24 S. C. 439; 58 Am. Rep. 262; Shanahan v. Com., 8 Bush, 463; 8 Am. Rep. 465; Beck v. State, 73 Ga. 452; Upstone v. People, 109 111. 169; Hopt v. People, 104 U. S. 631. See, also, 28 Eng. Rep. 659; 7 Am. St. Rep. 21.

Voluntary intoxication amounting to phrenzy, no defense where a homicide is committed without provocation. Flanigan v. People, 86 N. Y. 554; 40 Am. Rep. 556, n.; People v. Rogers, 18 N. Y. 9; reversing 3 Park. 632; Kenny v. People, 31 N. Y. 330; People v. Robinson, 1 Park. 649; 2 id. 235; People v. Hammill, id. 223; People v. Batting, 49 How. 392; People v. Eastwood, 3 Park. 25; 14 N. Y. 562; State v. Harlow, 21 Mo. 446; Shanahan v. Com., 8 Bush, 463; Rafferty v. People, 66 Ill. 118; Charci v. State, 31 Ga. 424; Humphreys v. State, 45 id. 190.

Where intoxication results in a fixed mental disease of some continuance and duration, it will relieve from criminal responsibility. Lonergan v. People, 6 Park. 209; 50 Barb. 266; 34 How. 390; O'Brien v. People, 48 Barb. 274; People v. Williams, 43 Cal. 344; U. S. v. Drew, 5 Mason, 28; State v. McGonigal, 5 Harring. 510. See, also, 28 Eng. Rep. 661.

Permanent insanity produced by habitual drunkenness excuses acts otherwise criminal; but one who while sober deliberately resolves to kill another, and makes himself drunk for the purpose of nerving himself to the accomplishment of his design, and kills such person while he is so drunk as to be incapable of forming such design, and temporarily insane and unconscious of what he is doing, is still guilty of murder in the first degree. State v. Robinson, 20 W. Va. 713; 43 Am. Rep. 799.

Voluntary intoxication is no excuse for crime, but the proof of it may reduce the crime of murder to the second degree, by showing the absence of deliberation. People v. Batting, 49 How. 392; State v. Trivas, 32 La. Ann. 1086; 36 Am. Rep. 293.

In fixing the grade of crime of which the person is guilty, the evidence of his intoxication becomes very important, and is to be carefully weighed. People v. Batting, 49 How. 392.

Evidence of intoxication is always admissible to explain the conduct and intent of the prisoner. People v. Hammill, 2 Park. 223; Lonergan v. People, 6 Park. 209; 50 Barb. 266; People v. Rogers, 18 N. Y. 9; Eastwood v. People, 3 Park. 25; 14 N. Y. 562.

The jury may not infer an absence of premeditation defendant was intoxicated when he committed the crime. 48 Barb. 274.

from the fact that O'Brien v. People,

A refusal to charge on a trial for murder that intoxication absolutely tends to show absence of premeditation and deliberation is not error. People v. Mills, 98 N. Y. 176; 21 W. Dig. 137; 3 N. Y. Cr. Rep. 187.

In People v. Burns, 33 Hun, 296; 2 N. Y. Cr. Rep. 415, it was held that it was not error to instruct the juror in a case of burglary that they might take into consideration the intoxication of defendant, in determining the intent with which he entered the building in question.

Defendant while intoxicated entered the sleeping-room of the complainant where she was in bed, removed the bed clothes from her person and got into the bed, but without touching her person, she leaving the bed at once. Held, sufficient evidence to sustain a verdict of assault although the defendant did

not in fact touch the complainant's person; that it was a question of fact for the jury to determine whether he was so far intoxicated at the time as to be unable to form a guilty intent. Com. v. Hagenlock, 140 Mass. 125; 2 East. Repr. 104.

One wrongfully taking the property of another, but too drunk to entertain a felonious intent, cannot be convicted of larceny. Wood v. State, 34 Ark. 341; 36 Am. Rep. 13.

On a trial for theft the accused offered to prove that at the time of the commission of the offense he was so drunk as to be incapable of forming an intent to steal. The offer was overruled. Held, error. Loza v. State, 1 Tex. Ct. App. 488; 38 Am. Rep. 416.

§ 23. Morbid criminal propensity.—A morbid propensity to commit prohibited acts, existing in the mind of a person who is not shown to have been incapable of knowing the wrongfulness of such acts, forms no defense to a prosecution therefor.

In People v. Carpenter, 102 N. Y. 250, Ruger, Ch. J., said: "The only ex. ception remaining which is deemed of sufficient importance to merit particular notice, is that taken to the refusal of the court to charge according to the request of the prisoner's counsel. If some controlling disease was in truth the acting power within him-the prisoner-which he could not resist, or if he had not a sufficient use of his reason to control the passion which prompted the act complained of, he is not responsible.' The principle of this request is not only impliedly condemned by sections 21 and 23 of the Penal Code, but has been held to be untenable by the express decision of this court. Flanagan v. People, 52 N. Y. 467. Judge Andrews there says: Indulgence in evil passions weakens the restraining power of the will and conscience, and the rule suggested would be the cover for the commission of crime and its justification. The doctrine that a criminal act may be excused upon the notion of an irresistible impulse to commit it when the offender has the ability to discover his legal and moral duty in respect to it, has no place in the law.' The learned trial judge had laid down the rule governing the jury in considering such a defense in the language of the statute, which furnished a simple, clear and intelligible guide for their deliberations, and from a careful and painstaking examination of the evidence in the case, we see no reason to suppose that they have mistaken as to its character and effect, or the legal principles applicable thereto." See, also, People v. Waltz, 50 How. Pr. 204; Huntington's Trial, 334 et seq.

§ 24. Rule as to married woman.-It is not a defense, to a married woman charged with crime, that the alleged criminal act was committed by her in the presence of her husband.

See 31 Am. Rep. 331; 16 Eng. Rep. 232; 13 id. 454; 1 Bish. Cr. Law (7th ed.), § 359.

Coverture is no protection to a wife who participates with her husband in the commission of a crime, where she takes an active and willing part in the

criminal act, and proof will overcome the prima facie evidence of coercion which the husband's presence would imply. People v. Ryland, 97 N. Y. 126; 28 Hun, 568.

Joint conviction of husband and wife will be sustained if no coercion be shown. Goldstein v. People, 82 N. Y. 231.

A wife will not be held responsible for a larceny committed by her, by coercion of her husband or in his company, which presumes coercion; but the coercion of his company is only presumptive, and if it appear that she was not urged to the offense by him, but was herself the inciter of it, she is equally responsible. Seiler v. People, 77 N. Y. 411.

Where there is a preconcert between husband and wife to commit a rob. bery, and she is present voluntarily aiding and abetting in the crime, she is responsible. Goodman's Case, 6 C. H. Rec. 21.

It has been held that a woman in the presence of her husband cannot be guilty of an assault and battery on one with whom her husband has a controversy. Brown's Case, 3 C. H. Rec. 56; Rooney's Case, id. 126.

It is otherwise, however, if the husband does not participate. Boyd's Case, 3 C. H. Rec. 134. See Quinlan v. People, 6 Park. 9; People v. Townsend, 3 Hill, 479; Brandon's Case, 4 C. H. Rec. 140

§ 25. Rule as to persons acting under threats, etc.Where a crime is committed or participated in by two or more persons, and is committed, aided, or participated in by any one of them, only because, during the time of its commission, he is compelled to do, or to aid or participate in the act, by threats of another person engaged in the act or omission, and reasonable apprehension on his part of instant death or grievous bodily harm, in case he refuses, the threats and apprehension constitute duress, and excuse him.

§ 26. Rule when act done in defense of self or another. -An act, otherwise criminal, is justifiable when it is done to protect the person committing it, or another whom he is bound to protect, from inevitable and irreparable personal injury, and the injury could only be prevented by the act, nothing more being done than is necessary to prevent the injury.

See Code Crim. Proc., §§ 79, 80, 81; see, also, §§ 203, 204, 205 and 223, post. One without fault, if attacked by another, may kill his assailant, if the circumstances be such as furnish reasonable ground of a design to take his life or do him great bodily harm, though in point of fact he is mistaken. Shorter v. People, 2 N. Y. 193; 4 Barb. 460; Patterson v. People, 46 Barb. 625.

See People v. Lamb, 54 id. 342; 2 Keyes, 360; 2 Abb. (N. S.) 148; People v. Austin, 1 Park. 154; People v. Cole, 4 id. 35; Pfommer v. People, id. 558; Uhl v. People, 5 id. 410; 4 Am. and Eng. Encyc. of Law, 691; 6 N. Y. Cr. Rep. 116, note; People v. Lennon, 71 Mich. 298; 15 Am. St. 259; People v. Pearl, 76 Mich. 207; 15 Am. St. 259.

In State v. Broussard, 39 La. Ann. 671, it was held that proof of the disparity between the size and strength of the prosecutor and the accused is inadmissible, unless there has been a prima facie case of self-defense laid by the defendant, or it has been preceded by proof that the accused was the attacking party. The court said: "The decisions are clear that a party, in order to introduce evidence as to the character or disparity in size and strength, must lay a proper foundation, and show that at the time the accused inflicted the wound as charged, he was attacked by the wounded party. On this question, Wharton says: 'In England we have no authority direct to this particular point. Intimations, however, from eminent judges, would lead us to believe that evidence would not be refused when there is a prima facie case of self-defense laid by the defendant.' Whart. Hom. 503, § 607. The same learned author says: "The general principle, then, is this: Not that it is lawful coolly to attack and kill a person of ferocious and bloodthirsty character, for it is as much murder in such manner to kill the most desperate of men as to kill the most inoffensive, but that, whenever it is shown that a person honestly believed himself attacked, it is admissible for him to put in evidence whatever could show the bona fides of his belief.' Whart. Crim. Ev., § 69. These principles have been crystallized into our jurisprudence. State v. Burns, 30 La. Ann. 679; State v. Vance, 32 id. 1177; State v. Jackson, 33 id. 1087; State v. Claude, 35 id. 71; State v. Watson, 36 id. 148; State v. Janvier, 37 id. 644; State v. Spell, 38 id. 20."

The burden is on the prisoner to show that sufficient cause existed to justify him in using a deadly weapon. Sawyer v. People, 16 Week. Dig. 394.

One may not resist an officer who levies upon his property under an execution upon a justice's judgment against a third party when the officer acts in good faith. Hall v. People, 2 N. Y. Cr. Rep. 134; 18 Week. Dig. 357.

Where one believes himself about to be attacked, he must, if possible, avoid his assailant. People v. Sullivan, 7 N. Y. 396; People v. Cole, 4 Park. 35; People v. McGrath, 47 Hun, 325.

If a fatal blow be struck in self-defense, the homicide is not justified, unless the accused first retreated as far as he could. People v. Harper, Edm. Sel. Cas. 180; Shorter v. People, 2 N. Y. 193; 4 Barb. 460.

One who is opposing a felony may lawfully use all necessary force, even to the killing of the felon. Ruloff v. People, 45 N. Y. 213; 5 Lans. 261; 11 Abb. (N. S.) 245; People v. Hand, 4 Alb. L. J. 91.

A party assailed may seek the protection of the authorities, but his failure so to do does not deprive him of the right to defend himself in the same manner and to the same extent and by the same means as if he had done so. Evers v. People, 3 Hun, 716; 63 N. Y. 625.

To what extent and in what way force may be used in defense of personal property. Gyre v. Culver, 47 Barb. 592; Morgan v. Durfee, 21 Alb. L. J. 215. To what extent and in what way force may be used in defending one's freehold. Corey v. People, 45 Barb. 262; Wood v. Phillips, 45 N. Y. 152; People v. Gulick, Lalor, 129; Harrington v. People, 6 Barb. 607.

If one is attacked with a dangerous weapon it is incumbent upon him to avoid the assault by retreat if retreat is open to him, but if this prove unavailing, the law will hold him harmless if in defending himself he kills his assailant. People v. Minisci, 12 State Rep'r, 720.

§ 27. Exemption of public ministers.- Ambassadors and other public ministers from foreign governments, accredited to the president or government of the United States, and recognized according to the laws of the United States, with their secretaries, messengers, families and servants, are not liable to punishment in this state, but are to be returned to their own country for trial and punishment.

See Federal Const., art. III, § 2; 1 Bish. Cr. Law, § 585; Wheaton's International Law, 264, § 6; Id. 271, § 14.

TITLE II.

OF PARTIES TO CRIMES.

SECTION 28. Principal and accessory.
29. Definition of principal.

30. Definition of accessory.

31. All principals in misdemeanors.
32. Trial of accessories.

33. Punishment of accessories.

§ 28. Principal and accessory.-A party to a crime is,

either

1. A principal; or,

2. An accessory.

§ 29. Definition of principal. A person concerned in the commission of a crime, whether he directly commits the act constituting the offense or aids and abets in its commission, and whether present or absent, and a person who directly or indirectly counsels, commands, induces or procures another to commit a crime, is a principal.

In People v. Bliven, 112 N. Y. 82, Peckham, J., says: The purpose and effect of the section are to abolish the distinction which heretofore existed in cases of felony, between a principal and an accessory before the fact; the principal being present and either committing the act himself or aiding in its commission, and the accessory before the fact being absent, but counseling and procuring its commission, * to place a person who in cases of felony would other

*

*

wise have been guilty as an accessory before the fact under the same as had heretofore obtained in cases of treason and misdemeanor."