and cunning, he was found guilty, condemned, and hanged accordingly (n). Thus also, in more modern times, a boy of ten years old was convicted on his own confession of murdering his bedfellow, there appearing in his whole behaviour plain tokens of a mischievous discretion; and, as the sparing this boy merely on account of his tender years might be of dangerous consequence to the public, by propagating a notion that children might commit such atrocious crimes with impunity, it was unanimously agreed by all the judges that he was a proper subject of capital punishment, but a pardon was granted by the crown (o). In any such case, the evidence of that malice which is to supply age, ought to be strong and clear beyond all doubt and contradiction. (610)

II. Idiocy or lunacy.

II. The second case of a deficiency in will, which excuses from the guilt of crime, arises from a defective or vitiated understanding, caused by idiocy or lunacy. For the rule of law as to the latter, which may easily be adapted to the former, is, that "furiosus furore solum punitur." In criminal cases therefore idiots and lunatics are not chargeable for their own acts, if committed when under these incapacities (p): no, not even for treason itself (q). (611) But the law concerning persons who are non compotes mentis has sometimes to be applied under * circumstances of much difficulty and nicety; for instance, where there is mental obliquity in

[*20]

(n) Emlyn on 1 Hale, P. C. 25.

(p) Per Tracy, J., R. v. Arnold, 16 St. Tr. (g) 3 Inst. 6.

(0) York's Case, Foster, 70, 72; R. v. Wild, 764. 1 Mood. C. C. 452.

(610) The capacity to commit crime in such cases must be proved by distinct and substantive evidence. Com. v. Mead, 10 Allen (Mass.), 398.

(611) The degree of mental unsoundness that will exempt a person from the punishment of the law, for acts done by him, is a subject that has undergone a great deal of discussion in recent times, both in this country and in England; but for a full statement of the conclusions arrived at, works on medical jurisprudence, insanity, and criminal law, must be consulted.

It would seem to be well settled, that where an individual lacks the capacity to distinguish right from wrong in reference to the particular act complained of, the law will not hold him responsible. McAllister v. State, 17 Ala. 434; State v. Huting, 21 Mo. 464; Freeman v. People, 4 Denio, 20; Willis v. People, 32 N. Y. (5 Tiff.) 715; People v. Sprague, 2 Park. 43; Com. v. Heath, 11 Gray (Mass.), 303; Anderson v. State, 42 Ga. 11; State v. Lawrence, 57 Me. 574; People v. Coffman, 24 Cal. 230; Com. v. Mosler, 4 Barr (Penn.), 267 ; Flanagan v. The People, 52 N. Y. (7 Sick.) 467; People v. Montgomery, 13 Abb. N. S. 207.

The question to be considered by the jury is, whether, at the time the prisoner committed the act, he was conscious of doing wrong. See Loeffner v. The State, 10 Ohio, 598; Fisher v. People, 23 Ill. 283; Bovard v. The State, 30 Miss. 600; State v. Windsor, 5 Harr. (Del.) 512; The State v. Spencer, 1 Zabr. (N. J.) 196; Flanagan v. The People, 52 N. Y. (7 Sick.) 467; People v. Schryver, 42 N. Y. (2 Hand) 1. And see the cases cited above.

It is held to be a safe and reasonable test, applicable in all cases, that, whenever it should appear from the evidence that at the time of doing the act the prisoner was not of sound mind, but affected with insanity, and such affection was the efficient cause of the act; and that he would not have done the act but for that affection, he ought to be acquitted. But this unsoundness of mind, or affection of insanity, must be of such a degree as to create an uncontrollable impulse to do the act charged, by overriding the reason and judgment, and obliterating the sense of right and wrong as to the particular act done, and depriving the accused of the power of choosing between them. BREESE, J., Hopps v. People, 31 Ill. 385, 391.

reference only to particular subjects, or where the mental capacity, though weak and clouded, is still such as might presumably have availed to restrain from committing crime. As regards the condition of mind first supposed, the opinion of the judges (r) in M Naghten's Case (8), sanctioned by the House of Lords, must guide us; there certain questions, bearing directly on this subject, were formally proposed to the judges, which, with the answers to them, are below set out:

1st. "What is the law respecting alleged crimes committed by persons afflicted with insane delusions 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 supposed public benefit?"

To which question the answer was as follows-Assuming that the inquiries are confined to persons who labour under such partial delusions only, and are not in other respects insane, 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 the law of the land.

2nd. "What are the proper questions to be submitted to the jury when 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, and insanity is set up as a defence?" and 3rd. "In what terms ought the question to be left to the jury as to the prisoner's state of mind when the act was committed?"

[*21]

To these two questions the answer judicially returned was-"The jury 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,

(r) Maule, J., diss. (8) 10 Cl. & F. 200.

(t) Vide per Rolfe, B., 3 Car. & K. 188.

Mere "moral insanity," or that which impels to all sorts of badness while the mind remains unimpaired, does not exonerate from responsibility. See Furrer v. State, 2 Ohio St. 54, 76; Com. v. Heath, 11 Gray (Mass.), 303; Freeman v. People, 4 Denio, 10; State v. Lawrence, 57 Me. 574; Choice v. State, 31 Ga. 424; U. S. v. Schultz, 6 McLean's C. C. 121. But see St. Louis Mut. Ins. Co. v. Graves, 6 Bush (Ky.), 644; Smith v. Com., 1 Duvall (Ky.), 224. Nor does the want of speech and hearing relieve from responsibility for crime. Com. v. Hill, 14 Mass. 207.

Sanity is presumed to be the normal state of the human mind, and it is never incumbent upon the prosecutor to give affirmative evidence that such state exists in a particular case. Walter v. People, 32 N. Y. (5 Tiff.) 147, 164. But, if evidence of insanity is introduced in behalf of a prisoner, and there is reasonable doubt of his sanity, he is as much entitled to the benefit of the doubt as if it arose upon any other branch of the case. Chase v. People, 40 Ill. 352; Polk v. The State, 19 Ind. 170; People v. McCann, 16 N. Y. (2 Smith) 58; Com. v. Kimball, 24 Pick. (Mass.) 373; People v. Garbutt, 17 Mich. 23; Hopps v. People, 31 Ill. 385, 393. The presumption of innocence is as strong as the presumption of sanity. Id. See this subject farther discussed in Com. v. Eddy, 7 Gray (Mass.), 583; State v. Bartlett, 43 N. H. 224; Loeffner v. The State, 10 Ohio St. 598; People v. Myers, 20 Cal. 518; State v. Klinger, 43 Mo. 127; State v. Starling, 6 Jones (N. C.), 366.

until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved, that, at the time of committing the act, the party accused was labouring 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.' "" 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; this course is correct, accompanied with such observations and explanations as the circumstances of each particular case may require (u).

4th. "If a person under an insane delusion as to existing facts commits an offence in consequence thereof, is he thereby excused?"

To which question the answer was-That if the accused labours under a partial delusion only, and is not in other respects insane, 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-defence, he would be exempt from punishment. If his delusion was that the deceased [*22] 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.

*

In regard to the condition of mind at page 20, secondly supposed, we may observe that, although a total temporary absence of reason at the time when an offence was committed will excuse, yet if there be only a partial degree of imbecility, allowing a competent use of the reasoning faculty sufficient to have restrained those passions which produced the act charged as criminal, if there be thought and design, a power to distinguish the nature of actions, to discern the difference between good and evil, then the fact of the offence being proved, the judgment of the law must ensue and take effect (x).

According to our common law, if a man in his sound memory commits a capital offence, and before arraignment for it, he becomes mad, he ought not to be arraigned for it; because he is not able to plead to it with that advice and caution that he ought. And if, after he has pleaded, the prisoner becomes mad, he shall not be tried: for how can he make his defence? If after he be tried and found guilty, he loses his senses before judgment, judgment shall not be pronounced: and if, after judgment, he becomes of nonsane memory, execution shall be stayed: for peradventure, says the humanity of the English law, had the prisoner been of sound memory, he might have alleged something in stay of judgment or execution (y). Indeed, in the bloody reign of Henry VIII., a statute was made (2), which enacted, that if a person, being compos mentis, should commit high treason, and after fall into madness, he might be tried in his absence, and should suffer death, as if he were of perfect memory. This savage and inhuman law was however repealed by the statute 1 & 2 Ph.

(u) See Reg. v. Oxford, 1 Townsend's St. Tr. 110.

(x) Per Hon. Chas. Yorke, S. G. arg. Lord

Ferrer's Case, 19 St. Tr. 946-7. Per Erskine,
arg. Hadfield's Case, 27 St. Tr. 1309, et seq.
(y) 1 Hale, P. C. 34.
(z) 33 Hen. 8, c. 20.

[*23]

& M. c. 10. For, as observed by *sir Edward Coke (a), "the execution of an offender is for example, ut pœna ad paucos, metus ad omnes perveniat: but so it is not when a madman is executed; but should be a miserable spectacle, both against law, and of extreme inhumanity and cruelty, and can be no example to others." But if there be any doubt whether the party be compos or not, this shall be tried by a jury. (612)

The mode of administering justice where insanity is relied upon as a defence at the trial of an accused person, or where it subsequently supervenes, has been thus further regulated by various enactments. By the statute 39 & 40 Geo. 3, c. 94, s. 1, where a person is proved to have been insane at the time of committing the offence of treason, murder, or felony, the jury must find specially that he was insane, and that he is acquitted on that account; and thereupon an order is to be made by the court, to keep the party in custody during the pleasure of the crown; and by sect. 2, when a person indicted for any offence is found to be insane upon arraignment, so that he cannot be tried, or when upon the trial he shall be found insane, the court may record such finding, and order the party to be kept in custody until the pleasure of the crown be known; and if such accused person be brought up to be discharged for want of prosecution, then a jury may be empannelled to try his insanity, and he may be kept in custody as before directed. Also by the 3 & 4 Vict. c. 54, s. 3, the provisions contained in the 1st section of the above statute of George III. are extended to persons charged with misdemeanors.

Further, by statute 3 & 4 Vict. c. 54, s. 1, if any person confined in prison under sentence shall appear to be insane, and that fact be certified by two justices of the peace, and two physicians or surgeons, a secretary of state may issue his warrant to convey such person to the proper asylum for the reception of insane persons; and * by statute 30 & 31 Vict. c. 12, s. 5 (b), a [*24] secretary of state is empowered to discharge absolutely or conditionally any criminal lunatic whilst undergoing sentence; and by s. 6 a criminal lunatic who, after his term of punishment has expired, continues non compos, is still to be detained in confinement.

III. Thirdly; as to artificial, voluntarily contracted madness, by drunkenness or intoxication, which, depriving men of their reason, puts them in a temporary frenzy; our law looks upon this as an aggravation of the offence, rather than as an excuse for any criminal

III. Drunkenness.

(a) 3 Inst. 6.

(b) Amending and in part repealing the 23 & 24 Vict. c. 75.

(612) Where insanity in a person indicted is alleged or suspected, the most discreet and proper method of determining the question in an important case is a trial by jury; but other modes may be adopted in the discretion of the court. Freeman v. The People, 4 Denio, 9; People v. Lake, 2 Park. 215; Shultz v. The State, 13 Texas, 401; Jones v. The State, 13 Ala. 153.

So, after conviction, if a person then alleges by his counsel that he has become insane, and the court doubts on this point, it will ordinarily submit the question to a jury. But if, on inspection, the judge is fully satisfied the allegation is false, he will, without this further inquiry, proceed to the sentence. Bonds v. The State, Mart. & Yerg. (Tenn.) 142.

The time to which the inquiry relates is the present. It seeks to ascertain the prisoner's mental condition now, not what it was at the time of the commission of the alleged offense. The State v. Arnold, 12 Iowa, 479.

Vor II 44

misbehaviour. A drunkard, says sir Edward Coke (c), who is voluntarius dæmon, hath no privilege thereby; but what hurt or ill, soever he doth, his drunkenness doth aggravate it: nam omne crimen ebrietas incendit, et detegit. It has been observed, that the real use of strong liquors, and the abuse of them by drinking to excess, depend much upon the temperature of the climate in which we live. The same indulgence, which may be necessary to make the blood move in Norway, would make an Italian mad. A German, therefore, says the President Montesquieu (d), drinks through custom, founded upon constitutional necessity; a Spaniard drinks through choice, or out of the mere wantonness of luxury: and drunkenness, he adds, ought to be more severely punished, where it makes men mischievous and mad, as in Spain and Italy, than where it only renders them stupid and heavy, as in Germany and more northern countries. And accordingly, in the warm climate of Greece, a law of Pittacus enacted, "that he who committed a crime when drunk, should receive a double punishment; " one for the crime itself, and the other for the ebriety which prompted him to commit it (e). The Roman law indeed made great *allowances for this vice: "per vinum delapsis capitalis pœna [*25] remittitur" (f). But the law of England, considering how easy it is to counterfeit this excuse, and how weak an excuse it is (though real), will not suffer any man thus to privilege one crime by another (g). (613)

(c) 1 Inst. 247.

(d) Sp. L. b. 14, c. 10.

(e) Puff. L. of N. b. 8, c. 3.

(f) Dig. 49, 16, 6.
(g) Plowd. 19.

(613) The doctrine that voluntary intoxication affords no excuse for crime committed under its influence is well established by judicial authority. See Pirtle v. The State, 9 Humph. (Tenn.) 663; Haile v. The State, 11 id. 154; Kenny v. People, 31 N. Y. (4 Tiff.) 330; United States v. Cornell, 2 Mason, 91, 111; Schaller v. The State, 14 Mo. 502; Pennsylvania v. Mc Fall, Addison, 225, 257; Tyra v. Com., 2 Metc. (Ky.) 1. A person in a state of voluntary drunkenness is subject to the same rule of conduct, and to the same rules and principles of law, that a sober man is; and when a provocation is offered, and the one offering it is killed, if it mitigates the offense of the man drunk, it should also mitigate the offense of the man sober. Shannahan v. Com., 8 Bush (Ky.), 463. And this doctrine is held to apply even where the intoxication is so extreme as to make the person unconscious of what he is doing. People v. Garbutt, 17 Mich. 9.

Where a person is made drunk by stratagem, or the fraud of another, or through the unskillfulness of his physician, this puts him in the same condition as other insane persons, and equally excuses him. Choice v. The State, 31 Ga. 424; People v. Robinson, 2 Park. 235, 304. And where settled insanity is the result of long continued intoxication, it relieves the insane person from responsibility in the same way as insanity produced by any other cause. Bailey v. The State, 26 Ind. 422; United States v. Drew, 5 Mason's C. C. 28; State v. McGonigal, 5 Harring. (Del.) 510; Cornwall v. The State, Mart. & Yerg. (Tenn.) 147; Lanegan v. People, 50 Barb. 266; Bliss v. Conn. and Pass. R. R., 24 Vt. 424; Boswell v. Com., 20 Gratt. (Va.) 860. Thus, a person incapacitated from moral and intellectual agency by reason of delirium tremens, is irresponsible. Macconnehey v. The State, 5 Ohio St. 77; Carter v. State, 12 Texas, 500; U. S. v. Clarke, 2 Cranch's C. C. 158, and see cases cited above.

In some of the States the crime of murder is divided by statute into two degrees, and the distinguishing test is, that the first requires the specific intent to take life. Under these statutes it is held that where the accused is shown to have been so drunk when he did the deed as not to be capable of forming this specific intent, his offense of murder is only in the second degree. Boswell v. Com., 20 Gratt. (Va.) 860; People v. Belencia, 21 Cal. 544; People v. Hammill, 2 Park. 235; State v. Bullock, 13 Ala. 413; Pigman v. The State, 14 Ohio, 555; Keenan v. Com., 8 Wright (Penn.), 55; State v. Harlow, 21 Mo. 446; Pirtle v. The State, 9 Humph. (Tenn.) 663; Haile v. The State, 11 id. 154; Swan v. The State, 4 id. 136; Kelly v.