sible, must be so connected with a disordered or weakened mental condition preceding the time of the offense as to lead to the inference of its continuance; or else they must indicate unsoundness to such a degree, or of so permanent a nature, as to have required a longer period than the interval for its production or development.' (m) Insanity at time of trial. —A man while insane can neither be tried, sentenced nor executed. The reason is, because his insanity disables him from making a rational defense. But a prisoner, though not entirely sane, may be put upon his trial, if he rightly comprehends his own condition with reference to the proceedings then pending against him, and can rationally conduct his defense." 3 § 233. Intoxication.-(a) General rule — no excuse. The general rule is that intoxication, especially if voluntary, is no excuse for crime. Nor does it exempt the accused from all the inferences and presumptions which would be applied to like conduct of one who was sober. Intoxication is no defense if the offender be capable of forming an intelligent design, and in such case, if the charge be otherwise sufficiently proved, he will be presumed to intend the natural consequence of his act, unless his intoxication be such as to render him unconscious of what he was doing at the time. In People v. Garbutt,' however, the defense was excluded, notwithstanding the intoxication was to such an extent as to make the person unconscious of what he was doing at the time of the commission of the offense. Thus, it is no excuse for crime committed in a state 1 Com. v. Pomeroy, 117 Mass. 143. 6 2 Freeman v. People, 4 Den. 9; 47 Am. Dec. 216. Estes v. State, 55 Ga. 31; Hanvey v. State, 68 Ga. 612; Dawson v. State, 16 Ind. 428; 79 Am. Dec. 439; Sanders v. State, 94 Ind 147; Lanergan v. People, 50 Barb. 266; Friery v. People, 54 Id. 319; 2 N. Y. App. Dec. 215; State v. Harlow, 21 Mo. 446; Shanahan v. Com. 8 Bush, 463; Com. v. Hawkins, 3 Gray, 463; People v. Cavanagh, 62 How. Pr. 187; State v. John, 8 Ired L. 330; 49 Am. Dec. 396; State v. Bundy, 24 S. C. 439; 58 Am. Rep. 262; State v. Keath, 83 N. C. 626; State v. Paulk, 18 S. C. 514; Carter v. State, 20 Tex. 500. 4 People v. Rogers, 18 N. Y. 9; 72 Am. Dec. 484. 5 Smurr v. State, 88 Ind. 504; Kenny v. People, 31 N. Y. 330. State v. Till, 1 Del. Cr. 233. 17 Mich. 9; 97 Am. Dec. 162. of intoxication that a person by constitutional infirmity, or accidental injury to the head, is more likely to be maddened by liquor than another person.' Some cases hold that in the instances in which it is resorted to to blunt moral responsibility it heightens the culpability of the offender.' (b) Inability to form intent.-At common law, where it requires a particular intent in the doing of an act to constitute crime-as, for instance, larceny, where the intent to steal must accompany the taking, it may be shown, in defense, that the party charged was intoxicated to that degree that he was incapable of entertaining the intent to steal, and that he neither then nor afterwards yielded it the sanction of his will.' Although drunkenness neither aggravates nor excuses an act done by a party while under its influence, yet it is a fact which may affect both physical ability and mental condition, and may be essential in determining the nature and character of the acts of the accused as well as the purpose and intent with which they are done. But in Michigan, it was held proper for the court to refuse to charge the jury that if they believed that the defendant was intoxicated to such an extent as to make him unconscious of what he was doing at the time of the commission of the offense, the defendant must be acquitted." And in Iowa, evidence that on occasions prior to that of the 1 Choice v. 4 State, 31 Ga. 424, approved, Humphreys v. State, 45 Id. 190. ? United States v. Claypool, 14 Fed. Rep. 127. But see State v. Donovan, 61 Iowa 369. 3 Bartholomew v. People, 104 Ill. 601; Wood v. State, 34 Ark. 341; 36 Am. Rep. 13; Loza v. State, 1 Tex. App. 488; Bailey v. State, 26 Ind. 422; State v. Donovan, 61 Iowa 369; People v. Walker, 38 Mich. 156 It appeared that defendant, who was twenty-four years old, had for several years used intoxicating liquors to excess; that he would go off several times a month, and stay on a spree for several days; that he had several times had delirium tremens, the last time being a few months before the larceny. But the evidence did not show that he was insane, or that his mind was affected so that he could not tell right from wrong. He was drunk a few days before the larceny, but three witnesses, to whom he sold the stolen article on the day of the larceny, testified that he was then sober. Held, that an instruction to find defendant not guilty if, by reason of his intemperance, he did not have mind enough at the time of the larceny to know right from wrong, was properly refused -State v. Riley, 100 Mo. 493. 4 Ferrell v. State, 43 Tex. 503. 'People v. Garbutt, 17 Mich. 9. S. P., Boswell v. Com., 20 Gratt. 860. commission of the larceny charged the prisoner was bereft of his reason when intoxicated, was held to be inadmissible to disprove the animus furandi.' (c) Insanity from use of liquor.-While no degree of intoxication will excuse a criminal act, it is otherwise in respect to mental unsoundness produced by drunkenness and remaining after the intoxication has ceased.' Insanity occasioned by previous habits of intemperance, and not directly the result of the immediate influence of intoxicating liquors, is entitled to the same consideration as an excuse for crime, or otherwise, as is insanity from any other cause." But temporary insanity produced immediately by intoxication does not destroy responsibility where the accused, when sane and responsible, made himself voluntarily drunk.‘ (d) Delirium tremens.—The rule that intoxication creates no exemption from criminal responsibility, does not apply to delirium tremens, which, although the result of prior vicious indulgence, is always shunned, and not voluntarily assumed.* Therefore where delirium tremens deprives a person of the capacity of knowing what he is doing, or of distinguishing right from wrong, it will save him from criminal responsibility for his acts. That delirium tremens is a species of insanity, and such as may render a party afflicted therewith incapable of the commission of crime, is no longer an open question.' 6 § 234. Kleptomania.-Kleptomania, if proved, constitutes a defense to a charge of theft. And when there is evidence tending to sustain that defense, the charge to the jury should distinctly present and specifically treat of the peculiar issue 1 State v. Hart, 29 Iowa 268. 2 Beasley v. State, 50 Ala. 149; 20 Am. Rep. 292; Cromwell v. State, 1 Mart & Y 147; United States v. Drew, 5 Mason, 28; State v. McGonigal, 5 Harring, 510. 3 People v. Rogers, 18 N. Y. 9; 72 Am. Dec. 484; State v. Robinson, 20 W. Va. 713. 4 Schlencker v. State, 9 Neb. 241; State v. Thompson, 12 Nev. 140. 5 Maconneky v. State, 5 Ohio St. 77. O'Brien v. People, 48 Barb. 274; People v. O'Connell, 62 How. Pr. 436; Carter v. State, 20 Tex. 500; 62 Am. Dec. 539. Erwin v. State, 10 Tex. App. 700. * Harris v. State, 18 Tex. App. 287. thus raised, and not stop with submitting the usual test of the defendant's ability in general to distinguish right from wrong.' But the court will not disturb a verdict respecting this defense as contrary to the weight of evidence, unless the defense is overwhelmingly sustained by the quantity and quality of the evidence.' § 235. Marital coercion.-As a general rule, a married woman cannot be convicted of larceny committed by her jointly with her husband.' Where the husband "directs" his wife to perform the act, his directions are equivalent to his commands. The wife will be presumed to have acted under the coercion of her husband in committing an offense, when he was at the time near enough for her to be under his immediate influence and control, though not in the same room. But she is not shielded from responsibility for crime committed by her husband's order, unless she is within his presence and control; and to entitle her to the benefit of such presumption her coverture must be clearly proved.' If she formed the intent to commit the crime, and actually commenced it in his absence and without his knowledge, the fact that he afterward arrived and aided in completing it, would not create the presumption that she acted under his compulsion. The question of compulsion is to be determined by the jury. If it appears that she was not urged or drawn to the offense by him, but was an inciter of it, she is liable as well as he. It is the presence of the husband which raises the presumption, and if the wife commits the offense, by the bare command or procurement of the husband, when he is not present, she is liable.' So also the mere proximity of a husband not actually present when his wife commits a minor offense will not raise in her 1 Looney v. State, 10 Tex. App. 520; 38 Am. Rep. 646. "Com. v. Fritch, 9 Pa. Co. Ct. Rep. 164. 3 Com. v. Trimmer, 1 Mass. 476. 4 Mulvey v. State, 43 Ala. 316; 94 Am. Dec. 634. 5 Com. v. Munsey, 112 Mass. 287. • Com. v. Feeney, 13 Allen 560. 'Davis v. State, 15 Ohio 72; 45 Am. Dec. 559. * Quinlan v. People, 6 Parker 9. 'Seiler v. People, 77 N. Y. 411. favor the presumption that she acts under his coercion. Any inference of coercion from such proximity is a question of fact.' A husband and wife may be jointly indicted and convicted of a crime, where it appears that they were both guilty of the offense charged, and it is shown that there was no coercion, as in such case the wife acts in her own capacity, as one able to commit crime, and of her own accord and intent, the same as if she were an unmarried woman.' § 236. Title; ownership; claim of right.'-Proof that the prisoner took the property upon claim of title, honestly entertained, is a defense. And he has a right to have such evidence, though weak and suspicious, submitted to the jury.* Thus, evidence tending to show that defendant acquired the chattels which he was charged with stealing by purchase instead of by theft should be received. In such a case, evidence against him of a fraudulent taking may be rebutted by proof of his good faith in appropriating it as his own; and, if the entire evidence leaves a reasonable doubt of the fraudulent intent, he should be acquitted; and the jury should be instructed as to what facts would rebut the presumption of a fraudulent taking.' In a trial for theft of his own property, in the hands of a bailee, the defendant should be allowed to prove any and every fact which may legitimately tend to show his animus in the taking, and serve to disprove a fraudulent intent therein-as, for instance, the discharge of a debt for which he had pledged the property as security. But it is not a defense to a charge of larceny that defendant had an "impression" that he had a claim to the property taken; this is not an equivalent for an honest belief." And while the defendant's guilty knowledge of the seller's want of title 1 State v. Shee, 13 R. I. 535. 2 Goldstein v. People, 82 N. Y. 231. 4 Morningstar v. State, 55 Ala. 148. |