Licence: Public Domain Mark
Credit: A monograph on mental unsoundness / By Francis Wharton. Source: Wellcome Collection.
Provider: This material has been provided by the Harvey Cushing/John Hay Whitney Medical Library at Yale University, through the Medical Heritage Library. The original may be consulted at the Harvey Cushing/John Hay Whitney Medical Library at Yale University.
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![prehension of danger to such an extent as to make them incapable of discrimination, or of precise or specific purpose, it was held that they could not be considered as guilty of that species of wilful and delibe- rate murder which constitutes murder in the first degree(n) Precisely analogous to this is the case of the drunkard, who in a fight slays an antagonist without any prior sober premeditation. In his intoxication he is incapable of such mental action as the term premeditates de- scribes. His mental condition may be such as to deprive him of the capacity to fprm a specific intent to take life, or to do any thing else. And yet at the same time, at common law, the offence would, strictly speaking, fall under the head of murder, for it would possess the inci- dent of malice, and would be independent of that of provocation. Under such circumstances the offence properly is to be ranked as mur- der in the second degree, and such has repeatedly been decided by the courts.(o) § 71. The same general view is taken as to the ciuestion of intent. (n) Wharton on Homicide, 371, 2. («) Cum. v. Jones, 1 Leigh, C12 ; Com. p. II Lggerty, Lewis' C. L. 403 ; Pirtle v. State, 9 Hump. 434 ; Swan v. State, 4 Hump. 131; 1'cuns. r. Full, Addison, 257. In a very re- cent case in Tennessee, the Court thus speak : Upon the trial, there was evidence that the prisoner was intoxicated at the time be committed the homicide. Upon the subject of the defendant's intoxication told the jury that 'voluntary intoxication is no excuse for the commission of crime ; on the contrary it i - considered by our law as rather an aggra- vation ; yet if the defendant was so deeply intoxicated by spirituous liquors at the time of the killing, as to he incapable of forming in his mind a design deliberately and prc- 1111■ 11 i1.11<• 111 \ In do the act, the killing under inch a state of intoxication, would only be murder in the second degree.' It is insisted that bis honor did not state the principle upon (his subject, as it has been ruled by this court. In the case of Swan r. the State, Judge Reese, who delivered the opinion of the (hum. sa] -1 i But although drunkenness in poiul of law constitutes no excuse or justification for crime, still, when the nature and e ence of B Cri is made to depend by law, upon the peculiar state and condition of the criminal's mind at (be time, and with reference to the act done, drunkenness, as a mailer of lad, affecting such stato and condition of the mind, is a proper subject for consideration and inquiry by the jury. The question in such ease is, what is the mental status? It is one of self-possession, favorable to a fixed purpose, by deliberation and premeditation, or did the act spring from existing ps ion, excited by inadequaie provo- cation, acting, it may be, on a peculiar temperament, or upon one already excited by anient spirits'.' In such a case it matters not that the provocation was inadequate, or the spirits voluntarily drank ; the question is, did the act proceed from sudden passion, or from deliberation or premeditation? What was the mental status at the time of the act, and « ith reference to the act? To regard the bet of intoxication as meriting con- sideration in such a case, it is not to hold that drunkenness will excuse crime, but to inquire whether the very crime which the law refines and punishes, has been in point of tact committed. In these remarks the Court intend to be understood as distinctly in- dicating, that a degree of drunkenness by which the party was greatly excited, and which produced a state of mind unfavorable to deliberation and premeditation, although not so excessive as to render the party absolutely incapable of forming a deliberate pur- pu-r, might be taken into consideration by a jury, in determining whether the killing was done with premeditation and deliberation.' The whole subject was ably reviewed by Judge Turley, in the case of Pirtle v. the State. In delivering the opinion of the Court, in that case, the Judge says, ai page 071 : 'It will frequently happen necessarily, when the killing is of such a character as tlie common law designates as murder, andit has not been perpetrated by means of poison, or by lying in wait, that it will be a vexed question, whether the killing has been the result of sudden passion produced by a cause inadequate to mitigate ii to manslaughter, but still sufficient to mitigate it to murder in ond degree, if it be really the true cause of the excitement, or whether it has been- the result nl pic meditation and deliberation ; and in all such cases, whatever few is able to cast light upon the mental status of the offenders is legitimate proof: and among others the fact that he was ai the lime drunk : not that this will excuse and mitigate the offence if it were dime wilfully, deliberately, maliciously, and premeditatedly; (which it might](https://iiif.wellcomecollection.org/image/b20999240_0063.jp2/full/800%2C/0/default.jpg)
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