Jones v. State.

murder, but an act of involuntary manslaughter, in the pursuit of a lawful intent without due caution and circumspection. On the question of murder, his drunkenness is in his favor, but on the question of carelessness in the pursuit of his lawful intent, it is against him; for carelessness is much more easily believed of a drunken man than of a sober man. His drunkenness saves him from the one charge and convicts him perhaps of the other, not by excusing the one crime, nor aggravating the other, but simply by shedding the light of truth upon both. Apply these principles to the case before us. Osborne with one hand seizes Jones by the arm, and with the other by the throat and pushes him back. Jones stabs Osborne and kills him. Jones is indicted for murder. His defence is that the killing was but the repelling of an assault and battery, which reduces it to manslaughter at all events, and will also reduce it to justifiable homicide, if the jury should think he had reasonable fear that Osborne would choke him to death. The State replies that though such an assault and battery occurred, the killing was not produced by it, and was but the execution of an intent formed and in progress of execution before the assault and battery occured. Right here hangs the case, the defence maintaining that the intent to kill was produced by the provocation, and the State maintaining that it existed before. What is the evidence to support the view of the State? Jones was walking up to Osborne with a knife in his hand, and he was very drunk. Here his drunkenness is against him, for it is easier to believe that a reckless drunk man intends to kill without provocation, than that a thoughtful sober man has such an intention. This is the whole case made by the circumstances of the fatal rencontre to show that Jones had an intention to kill before he received the provocation. But the State wisely chose not to rest the case there, and the strongest evidence on the point is light reflected from a previous rencontre, in which Jones had much more clearly manifested the intent to kill. The argument was, that having had the intention in the first rencontre, he must be presumed to have persisted and continued in the same state of mind, up to the time of the second rencontre, a very short time afterwards. The interval between the two rencontres is not definitely stated, but it was sufficiently long for Jones to be put out of the house and come back again, and be the interval long or short the whole force of the argument lies in his presumed persistence and continuance in the same state of mind from the first rencontre to the second, and right here his deep drunkenness was evidence in his favor, tending to rebut the presumption of such a persistence or continuance in the same state of mind. Who needs to be told that drunkenness may almost destroy memory for the

Does not Mitigate Crime.

time, making it as a mere sieve, letting events and thoughts and intentions slip through it as soon as they fall into it? He might have forgotten the first rencontre and all its passions and intentions, and so brought none of them to the second-if he was very drunk. But drunkenness far short of the point of extreme forgetfulness, renders the mind inconstant in purpose, and exceedingly whimsical and rapid in its changes from one emotion to another, and even from one class of emotions to another class. Who has not seen the drunken man breathing threats one moment, and the next uttering maudlin professions of friendship-in one moment an imaginary hero, in the next an abject whimperer?

The whole tendency of drunkenness was to change that state of mind— which the State maintained had not been changed, but had continued from the first rencontre to the second. Its tendency was to rebut the strongest evidence which showed the formation of an intent to kill before the provocation was given, and it is exactly for this purpose that the drunkenness, in the opinion of this court, ought to have been considered by the jury, to assist them in deciding whether the intent to kill preceded the provocation, or was produced by it.

LYON, J. dissenting.

Judgment reversed.

DRUNKENNESS DOES NOT MITIGATE CRIME-IRRELEVANT ON QUESTION OF DEGREE.

STATE v. CROSS.

[27 Mo. 332.]

In the Supreme Court of Missouri, October Term, 1858.

Drunkenness does not mitigate a crime; neither can it be taken into consideration by a jury in determining whether a person committing a homicide acted therein wilfully, deliberately, and premeditatedly, so as to constitute murder in the first degree.

APPEAL from Franklin Circuit Court.

Mauro, for the State.

C. Jones for appellant.

State v. Cross.

NAPTON, J., delivered the opinion of the court.

[After deciding that the judgment must be reversed because the record does not show that the prisoner was present in court when the verdict was rendered.]

The following instruction was asked upon this trial by the counsel for the prisoner, and refused: "That before the jury can find the prisoner guilty of murder in the first degree they must ascertain as a matter of fact that the accused was in such a state of mind as to do the act of killing wilfully, deliberately, premeditatedly and maliciously, and any fact that will shed light upon the condition of his mind, at the time. of the killing, may be looked into by them, and constitute legitimate proof for their consideration; and among other facts any state of drunkenness being proven, it is a legitimate subject of inquiry as to what influence such intoxication might have had upon the mind of the prisoner in the perpetration of the deed, and whether he was not, at the time of the killing, in such a state of mind, by reason of intoxication, as would be unfavorable to the commission of a crime requiring deliberation and premeditation." The court gave the following instruction on this branch of the case: "The jury are further instructed that if the circumstances attending the killing, the weapon used, the nature and extent of the injury inflicted, and the amount of violence used, with all the other evidence in the case, satisfy them that Cross intended to kill McDonald, then the circumstance of his being drunk at the time is not sufficient to repel the inference of malice and premeditation arising out of such evidence, or to mitigate the offence from murder in the first degree to murder in the second degree, or any other less offence.”

The old and well established maxim of the common law is that drunkenness does not mitigate a crime in any respect; on the contrary, that it rather is an aggravation. Insanity is a full and complete defence to a criminal charge; yet drunkenness is a species of insanity, and is attended with a temporary loss of reason and power of self-control. But drunkenness is voluntary; it is brought about by the act of the party, whilst insanity is an infliction of Providence, for which the party affected is not responsible. This is understood to be the basis of the distinction which the law has made between these two kinds of dementia, and is the principal reason why the rules of law have been settled so as to allow the one madness to constitute an exemption from legal responsibility, but deny to the other any mitigating qualities whatever. There are also obvious reasons of public policy why the law should be so established.

The Cases Reviewed.

Some efforts have been made, of comparatively recent date - for the maxim we have quoted is as old as the common law itself - to qualify or to get rid of this ancient rule. Some very authoritative books on criminal law and some courts of great respectability, both in England and this country, have suggested interpretations and modifications of the axiom, tending, as we think, to subvert the principle itself for all practical purposes. Russell, in his work on Crimes, says: "Though voluntary drunkenness cannot excuse from the commission of a crime, yet when, as upon a charge of murder, the material question is, whether an act was premeditated or done only with sudden heat and impulse, the fact of the party being intoxicated has been holden to be a circumstance proper to be taken into consideration." The authority for this suggestion of Russell is the case of Rex v. Grindley, decided at the Worcester assizes in 1819; but in Rex v. Carroll,1 PARKE, B., in the presence of LITTLEDALE, J., said: "That case was not law."

In this country the subject is very ably discussed by Judge TURLEY, of the Supreme Court of Tennessee, in the case of Pirtle v. State,2 and by Judge WARDLAW, of South Carolina, in the case of State v. McCants.3 The authorities on both sides of the question are pretty generally referred to and reviewed in each of these cases, yet the results to which the two courts arrived were quite the opposite of each other. It is true the Supreme Court of Tennessee declare their maintenance of the ancient doctrine of the common law in all its original severity, and repudiate quite distinctly the case of Rex v. Grindley, and the dictum of Russell, based thereon; but by a process of ingenious reasoning the court seem to arrive at a conclusion indirectly overturning the principles and rules they start out with, maintaining and leading practically to the doctrine advanced by Russell and the decision of Justice HOLROYD in Rex v. Grindley. It is not perceived how drunkenness can be held to be a circumstance proper to be considered by a jury in determining the question of premeditation and malice, and at the same time be considered as no mitigation of the crime. It is said that there is no inconsistency in the two doctrines, because the fact of drunkenness may show that the crime charged was not committed. If the crime charged was not committed, then it is immaterial whether the defendant was drunk or sober; he is, in either event, entitled to an acquittal. But if all the circumstances in the case, except drunkenness, show that the crime charged was committed, and

17 C. & P. 145.

29 Humph. 663.

31 Spear, 392.

State v. Cross.

drunkenness alone is the circumstance to show that by reason of its intervention among the circumstances of the case, the crime was different from what it would have been in the absence of this circumstance, then it is manifest that this circumstance alone has produced the mitigation, and the old principle of the common law which pronounces drunkenness to be no mitigation is overturned.

In the case of Pirtle it is conceded in the opinion that, except in relation to the two grades of homicide distinguished in their code as they are in ours as murder in the first and second degrees, drunkenness would not be a legitimate subject of inquiry; that upon the question of provocation it should have no weight, but on the question of premeditation, it should. It is singular that in Rex v. Thomas,1 a British judge, Baron PARKE, took quite the opposite position. He is reported to have said to the jury: "I must also tell you that if a man makes himself voluntarily drunk, this is no excuse for any crime he may commit when he is so; he must take the consequences of his own voluntary act, or most crimes would go unpunished. But drunkenness may be taken into consideration in cases when what the law deems sufficient provocation has been given, because the question is, in such cases, whether the fatal act is to be attributed to the passion of anger excited by the previous provocation, and that passion is more easily excitable in a person when in a state of intoxication than when he is sober." The Supreme Court of South Carolina, in commenting on this charge of Baron PARKE, admit its propriety, if it is to be understood as maintaining that he who is in a state of voluntary intoxication is subject to the same rule of conduct and the same legal influences as the sober man, and that when a provocation is received which, if acted on instantly, would mitigate the offences of a sober man, and the question in the case of the drunken man is, whether that provocation was in truth acted upon, evidence of intoxication may be considered in deciding that question. But the remarks of Baron PARKE, thus construed, would clearly be unfavorable to the defence, and would substantially make intoxication an aggravation rather than a mitigation.

The case put by Judge TURLEY to illustrate his views, and probably as strong a case as could be imagined, is where the crime charged is murder by poison, and the question is, whether the poison was administered intentionally or by mistake. The facts supposed are that two medicines are on the table -the one poison and the other not — and

1 7 C. & P. 817.