consequences." This charge was given in reliance upon the general principle that drunkenness is no excuse for crime. While it is true that drunkenness cannot excuse crime, it is equally true that when a certain intent is a necessary element in a crime, the crime cannot have been committed when the intent did not exist. In larceny the crime does not consist in the wrongful taking of the property, for that might be a mere trespass; but it consists in the wrongful taking with felonious intent; and if the defendant, for any reason whatever, indulged no such intent, the crime cannot have been committed. This was fully explained in Roberts v. P., 19 Mich. 401, and is familiar law. See also Nichols v. S., 8 Ohio St. 435; R. v. Moore, 3 C. & K. 319. The circuit court should be advised to set aside the verdict and grant a new trial. P. v. Walker, 38 Mich. 156, B. 271.

(Tex. Ct. of App., 1889.) Same-Intent to Rape. Pen. Code, art. 40a, provides that neither intoxication nor temporary insanity produced by the recent voluntary use of liquor shall constitute an excuse for crime, but that evidence of such temporary insanity may be shown in mitigation of the penalty, and, in cases of murder, for the purpose of determining the degree. Held, that, where a specific intent is necessary to the commission of a crime (in this case assault with intent to rape), the statute does not eliminate that element; and, in determining the existence of such intent, the jury should be allowed to consider the mental condition of the accused, and the fact that he was intoxicated at the time of the alleged commission. Conviction reversed. Reagan v. S., 28 Tex. App. 227, 12 S. W. 601.

$58. "That the Defendant was Insane."

(Eng. House of Lords Question Judges, 1843.) Leading English Case-Right and Wrong Test. One M'Naghten was tried for killing a Mr. Drummond, private secretary of Sir Robert Peel, mistaking him for the premier himself. He was acquitted on the ground of insanity, and his acquittal caused so much excitement that the house. of lords addressed certain questions to the judges of the superior courts of England in regard to the law of insanity in certain cases. Accordingly the judges attended the house of lords; when, without any argument, the questions of law were propounded to them; and the opinion of all the judges except Maule, J., was delivered by LORD TINDAL, C. J. The first question proposed by your lordships is this: "What is the law respecting alleged crimes committed by persons afflicted with insane delusion in respect of one or more particular subjects or persons; as, for instance, where at the time of the commission of the alleged crime the accused knew he was acting contrary to law, but did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some sup

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posed public benefit?" In answer to which question, assuming that your lordships' inquiries are confined to those persons who labor under such partial delusions only, and are not in other respects insane, we are of opinion that, notwithstanding the party accused did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some public benefit, he is nevertheless punishable according to the nature of the crime committed, if he knew at the time of committing such crime that he was acting contrary to law; by which expression we understand your lordships to mean the law of the land. Your lordships are pleased to inquire of us, secondly: "What are the proper questions to be submitted to the jury, where a person alleged to be afflicted with insane delusion respecting one or more particular subjects or persons is charged with the commission of a crime (murder, for example), and insanity is set up as a defense?" And, thirdly: "In what terms ought the question to be left to the jury as to the prisoner's state of mind at the time when the act was committed?" And as these two quesions appear to us to be more conveniently answered together, we have to submit our opinion to be, that the jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong. The mode of putting the latter part of the question to the jury on these occasions has generally been, whether the accused at the time of doing the act, knew the difference between right and wrong; which mode, though rarely, if ever, leading to any mistake with the jury, is not, as we conceive, so accurate, when put generally and in the abstract, as when put with reference to the party's knowledge of right and wrong in respect to the very act with which he is charged. If the question were to be put as to the knowledge of the accused solely and exclusively with reference to the law of the land, it might tend to confound the jury, by inducing them to believe that an actual knowledge of the law of the land was essential in order to lead to a conviction; whereas the law is administered upon the principle that every one must be taken conclusively to know it, without proof that he does know it. If the accused was conscious that the act was one which he ought not to do, and if that act was at the same time contrary to the law of the land, he is punishable; and the usual course therefore has been to leave the question to the jury, whether the party accused had a sufficient degree of reason to know that he was doing an act that was wrong; and this course we think is correct, accompanied with such observations and explanations as

the circumstances of each particular case may require. The fourth question which your lordships have proposed to us is this: " If a person under an insane delusion as to existing facts, commits an offense in consequence thereof, is he thereby excused?" To which question the answer must of course depend on the nature of the delusion; but making the same assumption as we did before, namely, that he labors under such partial delusions only, and is not in other respects insane, we think he must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real. For example, if under the influence of his delusion he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes, in self-defense, he would be exempt from punishment. If his delusion was that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment. M'Naghten's Case, 10 Clark & Fin. 200, 8 Scott (N. R.) 595, 1 Car. & K. 130, B. 231, Ke. 43, 2 L. 150, Mi. 256.

(Mass. Sup. Judicial Ct., 1844.) Same-A Leading American Case. Defendant killed the warden of the prison in which he was confined. The evidence tended to show that he was impelled to the act by a baseless notion that the warden was about to confine him in a dark room alone. The only defense was insanity. SHAW, C. J., said to the jury: "In these cases, the rule of law, as we understand it, is this: A man is not to be excused from responsibility, if he has capacity and reason sufficient to enable him to distinguish between right and wrong as to the particular act he is then doing,-a knowledge and consciousness that the act he is doing is wrong and criminal, and will subject him to punishment. In order to be responsible, he must have sufficient power of memory to recollect the relation in which he stands to others, and in which others stand to him; that the act he is doing is contrary to the plain dictates of justice and right, injurious to others, and a violation of the dictates of duty. On the contrary, although he may be laboring under partial insanity, if he still understands the nature and character of his act, and its consequences; if he has a knowledge that it is wrong and criminal, and a mental power sufficient to apply that knowledge to his own case, and to know that, if he does the act he will do wrong and receive punishment,—such partial insanity is not sufficient to exempt him from responsibility for criminal acts. If, then, it is proved, to the satisfaction of the jury, that the mind of the accused was in a diseased and unsound state, the question will be whether the disease existed to so high a degree that for the time being it overwhelmed the reason, conscience, and judgment, and whether the prisoner, in committing the homicide, acted from an irresistible and uncontrollable impulse. If so, then the act was not the act of a voluntary agent, but the involuntary act of the body, without the concurrence of a mind directing it. The character of the mental disease relied upon to

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excuse the accused in this case is partial insanity, consisting of melancholy, accompanied by delusion. The conduct may be in many respects regular, the mind acute, and the conduct apparently governed by rules of propriety, and at the same time there may be insane delusion by which the mind is perverted. The most common of these cases is that of monomania, when the mind broods over one idea and cannot be reasoned out of it. This may operate as an excuse for a criminal act in one of two modes: 1. Either the delusion is such that the person under its influence has a real and firm belief of some fact, not true in itself, but which, if it were true, would excuse his act,-as where the belief is that the party killed had an immediate design upon his life, and under that belief the insane man kills in supposed self-defense 2. Or this state of delusion indicates to an experienced person that the mind is in a diseased state; that the known tendency of that diseased state of the mind is to break out into sudden paroxysms of violence, venting itself in homicide or other violent acts towards friend or foe indiscriminately; so that, although there were no previous indications of violence, yet the subsequent act, connecting itself with the previous symptoms and indications, will enable an experienced person to say that the outbreak was of such a character that for the time being it must have overborne memory and reason; that the act was the result of the disease and not of a mind capable of choosing; in short, that it was the result of uncontrollable impulse, and not of a person acted upon by motives, and governed by the will. The questions, then, in the present case, will be these: 1. Was there such a delusion and hallucination? 2. Did the accused act under a false but sincere belief that the warden had a design to shut him up, and, under that pretext, destroy his life; and did he take this means to prevent it?" * * Verdict, not guilty. C. v. Rogers, 7 Metc. 500, 41 Am. Dec. 458, 1 B. & H. 87-n, B. 235, 2 L. 158.

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(New York, Sup. Ct., 1848.) Manifestations and Tests of Insanity. The defendant was convicted of murder of Mrs. Russell. The following is from the charge to the jury, by BARCULO, J. The question of insanity, upon which this case turns, always invokes difficult and intricate inquiries. It is a subject upon which much has been said and written by way of theory and speculation, and it cannot be denied that the numerous adjudications are not altogether reconcilable. Without detaining you with technical terms, it will be sufficient to say that insanity assumes a variety of forms, and has many names. Among these are: (1) general insanity; (2) partial insanity; (3) periodical insanity; (4) moral insanity; (5) drunken insanity. The first is insanity applied to objects generally; the second is applied to single objects; the third occurs at periods with sane intervals; the fourth is a morbid perversion of the natural feelings, affections, etc.; and the fifth is that which results directly from intoxication. Now, the rules applicable to crimes committed in any of these

degrees of insanity are mainly those of sound reason. Thus it is conceded to be the law that insanity occasioned directly by intoxication is no excuse for a crime committed by one in that state. If it were otherwise, a man by drinking to excess could divest himself of legal responsibility, and gratify his thirst for vengeance with impunity. In regard to the other kinds of insanity, the rule is laid down in great variety of terms. The English rule is thus stated in Bellingham's Case by Chief Justice Mansfield: "In order to support the defense of insanity, it ought to be proved by the most distinct and unquestionable evidence that the prisoner was incapable of judging between right and wrong; that in fact it must be proved beyond all doubt that at the time he committed the atrocious act with which he stood charged he did not consider that murder was a crime against the laws of God and nature." As long as they could distinguish good from evil, they would be amenable for their conduct. Lord Lyndhurst, in R. v. Offord, put this question: "Did the prisoner know that in doing the act, he offended against the laws of God and man?" According to the Scotch rule, the insanity must be of such a kind as entirely to deprive the prisoner of the use of reason, as applied to the act in question, and the knowledge that he was doing wrong in committing it. If, though somewhat deranged, he is able to distinguish right from wrong in his own case, and to know that he was doing wrong in the act which he committed, he is liable to the full punishment of his criminal acts. * The Massachusetts rule is that, if the imaginary facts would, if true, justify the act, then he is excusable-as, when the prisoner supposed that the person was about to kill him, and he slays the other in self-defense. There must be an immediate apprehension of danger.

Applying this principle to the present case, if the prisoner really believed that Mrs. Russell was in the act of committing a great personal injury to him, and supposed that he shot her in self-defense, he would be excusable. But it would be no defense that he supposed Russell or his wife had injured him to any extent, because, if it were true, it would be no justification of the act. If a breach of promise or anything of that kind was the origin of the act, and this was done by way of revenge, he is not excusable. A simple and sound rule may be thus expressed: A man is not responsible for an act when, by reason of involuntary insanity or delusion, he is at the time incapable of perceiving that the act is either wrong or unlawful. Verdict, guilty.

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Executed. P. v. Pine, 2 Barb. 566, F. 69, 2 L. 234.

(Eng. Assize, 1848.) Dread of Poverty and Destitution were the reasons assigned by the prisoner for killing his wife and children with whom he had always been on most affectionate terms. He had also attempted suicide. PARKE, B., told the jury that there was but one question for their consideration now; viz., whether