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Keenan v. Commonwealth.

intoxication produces a state of mind that is easily excited by provocation, therefore the crimes committed under such intoxication and provocation are less criminal than when committed in a state of sobriety under the same provocation. We are very sure that no statute will ever announce such a rule, and that we are not authorized to announce it in interpreting this statute.

Stated in its most general form, it amounts to this: that because the mind usually receives provocation with an intensity proportioned to its own excitement or excitability, therefore the act of provocation must be measured, not by its own character and its ordinary effect, but by the state and habit of the mind that receives it. Then measured by this rule, the crimes of a proud, or captious, or selfish, or habitually illnatured man, or of one who eats or fasts too much, or of one who is habitually quarrelsome, covetous, dishonest, or thievish, or who by any sort of indulgence, fault or vice renders himself very easily excitable, or very subject to temptation, are much less criminal than those of a moderate, well-tempered and orderly citizen, because to the former a very small provocation or temptation becomes adequate to excuse or palliate any crime. If such were the rule, a defendant would be much more liable to injure than benefit his case, by showing a good character, and the law would present no inducement to men to try to rise to the standard of even ordinary social morality.

Of course it is impossible that such a principle can be a rule of law. If it were admitted, it could not be administered, for no judicial tribunal can have time or competence for such a thorough investigation of the special character or state of each individual mind as the rule requires, and therefore it would necessarily jump to a conclusion such as the caprice, or prejudice, or other influence of the moment would dictate.

Indeed, if we admit the principle, and carry it out logically, we shall abolish law entirely as a compulsory rule of civil conduct; for we shall measure all crime and all duty by the conscience of the individual, and not by the social conscience, and no contract could be binding, no debt collected, no duty enforced, and no crime punished, unless where the defendant's conscience feels that it ought to be, and thus courts would be useless, and social organization impossible. No such principles can stand before man's natural tendency to social organization, or before the power and right of an organized society. Individual or even social charity may often act upon the principle, but law excludes it from its sphere. Very few persons practically admit it. Even those individuals, sects and factions that are most zealous for the rights of the individual conscience, have very often been the least respectful of the rights of

Intoxication.

conscience of any other society or faction than their own, and of the conscience of other persons, and the most inclined to exert moral and physical force, in order to impress their opinions and rules of action upon others, and thus the extreme of individualism runs into tyranny or despotism.

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In most matters what is usual and ordinary in any given society is the law of that society. All, therefore, must come up to the standard of the usual and ordinary or take the consequences. Those who in their conduct fall below the standard must, to that extent, submit to the condemnation of society, either legally or morally, according as rules transgressed are civil or only moral. And those whose conduct rises above that standard and yet harmonizes with it must always be accepted as highly meritorious citizens. And this principle applies here; for men who degrade themselves below the ordinary level of social morality, by bad conduct or habits, do not thereby relieve themselves from having their acts and duties judged by the ordinary rules of social action. They cannot set up their own vices as a reason for being set into a special class that is to be judged more favorably than other persons.

The prisoner was somewhat intoxicated when, with six or seven companions, he entered the passenger car, and he and they seem to have behaved badly and noisily, and used very profane language there, so that several persons preferred walking and left the car. Though they were twice requested by the conductor to be quiet, the prisoner used abusive and threatening language in reply, and his companions and he persisted in their ill-conduct, and he expressed his determination to remain. Then the conductor took him by the lapel of his coat, and was proceeding to put him out, when he struck the conductor, and was struck in return, and then his companions joined in the scuffle, and he drew a knife, and by several strokes of it, mortally wounded the conductor. It is to such evidence as this that the judge's charge relates, and it seems to be entirely relevant, adequate and correct, and free from any invasions of the functions of the jury. And we say this with special reference to those parts of the charge which say that the prisoner ought to be taken to have intended the natural and usual consequences of the act of using the knife in the way he did; that a conductor had a right to put out a passenger so misbehaving; that the prisoner's resistance and the blow struck by him were his own provocation of the struggle, in which he used the knife, and neither the struggle nor the blow received in return can be any excuse for its use. None of the other points need any special notice. Nor do we find any error in impanelling the jury or in the admission or rejection of evidence. We

Pigman v. State.

have considered the prisoner's case with all the caution and concern which its terrible penalties are calculated to inspire, and it is with much sorrow on his account, that we are compelled to say that we discover no valid ground for granting him a new trial.

Sentence affirmed, and record remitted

DRUNKENNESS-PASSING COUNTERFEIT BILL — KNOWLEDGE.

PIGMAN v. STATE.

In the Supreme Court of Ohio, January Term, 1846.

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Drunkenness of the accused, at the time of passing the alleged counterfeit bill, is a circumstance proper to be submitted to the consideration of the jury, and should have its just weight in determining whether the accused knew the bill to be counterfeit.

This is a writ of error to the Court of Common Pleas of Marion County.

The plaintiff in error was indicted for uttering, publishing, bartering, and disposing of counterfeit bank bills. The proof was the passing of a counterfeit bank bill of twenty dollars. A verdict of guilty was found by the jury, and the plaintiff was sentenced to four years' imprisonment in the penitentiary. A number of errors are assigned. But the one chiefly relied upon, or at all available, as disclosed in the bill of exceptions, is that the court ruled out evidence offered by the accused, to show that he was drunk at the time he passed the bill, and therefore did not know what he was doing, or that the bill was counterfeit.

The case was argued for the defendant by James H. Godman. No argument was submitted for the plaintiff.

READ, J.-Drunkenness is no excuse for crime; yet, in that class of crimes and offences which depend upon guilty knowledge, or the coolness and deliberation with which they shall have been perpetrated, to constitute their commission, or fix the degree of guilt, it should be submitted to the consideration of the jury. If this act is of that nature that

Relevant On Question of Knowledge.

the law requires it should be done with guilty knowledge, or the degree of guilt depends upon the calm and deliberate state of the mind at the time of the commission of the act, it is proper to show any state or condition of the person that is adverse to the proper exercise of the mind, and the undisturbed possession of the faculties. The older writers regarded drunkenness as an aggravation of the offence, and excluded it for any purpose. It is a high crime against one's self, and offensive to society and good morals; yet every man knows that acts may be com mitted in a fit of intoxication that would be abhorred in sober moments. And it seems strange that any one should ever have imagined that a person who committed an act from the effect of drink, which he would not have done if sober, is worse than the man who commits it from sober and deliberate intent. The law regards an act done in sudden heat, in a moment of frenzy, when passion has dethroned his reason, as less criminal than the same act when performed in the cool and undisturbed possession of all the faculties. There is nothing the law so much abhors as the cool, deliberate, and settled purpose to do mischief. That is the quality of a demon; whilst that which is done on great excitement, as when the mind is broken up by poison or intoxication, although, to be punished, may, to some extent, be softened and set down to the infirmities of human nature. Hence not regarding it as an aggravation - drunkenness, as anything else showing the state of mind or degree of knowledge, should go to the jury. Upon this principle, in modern cases, it has been permitted to be shown that the accused was drunk when he perpetrated the crime of killing, to rebut the idea that it was done in a cool and deliberate state of the mind, necessary to constitute murder in the first degree. The principle is undoubtedly right. So, on a charge of passing counterfeit money; if the person was so drunk that he actually did not know that he had passed a bill that was counterfeit, he is not guilty. It oftentimes requires much skill to detect a counterfeit. The crime of passing counterfeit money, consists of knowingly passing it. To rebut that knowledge, or to enable the jury to judge rightly of the matter, it is competent for the person charged to show that he was drunk at the time he passed the bill. It is a circumstance, among others, entitled to its just weight.

Judgment reversed and cause remanded.

46

State v. McCants.

DRUNKENNESS-PROVOCATION —WHEN EVIDENCE OF INTOXICA

TION TO BE CONSIDERED.

STATE v. MCCANTS.

[1 Spears, 384.]

In the Court of Appeals of South Carolina, May, 1843.

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1 One in a State of Voluntary Intoxication is subject to the same rules of conduct and the same legal inferences as a sober man.

2. Provocation - Evidences of Drunkenness Relevant.-But where a provocation has been received which if acted upon instantly would mitigate the offence of a sober man, and the question in the case of a drunken man is whether that provocation was in truth acted on, evidence of intoxication may be considered.

Tried before WARDLAW, J. at Charleston, May term, 1842.

The indictment charged Thomas N. McCants with having murdered William Ladd, on 19th of March, 1842, by stabbing him to the heart with a pocket knife. There was evidence that the prisoner was drunk at the time.

Leaving to the jury the evidence as to prisoner's being drunk, the court instructed them that upon the question whether the prisoner acted from a former grudge, or from sudden heat upon new provocation, his intoxication might be considered as a condition frequently predisposing to forgetfulness of former injuries and susceptibility of new offence; but that in deciding the question whether there was reasonable time for cooling, drunkenness was not to be considered. For the law has no more tenderness for the frenzy of the voluntary demon than for the diabolical malignity of temper, which never cools in its thirst for revenge; and that in fine if the jury took the view which the court did of the previous threat and of the first fight, then the questions were, did the prisoner cool, or was there time for a reasonable man to have cooled? In considering these questions, the presiding judge exhorted the jury to give the prisoner the benefit of all rational doubts; I pointed out (said the court) the blood trickling from his face after the first fight the violence then exhibited by both parties, and the struggling between the prisoner

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