prison for life.

Upon the trial the attorney for the State having offered evidence to prove, and claiming to have proved, that the murder was wilful, deliberate and premeditated, and therefore murder in the first degree, the counsel for the prisoner offered evidence to prove that he was insane at the time he committed the act. And that he had been insane on previous occasions, and had a disease called dipsomania. He also offered evidence to prove, and claimed to have proved, that the prisoner was intoxicated at the time, and was also suffering from a severe injury which had affected his nervous organization, and which rendered him more easily affected by intoxicating liquor.

After the evidence was in, the counsel for the prisoner filed a written request that the court would give the jury the following instructions in writing: 1st. That if the evidence shows that intoxicating liquor on previous occasions had rendered the prisoner insane, or had caused an habitual madness or fixed frenzy, and that if at the time he was laboring under a temporary insanity caused by excessive drinking, in combination with an infirm state of mind, or a previous wound or illness, which rendered ardent spirits fatal to his intellect to a degree unusual in other men, the jury should wholly acquit the prisoner. 2d. That if upon the whole evidence the jury believe that the prisoner, at the time of committing the act, was under the influence of a diseased mind, and was unconscious that he was committing a crime, the jury should acquit him. 3d. That if the prisoner was laboring under some controlling disease, which was an active power within him which he could not resist, then he was not responsible. 4th. That if the jury believe, that from any cause, either from personal injuries or the use of ardent spirits, the prisoner's mind was impaired, and at the time of committing the act was, by reason of such cause, unconscious that he was committing a crime, he is not guilty of any offence whatever. 5th. That if the jury find that the prisoner was greatly excited or affected by the use of liquor, and which produced a state of mind unfavorable to deliberation and premeditation, although not such as to render the party entirely incapable of forming a deliberate purpose, he

Instructions.

cannot be convicted of any higher crime than that of manslaughter. 6th. That the law does not require that the insanity which absolves from crime should exist for any definite period or for any particular length of time; but only that it should exist at the moment when the act charged was committed. 7th. That the proof of prior insanity, at any time, imposes upon the State the burden of proving the crime to have been perpetrated during a lucid interval; and that the proof of prior insanity defeats the legal presumption of sanity, and creates a legal presumption of continued lunacy, which, like the former, must be overthrown by proof. 8th. That if the jury have any doubt as to the case, on the question of the sanity of the prisoner at the time of the commission of the act, he should be acquitted. 9th. That if intoxicated at the time of committing the act, he is guilty of no higher crime than that of manslaughter. 10th. That in order to convict of murder in the first degree, the jury must find that the accused killed the deceased with premeditation and while in the possession of a sound mind and of his reasoning faculties; and that if the jury have any doubt on this point, or on any point in the case, they are bound to give the prisoner the benefit of that doubt.

The court declined to give any of the instructions so requested, but in lieu thereof charged the jury in writing, as follows: "To be a subject of punishment, an individual must be a moral agent; must have mind and capacity, must have reason and understanding enough to enable him to judge of the nature, character and consequences of the act charged against him, that the act is wrong and criminal, and that the commission of it will properly and justly expose him to penalties. He must not be overcome by an irresistible impulse arising from disease. The law can give no full and precise definition of sanity or of insanity; each is a question of fact, and the jury should be satisfied beyond a reasonable doubt, before convicting a man of crime, that he is of sound mind a sane man; if insane, he should be acquitted. Every person of mature years is presumed to be competent to commit crime, and to be of sound mind. If a person charged with crime be shown to have been insane a short time before the commission of the act, the evidence should show sanity at the time, or the jury should acquit." "Drunkenness does not excuse a party from the consequences of a criminal act; one crime cannot justify another. A man committing a criminal act, though intoxicated at the time, is a legal and proper subject of punishment. If a man, by long continued habits of intoxication, has brought on insanity, or so impaired and enfeebled his mind as to be utterly imbecile, he is no longer punishable for

State v. Johnson.

crime. If upon the whole evidence the jury entertain a reasonable doubt as to the prisoner's sufficient soundness of mind to be responsible for his acts, it will be their duty to give him the benefit of the doubt, and to render a verdict of acquittal."

The court further charged the jury orally as follows: "Murder in the first degree is defined by our statute as the killing of any person by poison, by lying in wait, or by any other kind of wilful, deliberate, premeditated killing, or when perpetrating the crime of robbery, rape, burglary or arson. This indictment does not charge the commission of this crime, either by lying in wait, by poison, or when committing either of the other crimes named in the statute. The question will be for you, under this indictment, to decide whether the accused committed the crime wilfully, deliberately and with premeditation. On this indictment the jury may bring in a verdict of guilty of murder in the first degree, or second degree, or manslaughter, or not guilty."

The jury returned a verdict of guilty of murder in the first degree, and the prisoner moved for a new trial, for error in the refusal of the court to charge as requested, and in the charge given.

There was also a motion in error on the ground of the insufficiency of the indictment, but as the decision of the case was wholly upon the motion for a new trial, that part of the case is not stated.

Hicks, for the prisoner.

G. A. Fay, contra.

CARPENTER, J. — There being a difference in opinion on the questions arising upon the motion in error, none of those questions are now decided, but we confine our attention to the motion for a new trial.

We think the charge of the court upon the subject of insanity was unexceptionable. It fully complied with the requests of the prisoner's counsel, so far as those requests were according to law. The language of the court differed, and very properly differs from the language of the requests; but the law of the charge is correct, and all that the prisoner was entitled to.

We are also of the opinion that the court was not bound to charge as requested upon the subject of intoxication. If the prisoner was in fact intoxicated at the time of the homicide, that does not as a matter of law reduce the offence to manslaughter, much less does it justify the prisoner. Nor does it in point of law reduce it to murder in the second degree. There was no error, therefore, in refusing to charge according to these requests.

Relevant on Question of Deliberation.

The court charged the jury that "drunkenness does not excuse a party from the consequences of a criminal act; one crime cannot justify another. A man committing a criminal act, though intoxicated at the time, is a legal and proper subject of punishment."

This, too, as a general proposition, is correct. If that was the only question involved in the case it would be entirely free from difficulty. But the real question is, whether drunkenness as a fact may be considered by the jury as evidence tending to disprove an essential fact in the case, a deliberate intention to take life.

We have entertained some doubts whether this question was made in the court below, and so presented here as that we can properly consider it. In the first place, it does not very clearly appear that the intoxication proved or claimed was of such a degree as to impair the capacity of the prisoner to form a deliberate, premeditated purpose to take life. In the next place, it does not appear that the prisoner's counsel asked the court to say to the jury that the intoxication was evidence tending to prove that the killing was not premeditated, and that he could only be convicted of murder in the second degree; but the claim was, in substance, that, intoxication, as matter of law, reduced the offence to manslaughter.

In a case of less importance these considerations might have some weight and induce us to hesitate to grant a new trial; but in a capital case we are not disposed to enforce the rules, however salutary those rules may be in their general application, so rigidly as to hold the prisoner to the consequences of a mistaken view of the law by his counsel; especially, when the course taken on the trial was such as practically to exclude from the minds of the jury, a fact material to be considered in determining not whether a crime was committed, but the measure of guilt.

The prisoner was indicted and on trial for murder in the first degree. As the homicide was not perpetrated by the means of poison, or lying in wait, or in committing or attempting to commit any of the crimes. enumerated in the statute, he could only be convicted of the higher offence by showing that it was a wilful, deliberate, and premeditated killing. A deliberate intent to take life is an essential element of that offence. The existence of such an intent must be shown as a fact. Implied malice is sufficient at common law to make the offence murder, and under our statute to make it murder in the second degree; but to constitute murder in the first degree actual malice must be proved. Upon this question the state of the prisoner's mind is material. In behalf of the defence, insanity, intoxication, or any other fact which