State v. Welch.

question under two aspects. The defendant's intoxication is relied on as a defence, first, as rendering the defendant incapable of forming the intent to commit a crime; second, as rendering him ignorant of the fact that he was doing the act for which he is indicted.

His counsel insists that "the essence of an offence is the wrongful intent, without which crime cannot exist." This is true; but in cases like the present, where the law declares the act done by the defendant to be a crime, the only question is, did the defendant intend to do the act which the law has forbidden? He does not appear to have cast his vote by accident, or under the constraint of superior force. His act was and must have been wholly voluntary. Every man is conclusively presumed to intend his own voluntary acts. As the defendant must have intended to cast the second ballot, he must have intended to commit the offence charged.

The cases cited by his counsel, except one in California, are cases where the crime of which the prisoner was accused, consisted not merely in the doing of an act, with intent simply to do that act, but in the doing of an act, with intent thereby and by means thereof to compass a criminal end, to accomplish an unlawful purpose. Thus, in prosecutions for larceny, the act of the prisoner - the mere taking — does not constitute the offence, but the act coupled with the intent to steal; and the question is not, did the prisoner take and intend to take the goods? But, did he take them animo furandi? So, in trials for murder in the first degree, the question is not merely did the prisoner intend to inflict the blow (or do any other act), which resulted in death? But, had he a premeditated design to effect the death by means of the act done? And in State v. Garvey,1 the question was not, did the prisoner intend to make the assault? but, did he also intend to do great bodily harm? In such cases, where the crime consists not alone in the act done, and intended to be done, but also in the intent of the prisoner to effect certain results by means of the act, courts have sometimes admitted evidence of the prisoner's intoxication, as affecting his mental condition and the possibility or probability of his forming a premeditated design, or even an intention, to perpetrate, by means of the act done, the crime wherewith he is charged.2 So, in another class of cases for instance, prosecutions for passing counterfeit money-where the prisoner's knowledge of its falsity is the essence of the offence, he has been permitted to

1 11 Minn. 154.

2 Swan v. State, 4 Humph. 136; Pirtle v. State, 9 Humph. 663; State v. Schingen, 20 Wis. 74; State v. Bell, 29 Iowa, 316; Roberts

v. People, 19 Mich. 417, where many cases are collected. And see State v. Gut, 13 Minn. 361.

Drunkenness no Defence.

show that, when he uttered the money, he was so drunk as not to know that it was counterfeit.1

But it is obvious that such cases have no analogy to the case at bar. This defendant's motive and purpose in voting are alike immaterial. His offence is the same, although his two votes were cast for opposing candidates, so that the second neutralized the first. Here, the only question is, did the defendant, having voted in the First Ward, intend to vote a second time at the same election? In no case can a defendant, by proof of intoxication, rebut the legal presumption that he knows and intends his voluntary acts. In the instances above cited, the prisoner cannot show that, by reason of intoxication, he did not intend to take the goods he is charged with stealing; to strike the blow which resulted in death; to pass the money which proved to be counterfeit; nor can he show that, by reason of his intoxication, he did not know that he took the goods, struck the blow, or passed the money.

It is claimed that the defendant was so drunk when he voted the second time that he did not remember that he had already voted, and that the act was innocent, because done in ignorance of this material fact. But this plea of want of memory is like those of want of intent and want of knowledge. The defendant had first cast his vote but a few hours before. In the ordinary course of things, had he remained sober, it would be no excuse for his offence, that he had forgotten, at three o'clock in the afternoon, that he had voted in the morning. It is not pretended that he is not a man of ordinary memory, and he must be held to the reasonable exercise of the power of memory that he possesses. A man is not the less responsible for the reasonable exercise of his understanding, memory and will, because he has enfeebled his memory, perverted his will, and clouded his understanding, by voluntary indulgence in strong drink. A drunken man, equally with a sober man, is presumed to know and intend the acts which he does, and to remember the acts which he has done. There is, accordingly, no reason why this case should form an exception to the general rule of the criminal law, that "an intoxicated man shall have no privilege by his voluntary contracted madness, but shall have the same judgment as if he were in his right senses.

"2

In People v. Harris,3 cited by the defendant's counsel, the prisoner was indicted, under a statute similar to our own, for the offence of which this defendant stands convicted. It was held that evidence of

! Pigman v. State, 14 Ohio, 555.

and cases cited; People v. Garbutt, 17 Mich.

2 Hale P. C. 32; 1 Bish. Cr. Law, sect. 489,

9.

3 29 Cal. 678.

State v. Welch.

his intoxication could be admitted upon the question of his intent to commit a crime, and whether a crime had in fact been committed; but the opinion was strongly expressed, and often reiterated, that "a state of intoxication can be of no avail as an excuse for crime." It seems to us that a prisoner would have no need for an excuse for an act which his intoxication made innocent, and no crime. There can be no practical difference in the result between holding that intoxication is an excuse for crime, and holding that the acts of a man sufficiently intoxicated cannot be criminal. In either case, a man would be exempted from criminal responsibility for acts done in a state of voluntary intoxication. This doctrine is novel, anomalous and startling. It is a dangerous innovation upon the well established principles of the criminal law, and we have no hesitation in rejecting it.

The tenth charge of the court is taken from 1 Bishop Cr. Law.' The same doctrine, as stated in almost the same words in the following section, was admitted to be the law in Roberts v. People. The correctness of the author's theory of the rule, by which drunken men are held to intend their criminal acts, is immaterial. The rule itself is correctly stated.

There was no practical error in the eleventh instruction, viz.: "The defendant is equally guilty whether he intended the act complained of or not. The only fact for the jury to find in this case is, whether or not the defendant deposited a ballot both at the First and Second Wards of this city, on the occasion of the city election, held April 1, 1873. And if you find that he did so deposit the two ballots, you will find him guilty, in manner and form as charged in the indictment."

The language of this instruction is not happily chosen, and cases might easily be supposed where such a charge would unduly restrict the province of the jury, and mislead them into an erroneous verdict. But, as we have already shown, the present case falls within the general rule, that men are presumed to intend their voluntary acts; and it was the duty of the jury, upon satisfactory proof of the acts done, to find the intent in accordance with the legal presumption. The instruction, in its application to the facts of this case, was therefore substantially correct.

The judgment and the orders appealed from are affirmed, and it is directed that the sentence pronounced by the District Court be executed.

People v. Harris.

VOTING TWICE AT ELECTION — INTENT — DRUNKENNESS RELEVANT.

PEOPLE V. HARRIS.

[29 Cal. 678.]

In the Supreme Court of California, April, 1866.

Voting Twice at Election-Intent-Drunkenness.-The act of voting more than once at the same election is not a crime unless done knowingly and with wrong intent. Therefore a person charged with this crime may show that he was intoxicated at the time he committed the act, not as an excuse for the crime, but to enable the jury to determine whether his mental condition was such that he knew he was committing an offence.

APPEAL from the County Court, City and County of San Francisco. The facts are stated in the opinion of the Court.

Alexander Campbell, for appellant.

J. G. McCullough, Attorney-General, for the People.

By the court, CURREY, C. J.-The defendant was indicted for voting twice at the general election held on the 6th of September, 1865. To the indictment he pleaded not guilty. Upon the trial he was found. guilty, and sentenced to be imprisoned in the State prison for one year.

It is provided by statute that any person who shall vote more than once at any election shall be deemed guilty of a felony, and, upon conviction, shall be imprisoned in the State prison for a term not less than one year nor more than five years.1

The evidence shows that the defendant voted at the election polls of the Fifth District of San Francisco at about ten o'clock in the forenoon of the day above mentioned, when his right to vote was challenged on the ground that he was not a resident of the district. The challenge being withdrawn, the defendant voted. About two or three o'clock in the afternoon the defendant returned to the same polls very much intoxicated and again offered to vote. The same person who had challenged his right to vote at that place in the morning informed him that he had voted before, and that he would get himself in trouble if he

'Laws 1858, pp. 165, 166.

People v. Harris.

voted again. The defendant, in reply, vehemently protested that he had not voted, and declared his willingness to so make oath. The oath prescribed by the statute was then administered to him by the proper officer, to which he responded in the affirmative, and then voted the second time.

When the cause was submitted to the jury, the court charged them as follows: "The indictment charges that the defendant, at an election for members for the State Senate and Assembly, held on the sixth day of September, 1865, in the Fifth Election District of this city and county, did, knowingly, unlawfully and feloniously, vote more than once at the same election. The language of the statute upon which the indictment is framed is, 'any person who shall vote more than once at any election shall be deemed guilty of a felony.' The word knowingly is not in the statute, and although used in the indictment, yet it may be rejected as surplusage, for the State is not bound to support by proof the allegation in the indictment, that the act of double voting was knowingly done. The statute makes the act of voting more than once at the same election, and not the act of voting knowingly more than once at any election, a crime. If, therefore, you are satisfied from the testimony in the case that the defendant, at an election for members of the State Senate and Assembly, held on the sixth day of September, 1865, in the Fifth Election District in this city and county, voted twice, then, although the defendant may at the time have been under the influence of intoxicating liquors, it is your duty to bring in a verdict of guilty against him; for drunkenness is no excuse or justification for the commission of a criminal act, and evidence of voluntary intoxication is properly admissible as affecting crime only in those cases in which it is necessary to ascertain whether the accused was in a mental condition which enabled him to form a deliberately premeditated purpose, and this is not one of those cases. The counsel for the defendant requests me to charge you that every crime involves a union of act and intent or criminal negligence. This is true. The law does not punish a man for his intention, nor for his act disconnected from his intention, but act and intent must unite to constitute a crime."

At the conclusion of the charge the counsel for the defendant requested the court to withdraw that portion of it which stated that the act of double voting need not be knowingly done, which the court declined to do.

The defendant's counsel excepted to each and every portion of the charge except that given at the request of the defendant's counsel, and