dinate and irresistible appetite for drink, overcoming the will and amounting to a disease.29 Nor, it seems, is there any exemption from responsibility merely because a man, by reason of previous injury to his head or brain, or other constitutional infirmity, is more liable to be maddened by liquor than another man.295

105. Settled Insanity or Delirium Tremens.

The general rule that voluntary drunkenness is no defense does not apply in the case of settled insanity, or delirium tremens, resulting from previous habits of intemperance, for such a condition is the remote, and not the immediate, cause of the voluntary drinking, and the law does not ordinarily regard remote causes. Such insanity will exempt one from responsibility under the same circumstances, but only under the same circumstances, that insanity from any other cause would exempt him.297

296

294 Flanigan v. People, 86 N. Y. 554, 40 Am. Rep. 556; Choice v. State, 31 Ga. 424, 472, Beale's Cas. 269.

295 Choice v. State, supra.

It is said by Wharton that drunkenness is not to be regarded as voluntary when it is the result of moderate and customary indulgence, and is caused by some temporary disease or debility, or unsuspected susceptibility. 1 Whart. Crim. Law (10th Ed.) § 55, citing Roberts v. People, 19 Mich. 401, and Roger's v. State, 33 Ind. 543. See McCook v. State, 91 Ga. 740, 17 S. E. 1019.

296 Per Mr. Justice Story, in U. S. v. Drew, 5 Mason, 28, Fed. Cas. No. 14,993.

The insane condition must be the remote and not the immediate effect of intoxication. That defendant had from the length of his debauch become "crazy drunk" is no defense. State v. Haab, 105 La. 230, 29 So. 725, Mikell's Cas. 320.

2071 Hale, P. C. 32; Reg. v. Davis, 14 Cox, C. C. 563, Beale's Cas. 262; U. S. v. Drew, 5 Mason, 28, Fed. Cas. No. 14,993; People v. Rogers, 18 N. Y. 9, 72 Am. Dec. 484, Beale's Cas. 264; and see U. S. v. McGlue, 1 Curt. 1, Fed. Cas. No. 15,679; Beasley v. State, 50 Ala. 149, 2 Am. Rep. 292; Upstone v. People, 109 Ill. 169; Wagner v. State, 116 Ind. 181, 18 N. E. 833; Erwin v. State, 10 Tex. App. 700; Carter v. State, 12 Tex. 500, 62 Am. Dec. 539; Evers v. State, 31 Tex. Cr. R.

106. Drunkenness may Negative Commission of the Act.

The fact that the accused was drunk at or about the time the deed with which he is charged was committed may always be proven if it tends to show that he could not have committed the deed, the evidence being admitted in such case, not to exempt him from responsibility for an act done by him, but to show that some other person, and not he, must have committed it.298 107. Drunkenness may Negative Specific Intent or Knowledge.

(a) Specific Intent.-Proof of drunkenness, though voluntary, is also admissible, and may constitute a defense, when the accused is charged with an offense of which some specific intent is an essential element. As the offense cannot be committed without such an intent, if the fact of drunkenness negatives its existence, as where it appears that the accused was so drunk that he could not have entertained such an intent, it necessarily constitutes a complete defense.299

There is some conflict in the decisions, but by the weight of authority this principle admits proof of drunkenness in prose

318, 20 S. W. 744, 37 Am. St. Rep. 811; People v. Robinson, 2 Park. Cr. R. (N. Y.) 235; Boswell v. Com., 20 Grat. (Va.) 860; State v. Robinson, 20 W. Va. 713, 43 Am. Rep. 799; Terrill v. State, 74 Wis. 278, 42 N. W. 243; French v. State, 93 Wis. 325, 67 N. W. 706; State v. Hand, 2 Hard. (Del.) 149, 1 Marv. 545, 41 Atl. 192; State v. Harrigan, 9 Houst. (Del.) 369, 31 Atl. 1052.

298 Thus, drunkenness may be shown when it tends to prove an alibi, as where it is shown that the accused, shortly before the time the act was done, was at another place, and in such a state of drunkenness that he could not have been at the place where the act was done. Ingalls v. State, 48 Wis. 647, 4 N. W. 785.

299 Steph. Dig. Crim. Law, art. 29; Reg. v. Doody, 6 Cox, C. C. 463, Beale's Cas. 261; People v. Walker, 38 Mich. 156, Beale's Cas. 271; Roberts v. People, 19 Mich. 401, 416; Loza v. State, 1 Tex. App. 488, 28 Am. Rep. 416; Cline v. State, 43 Ohio St. 332, 1 N. E. 22; State v. Garvey, 11 Minn. 154; People v. Ferris, 55 Cal. 588; Garner v. State, 28 Fla. 113, 9 So. 835, 29 Am. St. Rep. 232; Chrisman v. State, 54 Ark. 283, 15 S. W. 889, 26 Am. St. Rep. 44; People v. Robinson, 2 Park. Cr. R. (N. Y.) 235; Hill v. State, 42 Neb. 503, 60 N. W. 916; Head v. State, 43 Neb. 30, 61 N. W. 494.

C. & M. Crimes-11.

cutions for assault with intent to kill, to wound, to rape, or to rob, in which it is necessary to prove the specific intent to kill, to wound, to rape, or to rob;300 and in prosecutions for burglary, wherein a specific intent to commit a felony must be shown;301 for larceny or robbery, wherein an intent to steal,— the animus furandi,-must be shown ;302 for an attempt to commit a crime, wherein it must be shown that there was the specific intent to commit the particular crime charged to have been attempted;303 for conspiracy;303a for perjury;304 for bribery;305 or for forgery.306

(b) Knowledge.—On the same principle, proof of voluntary drunkenness may be shown to negative the existence of a knowledge of particular facts, when such knowledge is an

300 Roberts v. People, 19 Mich. 401, 416; Crosby v. People, 137 Ill. 325, 27 N. E. 49; Cline v. State, 43 Ohio St. 332, 1 N. E. 22; State v. Garvey, 11 Minn. 154; Reagan v. State, 28 Tex. App. 227, 12 S. W. 601, 19 Am. St. Rep. 833; Whitten v. State, 115 Ala. 72, 22 So. 483, Mikell's Cas. 326; Chrisman v. State, 54 Ark. 283, 15 S. W. 889, 26 Am. St. Rep. 44; Booher v. State, 156 Ind. 435, 60 N. E. 156; Head v. State, 43 Neb. 30, 61 N. W. 494; State v. Grear, 28 Minn. 426, 10 N. W. 472.

301 State v. Bell, 29 Iowa, 316; Schwabacher v. People, 165 Ill. 618, 46 N. E. 809. Contra, State v. Shores, 31 W. Va. 491, 7 S. E. 413, 13 Am. St. Rep. 875, 886.

302 People v. Walker, 38 Mich. 156, Beale's Cas. 271; Chatham v. State, 92 Ala. 47, 9 So. 607; Wood v. State, 34 Ark. 341, 36 Am. Rep. 13; State v. Schingen, 20 Wis. 74, 78; Loza v. State, 1 Tex. App. 488, 28 Am. Rep. 416; Bartholomew v. People, 104 Ill. 601; Keeton v. Com., 92 Ky. 522, 18 S. W. 359; State v. Koerner, 8 N. D. 292, 78 N. W. 981. Contra, Dawson v. State, 16 Ind. 428, 79 Am. Dec. 439.

303 Reg. v. Doody, 6 Cox, C. C. 463, Beale's Cas. 261 (where the charge was attempt to commit suicide); Reagan v. State, 28 Tex. App. 227, 12 S. W. 601, 19 Am. St. Rep. 833 (where the charge was attempt to rape).

303a Booher v. State, 156 Ind. 435, 60 N. E. 156.

304 Lytle v. State, 31 Ohio St. 196; Lyle v. State, 31 Tex. Cr. R. 103, 19 S. W. 903. Compare People v. Willey, 2 Park. Cr. R. (N. Y.) 19 and Schaller v. State, 14 Mo. 502.

305 White v. State, 103 Ala. 72, 16 So. 63.

306 People v. Blake, 65 Cal. 275, 4 Pac. 1.

essential element of the offense charged, as in prosecutions for passing counterfeit money or uttering a forged instrument, in which it is necessary to allege and prove that the accused knew that the money was counterfeit or the instrument forged.307 The same would seem to be true of a prosecution for illegally voting at an election.308

(c) Degree of Drunkenness.—Voluntary drunkenness is no defense, even when a specific intent or a guilty knowledge is an essential element of the crime charged, unless the accused was so drunk as to be mentally incapable of entertaining the requisite intent, or of possessing the requisite knowledge. It is only material when it negatives the existence of such intent or knowledge.309

108. Homicide Cases.

(a) Murder at Common Law.-The application of the principles stated above to homicide cases is of so much importance as to require special mention. As will be shown in a subsequent chapter, to constitute murder at common law it is not necessary that there shall be a specific intent to kill, but it is sufficient to show malice generally, or implied malice, as by showing the

307 Pigman v. State, 14 Ohio, 555, 45 Am. Dec. 558; U. S. v. Roudenbush, Baldw. 514, Fed. Cas. No. 16,198.

308 People v. Harris, 29 Cal. 678. But see State v. Welch, 21 Minn. 22, where it was held that drunkenness could not be shown on a prosecution for illegally voting twice at an election. See, to the same effect, McCook v. State, 91 Ga. 740, 17 S. E. 1019.

309 U. S. v. Roudenbush, Baldw. 514, Fed. Cas. No. 16,198. In this case it was said by Judge Baldwin: "If the mind still acts,-if its reasoning and discriminating faculty remains, a state of partial intoxication affords no ground of a favorable presumption in favor of an honest or innocent intention, in cases where a dishonest and criminal intention would be fairly inferred from the commission of the same act when sober. The simple question is, did he know what he was about?" See, also, Reagan v. State, 28 Tex. App. 227, 12 S. W. 601, 19 Am. St. Rep. 833; Warner v. State, 56 N. J. Law, 686, 29 Atl. 505, 44 Am. St. Rep. 415.

deliberate use of a deadly weapon without justification or excuse.310 It is well settled, therefore, that, on a prosecution for murder at common law, voluntary drunkenness, however excessive, is no defense. It neither excuses nor mitigates the offense.311

(b) Statutory Degrees of Murder (1) First Degree.—In many states, however, murder is by statute divided into degrees, and an actual intent to kill, or some deliberation and premeditation, is made necessary to constitute murder in the first degree, but not to constitute murder in the second degree.312 In these jurisdictions, by the decided weight of authority, drunkenness may be shown to negative the existence of such a state of mind, and so to show that a homicide was not murder in the first degree.313

310 Post, § 244.

311 U. S. v. McGlue, 1 Curt. 1, Fed. Cas. No. 15,679; People v. Rogers, 18 N. Y. 9, 72 Am. Dec. 484, Beale's Cas. 264; Flanigan v. People, 86 N. Y. 554, 40 Am. Rep. 556; Choice v. State, 31 Ga. 424, 472, Beale's Cas. 269; State v. John, 8 Ired. (N. C.) 330, 49 Am. Dec. 396; People v. Garbutt, 17 Mich. 9, 97 Am. Dec. 162; State v. Kraemer, 49 La. Ann. 766, 22 So. 254; Willis v. Com., 32 Grat. (Va.) 929; State v. Robinson, 20 W. Va. 713, 43 Am. Rep. 799; Shannahan v. Com., 8 Bush (Ky.) 463, 8 Am. Rep. 465; Beasley v. State, 50 Ala. 149, 20 Am. Rep. 292; State v. Bundy, 24 S. C. 439, 58 Am. Rep. 262; State v. Tatro, 50 Vt. 483; Carter v. State, 12 Tex. 500, 62 Am. Dec. 539; Upstone v. People, 109 Ill. 169.

The case of Golliher v. Com., 2 Duv. (Ky.) 163, 87 Am. Dec. 493, seems to be opposed to this well-settled doctrine.

312 Post, 251 et seq.

313 In some states, this doctrine is not recognized. People v. Rogers, 18 N. Y. 9, 72 Am. Dec. 484, Beale's Cas. 264; Flanigan v. People, 86 N. Y. 554, 40 Am. Rep. 556; State v. Tatro, 50 Vt. 483.

The doctrine, however, is a sound one, and has been recognized by the supreme court of the United States, and by most of the state courts. Hopt v. People, 104 U. S. 631; Tucker v. U. S., 151 U. S. 164; Boswell v. Com., 20 Grat. (Va.) 860; Willis v. Com., 32 Grat. (Va.) 929; Garner v. State, 28 Fla. 113, 9 So. 835, 29 Am. St. Rep. 232; Com. v. Dorsey, 103 Mass. 412; Shannahan v. Com., 8 Bush (Ky.) 463, 8 Am. Rep. 465; Pirtle v. State, 9 Humph. (Tenn.) 663; Lancaster v. State, 2 Lea (Tenn.) 575; Jones v. Com., 75 Pa. 403; Keenan v. Com., 44