144. In 1819, Justice Holroyd decided that the fact of drunkenness might be taken into consideration in determining the question whether the act was premeditated or dope only with sudden heat and impulse; Rex v.. Grundley, 1 Russ. Cr. 8. This particular de ,cIsion, however, was, a few years afterwards, ,pronounced to be not correct law ; 7 C. & P.
145. Again, it was held that drunkenness, by rendering the more excitable un• der provdcation, might- be taken into colloid.
eration in determining the sufficiency of the provocation; 7 C. & P. 817. In Rex v. Monk house, 4 Cox, Cr. Cas. 55, it was declared that there might exist a state of drunken ness which takes away the power of form ing any specific intention.
In this country, courts have gone still further in regarding drunkenness as incom patible with some of the elements of crime. It has been held, where murder was defined to be wilful, deliberate, malicious, and pre meditated killing, that the existence of these attributes is not compatible with drunken ness; State v. Bullock, 13 Ala. 413; Swan v. State, 4 Humphr. (Tenn.) 136; Haile v. State, 11 Humphr. (Tenn.) 154; State v. McCants, 1 Speers (S. C.) 384; and when a man's intoxication is so great as to render him unable to form a wilful, deliberate, and premeditated design to kill, or of judging of his acts and their legitimate consequences, then it reduces what would otherwise be murder in' the first degree to murder in the second degree; People v. Harris, 29 Cal. 678; Com. v. Jones, 1 Leigh (Va.) 612 ; People v. Robinson, 2 Park C. R. (N. Y.) 235; Ayres v. State (Tex.) 26 S. W. 396; Mooney v. State, 33 Ala. 419; State v. Johnson, 41 Conn. 584; Rafferty v. People, 66 Ill. 118; Jones v. Com., 75 Pa. 403. See Bernhardt v. State, 82 Wis. 23, 51 N. W. 1009; State v. Zorn, 22 Or. 591, 30 Pac. 317; People v. Vincent, 95 Cal. 425, 30 Pac. 581. But where one who intends to kill another becomea vol untarily intoxicated for the purpose of car rying out the. Intention, the intoxication will have no effect upon the act ; Garner v. State, 28 Fla. 113, 9 South. 835, 29 Am. St. Rep. 232; Springfield v. State, 96 Ala. 81, 11 South. 250, 38 Am. St. Rep. 85. See People v. Young, 102 Cal. 411; 36 Pac. 770; and if one person gets another drunk and per suades him to commit a crime, he is legally responsible; McCook v. State, 91 Ga. 740, 17 S. E. 1019.
Intotication does not excuse crime, but may show an absence of malice; Wilkerson v. Com., 88 Ky. 29, 9 S. W. 836, 10 Ky. L. Rep. 656; Engelhardt v. State, 88 Ala. 100, 7 South. 154; and the burden of proof is on the defendant to show intoxication to such an extent as to render him incapable of mal ice; State v. Hill, 46 La. Ann. 27, 14 South. 294, 49 Am. St. Rep. 316.
If one commits robbery while so drunk as not to know what he was doing, he will not be deemed to have taken the property with a felonious intent ; Keeton v. Com., 92 Ky. 522, 18 S. W. 359.
It has been already stated that strong drink sometimes, in consequence of injury to the head, or some peculiar constitutional susceptibility, produces a paroxysm of fren zy immediately, under the influence of which the perSon commits a criminal act.' Cases of this kind have been too seldom tried to make it quite certain how they would be regarded in law. It is probable, however, that the plea of insanity would be deprived of its va lidity by the fact that, sane or insane, the party was confessedly drunk. In a case
where injury of the head had been followed by occasional paroxy.sms of insanity, in one of which the prisoner killed his wife, it ap peared that he had just been drinking, and that intoxication had sometimes brought on the paroxysms, though they were not always preceded by drinking. The court ruled that if the mental disturbance were produced by intoxication it was not a valid defence; and accordingly the prisoner was convicted and executed. Trial of M'Donough, Ray, Med. Jur. 514. The principle is that if a person voluntarily deprives himself of reason, he can claim no exemption from the ordinary consequences of crime; 3 Par. & Fonbl. Med. J. 39; and the courts hold that voluntary in toxication is no justification or excuse for crime; State v. O'Neil, 51 Kan. 651, 33 Pac. 287, 24 L. R. A. 555 ; People v. Bell, 49 Cal. 485; State v. Bullock, 13 Ala. 413; Estes v. State, 55 Ga. 31; State v. Tatro, 50 Vt. 483 ; Colbath v. State, 4 Tex. App. 76. Milder views have been advocated by writers of note, and have appeared in judicial deci sions. Alison, referring to the class of cases just mentioned, calls It inhuman to visit them with the extreme punishment otherwise suit able. Prin. of Crim. Law of Scotland 654. See, also, 23 Am. Jur. 290. When a defend ant sets up the defence of delirium tremens, and there is evidence to support the plea, the court in charging the jury is bound to set forth the law applicable to such a de fence; 12 Rep. 701. This disease is a species of insanity, and one who labors under it is not responsible for his acts; 1 Wh. & Stile, Med. Jur. § 202. While drunkenness is no excuse for crime, mania a potu is; State v. Potts, 100 N. C. 457, 6 S. E. 657. See People v. Williams, 43 Cal. 344; Fisher v. State, 64 Ind. 435; Lanergan v. People, 50 Barb. (N. Y.) 266. Where dipsomania affects the in tellect and not merely the will, it may be a defence; 3 Witth. & Beck. Med. Jur. 506. See Flanigan v. People, 86 N. Y. 559, 40 Am. Rep. 556; People v. Leary, 105 Cal. 486, 39 Pac. 24. Where a person, in regard to, a particular act, though knowing right from wrong, has lost his power to discriminate, in consequence of mental disease, be will be exempt from crime; 3 Witth. & Beck. 507. See State v. McDaniel, 115 N. C. 807, 20 S. E. 622. Dipsomania would hardly be con sidered, in the present state of judicial opin ion, a valid defence in a capital" case, though there have been decisions which have allow ed it, holding the question whether there is such a disease, and whether the act was committed tinder its influence, to be ques tions of fact for the jury ; State v. Pike, 49 N. H. 399„6 Am. Rep. 533; State v. Johnson, 40 Conn. 136; 1 Bish. Cr. Law § 409. '. The law does recognize two kinds of in culpable drunkenness, viz.: that which is produced by the "unskilfulness of the physi cian," and that which is produced by the "contrivance of enemies." Russ. Cr. 8. To these there may perhaps also be added that above described, where•the party drinks no more liquor than he has habitually used without being intoxicated, but which exerts an unusually potent effect on the brain, in consequence of certain pathological condi tions. See Com. v. Whitney, 5 Gray (Mass.) 86; 1 Benn. & H. Lead. Cr. Cas. 113. See INSANITY ; DELIRIUM TREMENS.