Lancaster v. State.

he could not be guilty of murder in the first degree; on the other hand, if, notwithstanding his intoxication, he was capable of deliberation and premeditation, then he might be found guilty of murder in the first degree. This was all well enough; but the error is in making the whole effect of the prisoner's intoxication in reducing the killing to murder in the second degree depend upon whether the drunkenness was to such an extent as to render the prisoner incapable of deliberation and premeditation; whereas as we have seen a degree of intoxication short of this may, when taken in connection with the other facts, show that the killing resulted from a purpose formed in passion, and not deliberately and premeditatedly; and although there be no adequate provocation to reduce the offence to manslaughter, yet if in this mode the want of deliberation and premeditation appear, it may be reduced to murder in the second degree.

In a case involving life we do not feel at liberty to overlook this error, whatever we might think of the facts. The prisoner is entitled to a correct exposition of the law.

The judgment must therefore be reversed, and the case remanded for a new trial.

DRUNKENNESS-DEGREES OF MURDER-NEED NOT BE "EXCESSIVE" TO BE AN EXCUSE.

LANCASTER v. STATE.

[2 Lea, 575.]

In the Supreme Court of Tennessee, April Term, 1879.

Drunkenness - Need not be Excessive to be an Excuse. - Upon a trial for murder in the first degree or an assault with intent to commit murder in the first degree, drunkenness to any extent is relevant. Though it may not be so excessive as to render the prisoner incapable of deliberating, yet it may have excited him and produced a state of mind unfavorable to premeditation and deliberation.

APPEAL from the Circuit Court of Henderson County.
E. L. Bullock, for Lancaster.

DRUNKENNESS.

The Tennessee Cases Reviewed.

Attorney-General Lee, for the State.

DEADERICK, C. J., delivered the opinion of the court.

The defendant was convicted for assault with intent to commit murder in the first degree, and sentenced to fifteen years' imprisonment in the penitentiary. He has appealed from the judgment, and assigns error in the charge of the court.

The evidence shows that the prisoner was under the influence of liquor when the offence was committed. The circuit judge charged the jury: "If defendant had been drinking, much or little, it would be a circumstance for the jury to look to for the purpose of ascertaining whether the defendant's mind was so influenced by liquor as to incapacitate him from forming a deliberate and premeditated design, that is, his mind was so much influenced by liquor as to be incapable of contemplating the result of his acts, and if this was the condition of his mind, he could not be convicted of an assault with intent to commit murder in the first degree; but if his mind was not in that condition, and was not so much influenced by liquor as to prevent him from forming a deliberate and premeditated design, drunkenness would then be no excuse and would not lessen the crime."

In Swan v. State,1 Judge REESE, while very strongly stating the doctrine that "drunkenness is no excuse for crime," adds that "when the nature and essence of a crime is made by law to depend upon the peculiar state and condition of the criminal's mind at the time, and with reference to the act done, drunkenness, as a matter of fact, is a proper subject for consideration and inquiry by the jury. The question in such case is, what is the mental status? Is it one of self-possession, favorable to the formation of a fixed purpose by deliberation and premeditation, or did the act spring from existing passion, excited by inadequate provocation, it may be, on a peculiar temperament, or upon one already excited by ardent spirits?"

In 9 Humphrey,2 the conviction was for murder in the second degree, and it was held that the drunkenness of the offender in the case of murder in the second degree, or manslaughter, can form no matter of legitimate inquiry, but that it is material where the inquiry is whether the acts were done with deliberation or premeditation. In the case of Haile v. State,3 a charge very similar to the one in this case was held erroneous. The circuit judge had instructed the jury: "If defendant was so deeply intoxicated as to be incapable of forming in his mind a design deliberately and premeditately to kill," this would reduce the killing to murder in the second degree.

14 Humph. 136.

2 Pirtle v. State, 663.

3 11 Humph. 154.

State v. Tatro.

Judge GREEN, in commenting on the opinion of Judge REESE in the case in 4 Humph., says: "The court intended to be understood as distinctly indicating that a degree of drunkenness by which the party was greatly excited, and which produced a state of mind unfavorable to deliberation and premeditation, although not so excessive as to render the party absolutely incapable of forming a deliberate purpose, might be taken into consideration by a jury in determining whether the killing were done with premeditation and deliberation." In that case, as in this, the Circuit Court told the jury that intoxication could not thus reduce the offence, unless it existed to such a degree as to render the offender absolutely incapable of forming such a design.

All the cases cited hold that a drunken man may premeditate and deliberate, yet they hold that the evidence of the fact of intoxication is proper to go to the jury, when they are to find whether the act in question was done with deliberation and premeditation, and that the jury may determine whether the act is the result of deliberation and premeditation, or of passion aroused by inadequate provocation.

We are of opinion that the charge was erroneous in the particular indicated and the judgment will be reversed.

INTOXICATION-WHEN NOT RELEVANT ON DEGREE OF CRIME STATE v. TATRO.

[50 Vt. 483.]

In the Supreme Court of Vermont, January Term, 1878.

Intoxication-When not Relevant on Degree of Crime. Where a murder is done by some kind of wilful, deliberate and premeditated killing other than by means of poison or lying in wait, the degree of the offence is not lessened by proof that at the time it was committed the prisoner was intoxicated, any more than it would be if it had been perpetrated by means of poison or by lying in wait.

The prisoner was indicted and convicted of the murder of Alice Butler. He appealed.

The English Cases.

G. A. Ballard, William Farrington and F. W. McGettrick, for the prisoner.

H. R. Start, and H. S. Royce, for the State.

REDFIELD, J.:

(Omitting other questions.)

2

The more important question arises upon the charge of the court upon the effect of intoxication upon the grade of the offence. The court charged the jury that voluntary intoxication could neither excuse nor mitigate the offence. There is, perhaps, no principle or maxim of the common law of England more uniformly adhered to than that voluntary drunkenness does not excuse or palliate crime. Lord Coke, in his Institutes, declares that "whatever hurt or ill he doth, his drunkenness doth aggravate it."1 And in his Reports, he says: "Although he that is drunk is for the time non compos mentis, yet his drunkenness doth not extenuate his act or offence, nor turn to his avail." And Sir Matthew Hale, eminent alike for his humanity and learning, says of drunkenness, which he calls dementia affectata: "This vice doth deprive men of the use of reason, and puts many men in a perfect but temporary frenzy; * but by the laws of England, such a person shall have no privileges by his voluntary contracted madness, but shall have the same judgment as if he were in his right senses. And Lord Bacon, in his "Maxims of the Law," 3 in that comprehensive language which clearly defines, and gives the reasons for the rule of law, thus asserts the doctrine: "If a madman commits a felony, he shall not lose his life for it because his infirmity came by act of God; but if a drunken man commit a felony he shall not be excused, because the imperfection came by his own default." In Burrow's Case,4 HOLROYD, J., thus defines the rule: "It is a maxim in the law that if a man gets himself intoxicated he is answerable to the consequences, and is not excusable on account of any crime he may commit when infuriated with liquor, provided he was previously in a fit state of reason to know right from wrong." And the cases of Rex v. Grindley and Rex v. Meakin3 show the uniformity of this rule in the courts of England. In the case of People v. Rogers 6 the Supreme Court had reversed the conviction of Rogers, on the ground that the court had excluded the evidence of the respondent's drunkenness, as affecting the criminal intent. But the case was, by writ of error, carried to the Court of Appeals and the whole law upon that subject was reviewed and canvassed with great learning and ability by

13 Thomas' Coke Lit. 46.

2 Beverley's Case, 4 Coke, 123 b, 125 a.
3 Rule 5.

4 1 Lewin, 75, A. D. 1823.

57 C. & P. 297.

• 18 N. Y. 9.

State v. Tatro.

Chief Justice DENIO and HARRIS, J. HARRIS, J., says: "The Supreme Court seem to have understood that in all cases where without it the law would impute to the act a criminal intent, drunkenness would be available to disprove such intent. I am not aware that such a doctrine has before been asserted. It is certainly not sound. The adjudications upon the subject, both in England and in this country, are numerous and characterized by a singular uniformity of language and doctrine. They all agree that where the act of killing is unequivocal and unprovoked the fact that it was committed while the perpetrator was intoxicated cannot be allowed to affect the legal character of the crime." But it is insisted that under the statute which makes "degrees" of murder, drunkenness qualifies and mitigates the higher offence. The statute declares that "all murder which shall be perpetrated by means of poison, or by lying in wait, or any other kind of deliberate and premeditated killing, shall be deemed murder in the first degree." The same or similar statute has been enacted in most of the States. And many courts have allowed drunkenness to be shown in mitigation of the higher offence. In the case of State v. Johnson, the court held that intoxication, as tending to show that the prisoner was incapable of deliberation, might be given in evidence. Chief Justice SEYMOUR dissented, and FOSTER, J, who tried the case below, did not sit, so that the four judges constituting the court were, in fact, equally divided. The same case came before that court again, and the opinion was delivered by the same judge. The court were hard pressed with the former opinion in the same case, and that it had taken a departure from the common law. But the court repelled the intimation, and declared that "we have enunciated no such doctrine," but held "on a trial for murder in the first degree, which, under our statute, requires actual express notice, the jury might and should take into consideration the fact of intoxication, as tending to show that such malice did not exist." And in the same opinion, the judge says: "Malice may be implied from the circumstances of the homicide. If a drunken man takes the life of another, unaccompanied with circumstances of provocation or justification, the jury will be warranted in finding the existence of malice, though no express malice is proved. Intoxication, which is itself a crime against society, combines with the act of killing, and the evil intent to take life which necessarily accompanies it, and all together afford sufficient grounds for implying malice. Intoxication, therefore, so far from disproving malice, is itself a circumstance from

2