47

or to rape, or breaking into a house with intent to steal or commit some other felony therein, as in case of burglary,1o or passing a forged check or counterfeit money. In some states the statutes do not allow drunkenness to be shown to negative intent.48

When we come to treat of homicide, we shall see that murder, at common law, is the killing of a person with malice aforethought. We shall also see that, if the killing is done under what the law recognizes as sufficient provocation to exclude malice, the homicide is manslaughter only. To constitute the malice essential to murder at common law (or murder in the second degree under the statutes), no specific intent to kill is necessary, but general malice will suffice. Now, we have seen that in case of voluntary drinking, a drunken man, equally with a sober man, is presumed to intend his acts and their natural results, and that it is no excuse for him to say that he was drunk. Drunkenness, therefore, is no defense on a prosecution for murder, where the killing was done without provocation. Where, however, there is evidence of adequate provocation, drunkenness may be shown to prove that the act was committed under the influence of sudden passion, caused by the provocation, and not from some precedent malice, and thus to reduce the crime to manslaughter."

Rep. 44; State v. Grear, 28 Minn. 426, 10 N. W. 472, 41 Am. Rep. 296. And see State v. Garvey, 11 Minn. 154 (Gil. 95). So of atReg. v. Doody, 6 Cox, Cr. Cas. 463.

tempt to commit suicide.

45 State v. Donovan, 61 Iowa, 369, 16 N. W. 206; Head v. State, 43 Neb. 30, 61 N. W. 494.

46 State v. Bell, 29 Iowa, 316; People v. Phelan, 93 Cal. 111, 28 Pac. 855.

47 O'Grady v. State, 36 Neb. 320, 54 N. W. 556; Pigman v. State, 14 Ohio, 555, 45 Am. Dec. 558.

48 Bartholomew v. People, 104 Ill. 605, 44 Am. Rep. 97. And see State v. Cross, 27 Mo. 332; State v. Tatro, 50 Vt. 483.

49 Rex v. Thomas, 7 Car. & P. 817; In re Pearson, 2 Lewin, Cr.

In some cases it is said also that the fact that the accused was drunk may be considered in order to determine whether he acted upon a bona fide apprehension that his person or property was about to be attacked.50 This, however, would seem to be wrong. The defense involved is mistake of fact, and to make good this defense it must be shown, not only that the mistake was bona fide, but also that it was such a mistake as would have been made by a reasonable man; and a drunken man is not a reasonable one.31

Involuntary Intoxication

If a person involuntarily, through the stratagem or fraud of another, or the negligence of his physician, becomes so drunk that he does not know what he is doing, he is not criminally responsible for his acts.52 The drinking itself must be involuntary, for one cannot drink intoxicating liquors to excess, or voluntarily take liquor in a social way, and, after committing a crime, say he did not intend to become drunk.53

Dipsomania is a disease, creating an irresistible impulse to drink. As it is a disease, and the intoxication caused by it is involuntary, an act done by one suffering from it should be excused as in other cases of involuntary drunkenness.

Cas. 144; People v. Rogers, 18 N. Y. 9, 72 Am. Dec. 484; Buckhannon v. Com., 86 Ky. 110, 5 S. W. 358; Jones v. State, 29 Ga. 594; McIntyre v. People, 38 Ill. 514; Ferrell v. State, 43 Tex. 503; Wenz v. State, 1 Tex. App. 36; People v. Williams, 43 Cal. 344; Williams v. State, 81 Ala. 1, 1 South. 179, 60 Am. Rep. 133. Contra, Com. v. Hawkins, 3 Gray (Mass.) 463.

50 Marshall's Case, 1 Lew. 76.

51 Springfield v. State, 96 Ala. 81, 11 South. 250, 38 Am. St. Rep. 85; State v. Mullen, 14 La. Ann. 570.

52 1 Hale, P. C. 32; In re Pearson, 2 Lewin, Cr. Cas. 144.

58 McCook v. State, 91 Ga. 740, 17 S. E. 1019.

CLARK CR.L.3D ED.-6

54

This view has been taken by some courts; others, however, have refused to recognize drunkenness so caused as a defense. 55

It seems that if a person, through a susceptibility to stimulants, resulting from some cause of which he is not aware, is made drunk by a small quantity of liquor, which he has been accustomed to drink without such effect, he will not be held liable as in case of voluntary drunkenness. His intoxication, in such case, is more properly regarded as involuntary.5

CORPORATIONS

30. A corporation may be criminally liable for omission to perform a duty imposed upon it by law.

31. A corporation may be criminally liable for certain acts of misfeasance, such as maintaining a nuisance. It cannot be guilty of felony or perjury, or (it seems)

of offenses against the person, or of those involving malice or evil intention.

32. A corporation may be punished for contempt of court.

Nonfeasance

Although it was once said that "a corporation is not indictable, but the particular members of it are," " it is now well settled that a corporation may be indicted for omission

54 State v. Pike, 49 N. H. 399, 6 Am. Rep. 533; State v. Johnson, 40 Conn. 136; STATE v. HAAB, 105 La. 230, 29 South. 725, Mikell Illus. Cas. Criminal Law, 46.

55 Choice v. State, 31 Ga. 424; State v. Potts, 100 N. C. 457, 6 S. E. 657; State v. Harrigan, 9 Houst. (Del.) 369, 31 Atl. 1052.

561 Whart. Cr. Law, § 55. And see Roberts v. People, 19 Mich. 401.

57 Anon., 12 Mod. 559.

to perform a public duty imposed upon it by law." While it cannot be imprisoned, it may, if such punishment is provided for, be fined, and deprived of its charter and franchises. Thus a railway company may be indicted for neglect to keep in repair a bridge across a cut made by it, when its road crosses a public highway, so that travel is obstructed."

Misfeasance

60

Some cases have held that a corporation cannot be indicted for misfeasance; that it cannot commit a crime by positive or affirmative act—as by maintaining a nuisance by obstructing a navigable river. This view, however, has not prevailed, and it is well settled to-day that an indictment will lie against a corporation for many acts of misfeasance. Thus an indictment lies for maintaining a nuisance by obstructing a navigable river or a public highway."1

And

58 Reg. v. Birmingham & G. Ry. Co., 3 Q. B. 223; New York & G. L. R. Co. v. State, 50 N. J. Law, 303, 13 Atl. 1, affirmed in 53 N. J. Law, 244, 23 Atl. 168. Contra, in New York, People v. Equitable Gas-Light Co. (Gen. Sess.) 5 N. Y. Supp. 19.

59 New York & G. L. R. Co. v. State, supra.

60 State v. Manufacturing Co., 20 Me. 41, 37 Am. Dec. 38 (overruled by State v. City of Portland, 74 Me. 268, 43 Am. Rep. 586); Com. v. President, etc., of Swift Run Gap Turnpike Co., 2 Va. Cas. 362. And see State v. President, etc., of Ohio & M. R. Co., 23 Ind. 362. Corporations are now liable by statute in Indiana, State v. Baltimore & O. C. R. Co., 120 Ind. 298, 22 N. E. 307.

61 Reg. v. Great North of England Ry. Co., 2 Cox, Cr. Cas. 70; Com. v. Proprietors of New Bedford Bridge, 2 Gray (Mass.) 339; Louisville & N. R. Co. v. State, 3 Head (Tenn.) 523, 75 Am. Dec. 778; State v. Railroad Co., 91 Tenn. 445, 19 S. W. 229; St. Louis, A. & T. Ry. Co. v. State, 52 Ark. 51, 11 S. W. 1035; Donaldson v. Mississippi & M. R. Co., 18 Iowa, 280, 87 Am. Dec. 391; State v. Chicago, M. & St. P. R. Co., 77 Iowa, 442, 42 N. W. 365, 4 L. R. A. 298; State v. Roanoke Railroad & Lumber Co., 109 N. C. 860, 13 S. E. 719; State v. White Oak River Corp., 111 N. C. 661, 16 S. E. 331; State v. Railroad Co., 91 Tenn. 445, 19 S. W. 229; State v. Monongahela River R. Co., 37 W. Va. 108, 16 S. E. 519; Chicago & E. I. R. Co. v. People,

corporations have been held criminally liable for the unlawful sale of intoxicating liquor,62 for violating the Sunday laws, and for libel. On prosecution of a corporation for a nuisance by obstructing a navigable stream, the corporation contended that, while it might be held liable for nonfeasance or omission to perform a legal duty or obligation, it could not be held criminally liable for misfeasance. The indictment, however, was sustained. "Corporations," said the court, "cannot be indicted for offenses which derive their criminality from evil intention, or which consist in a violation of those social duties which appertain to men and subjects. They cannot be guilty of treason or felony, or of perjury or offenses against the person. But beyond this there is no good reason for their exemption from the consequences of unlawful and wrongful acts committed by their agents in pursuance of authority derived from them." 65 So it has been held that a corporation may be indicted under a statute making it an offense for any person to permit gaming on his premises."

66

44 Ill. App. 632; State v. Dubuque & S. C. R. Co., 88 Iowa, 508, 55 N. W. 727; Delaware Division Canal Co. v. Com., 60 Pa. 367, 100 Am. Dec. 570. And see Northern Cent. Ry. Co. v. Com., 90 Pa. 305; Pittsburgh & Allegheny Bridge Co. v. Com. (Pa.) 8 Atl. 217; Palatka & I. R. R. Co. v. State, 23 Fla. 546, 3 South. 158, 11 Am. St. Rep. 395; Savannah, F. & W. Ry. Co. v. State, 23 Fla. 579, 3 South. 204; State v. Warren R. Co., 29 N. J. Law, 353; State v. Central R. Co. of New Jersey, 32 N. J. Law, 220. A municipal corporation may be indicted for maintaining a nuisance, or neglecting to remove a nuisance which it has the power to remove. People v. Corporation of Albany, 11 Wend. (N. Y.) 539, 27 Am. Dec. 95; State v. City of Portland, 74 Me. 268, 43 Am. Rep. 586.

62 Stewart v. Waterloo Turn Verein, 71 Iowa, 226, 32 N. W. 275, 60 Am. Rep. 786 (action for penalty).

63 State v. Baltimore & O. R. Co., 15 W. Va. 362, 36 Am. Rep. 803. 64 State v. Atchison, 3 Lea (Tenn.) 729, 31 Am. Rep. 663.

65 Com. v. Proprietors of New Bedford Bridge, 2 Gray (Mass.) 339. 66 Com. v. Pulaski County Agricultural & Mechanical Ass'n, 92 Ky. 197, 17 S. W. 442.