
    Thomas Jones, plaintiff in error, vs. The State of Georgia, defendant in error.
    
    ' {!.-] In-án áeóusátion tit imlrdeiV 'where the defence turns upon the grading of ,, -;the iho.mieide, "the Judgé can Aot .withlioldfrbtil the .fconsídhrátio,h;bf.the jury, ,. apy of. fh? grades put.pi i^sue,either by/h^jygument-o^.the.re^uesfe^ijiiarges, Uut'alfbf the grades so put in issue, ought to be submitted to the jurji-, along ”1 with'pro]lér'instriictloiis,'asio'wiiat áottsiitüte's e'hoh'gi'adé!*l' ' ■
    O' [á.J.'In grading ft'he homicide,! thé j'ury itiay consider’the 'dídiikenrléhh'Üf the-accused, at the time of the killing, not to excuse, or mitigate, or extenuate his crime, but to assist them in deciding, when there was a próvocatió'n, whether the intention to kil!, preceded the provocation, or was produced by it.
    
      •’ -Mttrdfer; ih Rifeh'riióricl Superior Cbuk.’! )Tbded’before Judge HÍóxiyat MáyiTerhi) Í859;--:‘; ■’ ’’ ;i-‘ -'-íHv-' ■> *>
    
    ‘ o Tile plamtiñbm- error, -Tiiomas-Jon-es, was indicted; fot? the ¡.murder'of 'William Osborne.!- At the-trial,' the (following-’testimony ¡was submitted1 eon the <pait.of.itfteiState v«íí>.
    ■: Owen- Gilfoyle;. sworn: Wasr employed: byn.the «Augusta and Savannah Railroad-'Company,, last .ChristmaS;.iS,aw¡:the ¡difficulty between defendant ®nd deceased,whose; name -was ¡ Willi’am .Osborne p it tookopláfee -in Kahifsf.'bar-room which is, oppositeithe ’Savannah) depot, -in the: bit $ of Augusta/coun■■■ty-of Richmond,!1 State ’of Georgia; it-mas .imcthe-iMth of i December, ISSS/between-teri'and elevéií o.’ clo ck. lb th e. morn - ing,.'. 'Wentwith WllliaPioOsborne, the deceasedpto the-bar- ) ¡room p when' We ar,rived ¡there defendant.;andi sonre'one -else, i-were ttfateng some.noise-’ behind the: blinds.'.;- II- was oh the •• other side -df nthe". blinds,íin-the¡:bai--rbona-; ¡tbePfirst-I ¡saw of ’.the defendant he-.came 'from: behind'the blinds with Harney .. Willis and.'some other, manp whose maniegljdb rnot -.know. As soon as defendant saw.dhe ¡deceased, bet.walked .towards ¡where deceased.-was/ who was -talking wi’th-G’eorge ¡Carl, and ■ said two or-three times «hercould.-whip the deceased-'; J: did - not hear. Osborne make, any reply,, Then Jones drew what T-think was®-knife, and struck- t-he„<deceased;j he-.¡drew it . from some part of; his clothes,as I did not see, it in his.hands before thiat time ;■ I call, the knife®;, dirk knife;,,after .giving ■ the stroke ¡upon-.'the;shoulder/ on the-left. side, Carl®nd,Hous- .: ton- took hold of1 defendant; when .they, didstí, Osborne made a stroke at Jones; can’t say whether he struck' him, or.not. ■Carl and Houston, then put Jones, out .of the door there may have been some others that assisted them ingoing ,so.. A ' young.man hy the. name,of Crissp-who staid-with .Ruhr, ■ then pushed the dobr - to p¡ there was considerable .noise outside for some two-or three - m i n u t e s;;; J o n e st he n game push- - ing to’the-door again;' .the-young man,pushed, the, door . against defendant;- after a little-while Jones pushed the door in; he had the knife in his hand; Osborne was standing by the counter; defendant cut him again about five inches from the navel, on the left hand side; defendant backed then, and Barney Willis and some one else took hold of him. Osborne walked out of the door in the store part of the house, and some one asked him to go up stairs to see if he was hurt; saw no more; saw Willis and the other man throw defendant on the floor and take the knife out of his hand. I was standing some three or four yards from the parties when it occurred; could not see all things in the house, but saw all I testified to. Did not hear Osborne say any thing to Jones; he made the stroke at him which I testified to. Osborne was sober; saw Osborne afterwards up stairs on the bed; saw the wounds ; he lived until three or four o’clock next morning. I sat up with him all that night; he died between three and four o’clock on the morning of the 26th. Saw the wound on the shoulder-blade; it did not look more than skin deep to me. The wound on the loin was a pretty large one, his in festines came out through it; don’t know if they were cut; the doctor put them back.
    
      Cross. — Mr. Jones looked to me as pretty tight; he did’nt look very drunk; he seemed to be able to go where he desired ; he staggered about considerably; was not much acquainted with him to know if he was devoid of sense or not, and could not say when he was very drunk. Could not swear he had a knife until he (Jones) came back the second time; I saw what I thought was a knife the first time; am sure I saw it the second time. If Osborne said any thing to defendant, I did not hear him.
    Osborne was standing at the counter when defendant approached him; am certain that defendant struck the first blow. Defendant was out about two or three minutes after he was put out. Did not see any effort made to get Osborne out; did not hear Osborne say he would stay there. They got Jones down before they got his knife away ; did not see him try to cut his friends; two persons had hold of him; he tried his best to keep the knife. Did. not see Osborne take hold of Jones when he returned; he did not have hold of Jones when defendant cut him. Osborne and myself worked together, and had been acquainted a good while; went with the deceased there that morning. Osborne took two drinks that day; we were there about five minutes; could not tell what the fuss behind the screen was about. James Rooney sat up with the deceased a part of the night, and Andy Benny also sat up with him that night.
    
      Direct. — George Houston went away from here; don’t know when. Barney Willis, saw him on the day of the Mayor’s election ; have not seen him since. Last I heard of Houston he was in Macon.
    ■ Diderick Kahr, sworn: Heard the evidence of Owen Gilfoyle; it was my brother’s bar-room. I stayed there at that time, and saw the difficulty; it was on the 25th December last, about ten o’clock in the morning. I walked to my brother’s bar-room, which was opposite the Waynesboro’ ticket office; when I got there I saw some friends there, Myers and Jacob Sanchas, and some others. I stayed a little while. I saw Tom Jones, Barney Willis, William Day and some others come towards the bar-room ; saw Tom Jones was very drunk; they came in and there was loud talking. Saw Sanchas and Mr. Coker standing before the bar at that time; Sanchas asked Tom Jones to take a drink with him; Jones declined. Barney Willis came in and said defendant should not drink any more, that he had enough, that if he got any more he would throw it out again. Jones, Willis and the others walked towards the store and sat down. Jones was talking loudly : did not notice what he said. I then saw Owen Gilfoyle and William Osborne come over; 1 met them in the front store, and when they came in I told them “ Christmas gift.” They went to the bar-room to get a drink or segar, I don’t know which. I walked around, saw Jones and the others go to the door which leads to the store; saw Jones stop at once and say, as I supposed to Osborne, “I cap.jyfi-ip yop.f .-.i^erhen tfiok^orttkis kpifp; it appeared to,, me,fp4W-í*s<?$cgge^wept towards,0s,-{. bome^arrdijtpEtde^Jickai: Jiim with it.j.jtlie.jtjase, .Ti^as. on,it at thejime, gjf geempd,tpsme,that 0shprneffjefen<ied.that lick;, don’t ,fhinly]jat it^ur^imj-af, that fiiue,;. §aw, that .George . CarI.-jy:,asIbet\Y->een;fíipm;,.saw[ Osborne strike at Jones pn the. left,.side,; ,am pot certain vyhpther - he, stfuck.himif seemed,, to mipRe,struck himson.fhe,-leftside;,; ^aw Carl ,p,ush Jon.es;, back through fkp,bariroonidporviij,to the store,. Jy/tent tpwardpi,. Osborne an/I told, him, Rill, go. ,outipf..the side., door leading into ■the ;enfry,;keep put of the fuss, don’t .have no fuss here./ He,gave, nap torundei:s,tandhp \yas.;ript, gofng .oftf.;. he said,, I think, that he did not want to have^a.fuss there.. ,I turned round,to the dpor which leads.,to- the.front store to shut..the door;.,;uf the same timfe( Jones,had come .hack; I. ca,Ught, Jones between-the^oor...as I was.^huffing, i,t. ,.I.let go the. door and-yrent round the,ypunter;;. Jopes went right up.to., Osbprne,,.. 'Vyhen,. I. was ..around the..counter sa\y Osborife,. haveNoidj.of Jones pushing him hack; ,he.ha,d one hand .ojtt, the thro fit and. the other,, on, the, arm of defendant I.saw ■ Tom Jones stab, at Osborne ajt the same time, with what appeared the same dirk; sa\y ffim;stab.0s,borue on the side, the place.,- cfescpib.ed by 'Mr.- Gilfoyle.., I then .saw Willis,,and, another person whom I did not knp\y, takerthe , knife ,away; from, defendant after parting, therm Jpnes .told mp.after they took the knife away .from him, that ,he was a friend to - Jake Clarksqn,,and that he,had imposed on him, meaning, as I,suppqsed, Osborne. .1 theiR saw. .Willis and, the others.take, Tom Jones pff. Saw Osborne’s .clothes.,cut,.and .blood coining through it;. the ,.cut.was. on, the. side. ¡ If. seemed,to. pie • that Jopes,knew.. Osborne. Á7\fery .short fimqkad ejapse^, between the time that.Jones was. taken, .out and- returned., Osborne.was..pu.shing defenc^Rt .back when I sp,ty-fhem3fro.iri behind the c.pu.ntgr.,.;. I suppo.se. if was to defend.himself., WpU. lis .took . Jones’s, knifaj .a\yay:; , they had. fo. scuffle .to-.talrRit,. away; they seemed to haye 'him offthe "floor "to falce thé~ . ./tí i ;:iu a ¡kií'C.- J :¡ni >! a ■ ',iv; <_> j s o ■ ? --,•»> knife away.
    
      Cró'ssto understand t'hiñ^else; tilt JPwak in 'such'a Entry ’ that i dicfnbt understand''wháí fie lshi&.'' Jonéé’’ ñfehdh'"were Ufyihgíó get^him1’ of híkihihcl." ’ísá^Tom Jones'haWéa'Mife" in his haiid^ was afraid he would cut me, I therefore left the door,' knowing that die\4ouM ’Ho' só whfeii drunk.’ '1 Did riot notice whether hi’s'fíiéiids' Were'catitiouá of'nót WHéní the^ disárnied Him. Barney' Wiilis 1 did _say! he wak foolish, and hé'shóiüd-drmkno ihore; this Was "before Osborne carné fThe lóüd’talking1 behiiid the “blih'fe* Was" the -effort of JHnes’sTriehds to -take3hinf bff/’i't Wuk t'heirtliey Hiét'Osbdrhé' and Gflf<tyl& -'WEbir I saW'ihetn ffbin behind the counter,'Ostíbfnétía’d'hdvánced a short distancerfrom'the,'píláce'>Whéi<é;Í kaw him ás‘T;went’ behirid thb counter; he wak pushing’liim when the' libk'-was given. *; 5sborne‘Wa:s the largest' miih, and "Weighed about ISO bv'iido póhiids, jdeféndaní/abó'ut'l25 pburíds;} fhifilc that lick-wangiVeh 48■ deceased ifrth'efoin, whilst-'he' was''plish-’ing defehdhiii ¿oblé four‘tii3five-feet f "He ':hdd3defendknt tty1 the thrbát* and right 'armY Défendáht whéif; sbb'er, was upright' 'áhdfgeriílériiánljr ihJ hfs'fcbñfltíct:' ''(Wtíérí Hrfáütíéktfed' off ihat'tifcaMónwére His acts'kihh'-’as'if He knew'Whát lie3 wás'^abotit1? ' Objected 4ol Objection" biístained.)'-' ■ Heard' Joneá'tsíik;1 Hé thlH4dllóüd; !He'saí’d a"heap^bf things which? I did íio't notice. ‘ The ‘impression mádé upon my mind from wh'afhé safd’wák' that lié' was toó" drtrtñc tó"khów;'WHatf Ke; was nn.■•.ifi,-' t;Jü ■ ÍJ TfiJ
    
      iHrect. — WHelí ffbñes ’'cat¿'e: hack,- Osbcirné Was ■sfánditig’ ing'iñ'thé MbfióbiH’, EbmewHere ifí HofítíBflithe0ébüíitéf ;íl:Ké' went right towards Osborne, and I wenf-behíhHthé'cbiintefj Osbbrhé^' áhd débéa^éH ‘tóoted fflHrá!íéie:Hb,ri‘fiÉfeif,-5tóWalctó a little' /table ;:fÓsbot'AeJI Was !ipúsHiiig £déféii'dánf ‘ badil1’’ Saw Jones go up to Osborne; don’t think Osborne walked up to-meet defendant. Jones, when he came in the door, advanced to Osborne with his dirk.
    
      Cross. — When I turned, after I passed around the counter, I saw defendant and deceased together. Osborne had pushed defendant back about three feet from where he stood when I went around the counter, and he pushed him some four or five feet afterwards; defendant was cutting at the deceased at the same time.
    
      Robert li. Corker, sworn : On the morning of last Christmas, as I was sitting by the stove in that bar-room, Jones and others came in while I was sitting there; they came around and took a seat by the stove, and I got up ; just as I was going out, Osborne came in; Osborne asked me to take a drink with him; I declined, and walked on to the front part of the store, near the door; I remained between three to five minutes, my attention was attracted to a noise in the bar, I turned and saw them putting Mr. Jones out of the bar. Saw Osborne standing at the bar about the same place where I had left him. The parties tried to close the doors upon Mr. Jones; Jones had a knife in his hand, a long, slim knife, it had the appearance of a dirk. They did not succeed in fastening the door, and he rushed back. I then stepped towards the bar-room door, and Osborne walked out into the front room. I stepped to the door and saw Willis and others have Jones upon the floor trying to take his knife away. I stepped to Osborne and told him he had best to leave; he said he could not leave, that he was cut; he pulled up his vest and showed me where the blood was coming through his clothes at his side. Saw Jones scuffling with knife in hand to come back; he made a remark to Mr. Kell, that he would cut. him or any body else who would prevent him from coming bade
    
      Cross. — Did not see them take the knife away; saw Barney Willis and others make the effort to take it away. There were two or three persons there I did not know; think I saw Kell and defendant together several times; don’t know as to the extent of their friendship ; Kell was there taking-care of defendant, and seemed to be acting as his friend that day.
    The following evidence admitted by defendant’s counsel:
    The description of the wounds.
    The death of William Osborne.
    The wounds which caused his death were those described in the indictment, and that the death occurred at the time stated in the indictment.
    State closed.
    The defendant offered no evidence, and his counsel requested the presiding Judge to charge the jury:
    1st. That mental alienation or unconsciousness from any cause whatever, at the time the deed was done, to the extent that the accused did not know what he was doing, will rebut any presumption of malice arising merely from the apparent recklessness of his conduct, so as to reduce the offence from murder to manslaughter; the Court stating that he gave the instructions as asked, except as to the furor brevis of drunkenness or fit of drunkenness; the Court further adding, in substance, that, if a party be deprived of reason by the act of God, such as occurs in the case of lunacy or idiocy, or permanent insanity, then, he is not responsible; but this exemption does not apply when he voluntarily, and of his own accord, induces temporary mental alienation by intoxicating drink. Which charge, so requested, the Court failed and refused to give, to which failure and refusal, and to which addition and exception to the language of said charge, counsel for prisoner excepted.
    2d. That the existence of malice is not presumable in-this case, if on any rational theory consistent with all the evidence, the killing was either justifiable, excusable, or an act of manslaughter.
    
      The Court refused, to give the charge as requested, adding, “ the qpestion, of malice is left distinctly to the jury.”
    To which failure and refusal 'to' charge in the language as '#)'• ' rJ :C‘ 5! I* ‘ E ‘ T k, jj y.- . ■ ' • £/ requested, counsel for prisonér éxcéptedk '‘
    3d. That the jury must find from the evidence that at the i ¡; t * j ‘ kjf,16 , /* * •'? " N v- y, -y - {' í ’ time or thelalling, Jones was a person of sound" memory arid discretion, otherwise the defendant cannot lie 'convicted 'of , 1 :¡ ; o ¡ ¡. murder. ,
    The Court stating that the instruction was given as risked, '-o si.tt ; -:t : -P.-sir j:.i : •>.•! . except the unsoundness or Avant of discretion Eiro.su from a furor brevis, or fit of drunkenness, as before stated. ’
    To which failure and refusal to charge, as requested, counsel for prisoner excepted.
    To each'arid all' o'f which failures and ’refusals to charge as requested, and' chrirg'es as given, counsel! for prisoner ex'-’ eeptéd, and now excepts arid assigns the same as' error.,' '
    A'verdict' of guilty was rendered'; whereupon,1' counsel fob prisoner moved’the Court for a'new trial, on the following’ grounds: ■
    1st, Because 'the Court' erred iii refusing 'to charge ‘the jury, in,the' words TolÍo\ving,* as 'asked' by prisoner’s cqunf-r sel,'to-wit“That rirental alienation'or' unconsciousness" from any cause whatever, at the time the aéed was done, to the extent that tlie' accused' did. riot’ luiów 'Ávhát 'Iie Avas' dqmg^'will pjehút any presumption of mrilice arising' merely"from , the apparent recklessness’ of his' condtict, so as to reduce"thé offence from murder "to ' ha'a&slktightóíl The Gpur't’.stating Jthat he' gave the instructions 'ah',kgkfed’,"except as j:(0''théyMror‘5re¿ií of drunkepnes^'-or a? fit of drunkenness! ' The Court' further' ridding;, hi' substance',' thkt>'if'a; party’be dépnved'o’f rérisón by ttie'acfbf'Go<h sUch^akobcWfk' in the case of lunacy or idiocy, or permanent insanity,' ‘then’ he is not'responsible; but this' exemption does Vot apply whérk he vbiuhtá'íity'áhd'pf hik oVk'üribbíd tinkijbés' tempóray^méh'tai’aiiénatióh'hjr'iufoxicatiiíg'dfihk.^ " ” “
    2d. Because the Court erred in his ruling,híiidin réfhsihgtó' charge the following words asked by; defendant’s counsel,-to be given in charge to the jury: “ The existence of malice is not presumable in»this-ease,iif ,©n any rational theory, consistent with all the evidence, the killing was either justifiable, ex'cüsáble', :or an aCtof manslaughter;” ■ The- Goúrí refusing to'give sUCli'chargef adding, “the -question of'malicffiiíí' left distinctly to* thé jury.” ! »' : '• ■" ■ •• ..«•
    3d. Because the: Court érred iii his ruling 'and Charging - upon the following-instructions asked for by defendant’s counsel, to-wit: That “théjury must find from the evidence that at the time of the killing, Jones-Was a person of sound memory and discretion,'otherwise the- defendant1 cannot be' convicted of murder -f the Court stating that the instruction was given as asked, except the unsou'ndness or.want ’of dis-'! cretion arose from a furor brevis, or fit of drunkenness^ its ■ before stated; ' - - ,
    4th. Because One of the jurors who' sat upon the trial of the cause, and; who rendered' the verdict of guilty as above stated, to-wit, Charles W. Gruber, was not an impartial and unbiased jurar,, between the State and the defendant,for that said juror had before said trial, expressed, very decided . .opin-' ions against the-defendant; -that he knew him,, and that. des fondant ought to be-hung;- which was wholly unknown to the defendant ox his counsel at-tlie time he.was put.upon the. prisoner by -the.-State, and until after said verdict was -ren-; dered.' . In support of which last- mentioned ground for .-new trial the annexed -affidavits- were submitted, marked exhibits A, B, C, &c.. The said juror, Charles ,W. Gruber, having been previously asked the questions prescribed by the statnutos, had by his- answers thereto rendered himself.a coin-pe-. tent juror. »,..<. •- . ■ .
    The presiding .'Judge - refused to grant a. new-trial, Where-; upon, defendant excepted,; and assigned said refusal as, erron
    Alex H. Stephens; and E. J. Walker, for plaintiff in error.
    
      Sol. Gen. Rogers; and William R. McLaws, contra.
    
   — Stephens J.

By the Court.

delivering the opinion.

This was an indictment for murder. The killing was admitted upon the trial, and the defence turned wholly upon the grading of the homicide. The Judge was asked by the defence to charge the jury, “ that the existence of malice is not presumable in this case, if on any rational theory consistent with all the evidence, the killing was either justifiable or excusable, or an act of manslaughter.” The equivalent of this proposition, in simple terms, is that the jury should not grade the killing as murder, if the evidence would justify them in grading it either as justifiable homicide or as manslaughter.

The charge thus stated becomes a truism in criminal law, and we think was improperly refused. The Judge says, that the grade of justifiable homicide was not presented as an issue by the argument. If this remark be an intimation that the issue ivas not properly presented, it is sufficient to reply, that it was as competent to present it by asking a charge, as by making a speech, and the very request under consideration does present the issue. The Judge refused to let that issue go to the jury, because in his opinion there was no evidence which could support it. His opinion that the evidence could not support the supposition- of manslaughter, if he had happened to have that opinion, would have been equally potent to exclude that grade also from the consideration of the jury. His opinion, then, if such had been his opinion, that there ivas no evidence which could possibly justify or mitigate the killing, would have been sufficient foundation for a judgment of murder by the Court, without the intervention of a jury. The homicide being admitted, there were but three possible conclusions in the case: murder, manslaughter, or justifiable homicide; and the exclusion of any two of the three, would necessarily have been an adoption of the third. The Judge held, that his opinion was competent to exclude one of the three conclusions of law; if so his opinion, if he had happened to have that opinion, would have been equally competent to exclude two; and the exclusion of two, would have been the adoption of the third, and a settlement of the whole business by himself.

He had no use for a jury on the issue of justifiable homicide, because, in his opinion, there was no evidence which showed a justification; and if he had happened to be further of the opinion, that there was no evidence which showed a mitigation, he could not have had any use for a jury on the issue of manslaughter.

The remaining conclusion of murder, would have been as certain as that one remains after taking two from three; and he could have had no more use for a jury in arriving at it, than he would have had for a jury to assist him in deciding a motion for a nonsuit. Would this be allowing the jury to judge of the law and the fact ? It would be to obliterate the line of demarkation between the province of the Judge and the province of the jury in criminal cases, and to unite them both in the person of the Judge. To judge of the law and the fact, in a criminal case, is to determine from the evidence what acts were done, and with what intentions, and then to decide what crime they constitute, or whether they constitute any crime at all. In this case the Judge allowed the jury to decide what crime, but refused to allow them to consider whether there might be no crime. They were entitled to decide all the law of the case, but they were precluded from deciding a very important part of it. In the case of Holden vs. The State, 5 Ga. Rep. p. 445, this Court, consisting at that time of its first three Judges, said: £iIn short, the Court in the full exercise of its own functions, must still obey the behest of the statute, and concede to the jury the exercise of their judgment on all the law of the case

In an accusation of murder, where, as in this case, the defence turns upon the grading of the homicide, in order that the jury may exercise their judgment on all the law-; of- the •case, all of the grades put in issue, either by the’argument or ■the requested charges, ought to be submitted to'their decision, along with proper 'instructions as what Constitutes - each ¡ grade.

The Judge instructs, but the jury decides. • Eveaynperson accused of crime is entitled to have the-decisión of a jury, upon any defence of law which lie may chdose to rest upon the facts in evidence. Courts may-distrust juries^ but the -Legislature'coufided iii -them." ■ - ■ : ■' •

-In grading this- homicide, what instructions. Ought to have been given to the jury concerning the drunkenness of the accused? This Court, approving of the Judge’s' refusal. ; to give-the instructions “asked bythe defence,-thinks-that other important -instructions not given; would have been- appro- ; priate to the-facts -in evidence. ■ T shall point out ‘what we -•think would have been the proper instructions, but shall first ,present those! views-of the general subject whichleadmy own .' -mind to the conclusions at which the Court, arrived! ■

Oncside in the. argumeut affirms as a grea-t principle, that ' no man, drunk or sober, should be punished for a crime which he did not have sufficient mind to-perpetrate; and the other replies, with an equally important principle, that drunkenness is no excuse for crime. The two sides,-each relying upon -its chosen principle, have arrived at singularly conflicting conclusions. The truth is, that both these principles are correct, and constitute with the just deductions-from them, but parts of an harmonious whole, sustained by law. and sanctioned by reason. '

The error which the side of the accused commits, lies in assuming too large a quantum: of mind as the minimum which can fnrnish the necessary mental element in all crime —in erecting too high a- standard.of mental capacity. Different classes of crimes do involve different degrees-of mind, and in alt-classes there may arise particular instances which, in the mode and circumstances of.their perpetration, may invüíve^eVeÜ á'íügh’clégrée. of scientific knowledge. ^Siit'sub‘"’j'eíctfttí this'jjuhlifieá'tiori of the general tryíthj, th^'gerieraí'truth ’ itself Is, thát fbe hiifiiirium' of mind which can furnish? the 'necessary mental element in crime, is. a far smaller quantity ‘thárUHv'cfe cláiriied by'the argument* fori the áccüriéá.‘>'"’^,he ’’■aYgUrnent,'rightfully assuming that' there cari he .no murder iVithburthe'friérital eletíiferit" of malice, proceeded*Uo'claim, A Jli.-A.-'-' >*_____WlSj!}' ''hierifeion¥ dffthaf • irialfcri riiliich' enters* into ’the'constitution ‘of murder.' 1 he popular mea. of malice in its sense of re-J Vehgej° h&tred.' Hnéf'^ll will, has nothing to cío’ with .’the* subject! 0 AriWmfeef"o'f cases might’be given td' shovy the jdiffer- ■ ericd beWderi fhripbpiilar idea, áhd'that malice whieh 'forms *;'á'heeésisárjí p'ar’t of the legal crime of'murder .......

c ':iTho'érrme/of infanticide presents the difference in’.a' stri•dcingMight.1 ’'This crime ib' clear murder, arid tlie mother.who destroys her infant to conceal her own shame, has’legal*ma■lice,'though'iri’pbirit* of fact she 'may feel rio hatred towards •ahy huirian'being' iri tbe World, iior any riridifference to humrin life in general, arid may actually have the yearnings -'ofá riiother’s' Ic/ve towards' lief' innocent'victim — loving its -li-Fé' jrist dels 'thári libr own reputation. Here there is rio mal■;ifcb, ih the popular sense’assumed in this argument, arid yet ■ the lawbaysth'efe is malice, arid that the killing is murder; •* áfid réás'óh gt'ves íts'"imdóubtirig sanction to the' law? iJThe ■légal idea bf mallce'iii the crirrib of murder is, simply, an in- ' tbn't to kill ri huiriau "being, in a cáse where the law would •’neither justify borin'airy degree excuse tbe intention, if the ' killing should take place as' intended. I make no distinction between malice express and'malice implied iri this defi- ■ riitiohj for there is no difference except’in the mode of arri- ' firig at the fact'.’'1 You may pi;ovritlie particular intent, or you ■ may prove the more general intent,; ryhich .includes it,and ‘'implies it, but tlib thing when once you get it, is the same in both cases, and is the simple intent to kill a human being, in such a case as I have stated. Whether this intent springs from hatred or from a sense of shame, or from the mere phrensy of drunkenness, it is malice, it is the mental constituent of murder, unless there is something to justify the intent, or in some degree to excuse it. Now, the kind of a case in which this intent happens to be formed, obviously has nothing to do with the quantum of mind involved in its formation. Whoever then has mind enough to form the simple, intention to kill a human being, has mind enough to have malice, and to furnish the mental constituents of murder. And even this quantum of mind, small as it is, is to be viewed and investigated in the light of an important rule of evidence applicable to all men alike, and founded on reason and necessity. It is, that all men are presumed to intend the natural and proximate consequences of their actions. When a man kills another by the use of means appropriate to that end, he is presumed, drunk or sober, to have intended that end.

-This is but a presumption, but it must-prevail until it is rebutted by other facts and circumstances, showing that the end was not intended, but was accidental; it cannot be rebutted by the mere vague opinions of witnesses that the man had “no mind,” or “didn’t seem to know what he was doing.” The result is, then, that any man, sober or drunk, sane or insane, has mind enough to furnish the mental element in murder, when he has enough to form the intention to kill a human being; and he shall be presumed to have formed that intention, whenever he has done the act of killing by the use of appropriate means, unless there are circumstances to show that death was an accidental and not an intended consequence of his act. This doctrine faithfully enforced, offers no escape to the drunken man, from punishment for the crimes which he commits, and for those not committed by him, he ought not to be punished. Under this doctrine, if it were the whole law applicable to his case, even the poor idiot could “ scarcely be saved.” But it is not the whole law applicable to his case.

And this brings me to a consideration of the great perversions which have been made of the doctrine that drunkenness is no excuse for crime. The foundation stone of these perversions,, not distinctly shaped in the argument, but unconsciously assumed in it, is a feeling or notion that the exemption of insane persons and young children from criminal responsibility,'is not the result of positive law excusing them, but is the simple consequence of their mental deficiency, which is supposed to be so complete as not to be capable of furnishing the mental element of crime; while the drunken man, with the same actual mental deficiency, is held responsible for his actions, not because they are crimes having the mental and physical element of crime, but by virtue of a certain destructive capacity infused into him, from reasons of policy, by the law which declares that drunkenness shall be no excuse for crime. The reverse of all this is the true philosophy of the law. The law deals with all of these classes of people, as having a sufficient quantum of mind to have bad passions, and. evil intentions, and carelessness in their • actions, and so to furnish the mental element of crime, but as laboring also under an infirmity of reason, which serves to betray them into these evil intentions and carelessness, and at the same time breaks down this power of resisting temptation. The law comes in then, and excuses the young and the insane, out of tenderness towards an infirmity which is involuntary, and at the same time, to guard against the possibility that men might make the sameexcuse whenever there is the same infirmity of reason, the law takes special care to ■exclude drunken men from the excuse, because their infirmity is voluntary.

The result is, that the young and the involuntary insane occupy a platform of their own, by virtue of an exception made in their favor, while the voluntary insanity of drunkenness being excluded from the exception, stands just as if no exception had been made, and the drunk man and sober man occupy the same great platform of responsibility for the-crimes which they commit, and for no others. When their actions have the criminal mental element united with them, they become crimes — but not till then.

The crimes of drunk men, like those of sober men, are actual crimes, not constructive ones — whole crimes, not'pieces of crimes. And drunkenness, like all other things which are not'made excuses by positive law, is no excuse for crime, but is like: all the rest, a fact which ought to be used whenever: it can, as it often may do, ’to shed light upon either branch of the alleged crime, the physical or mental, in investigating-what'crime, or whether any crime has been committed. The argument - might safely be left where it now stands, but I .prefer to trace the fallacies which have been founded on a sound principle, through the two special forms in which' they have presented themselves. One is this: Drunkenness is no excuse for crime, therefore, drunkenness can not be used for any purpose o'f defence in a criminal accusation. A non sequitur, if ever there was one. Ignorance of.chemistry is no more an excuse for crime than drunkenness is; therefore, if the reasoning be good, ignorance of chemistry cannot be used for any purpose of defence in a criminal accusation. If Dr. Webster, on his celebrated trial at Boston, some years ago, for the murder of Dr. Parkman, could' have shown that he was ignorant of chemistry, he-could' have shown conclusively, not that he had an excuse for the murder, but that he did not commit it; for the slayer,, whoever he was, had carried the dead body through a process of destruction, involving high chemical knowledge. No doubt the Court would have allowed him to save his life by proving his ignorance of chemistry, although ignorance-of chemistry was no excuse for crime. Suppose now, the Doctor could have proved that he had been drunk to the-point of stupor or mania potu, during the time when that chemical process must have been performed. No doubt the Court would have allowed him to do so, not to excuse, mitigate, or extenuate his crime, but simply to show, in a very satisfactory way, that he had not committed the crime; for it is exceedingly improbable that a man in that degree of drunkenness, could have conducted the chemical process. And; Dr. Webster would have been allowed to save his life by proving that he was drunk.

Somey ears ago, I knew an attempt at house-burning, where the slow match, found after the fire had been extinguished, exhibited great ingenuity in the bending of wires and crooking of pins in a peculiar way, so as to secure both slowness and certainty of ignition. The crooking of the pins especially, in a manner so peculiarly adapted to the end in view, was the theme of village wonder, for weeks afterwards, and is still remembered by many persons as a remarkable display of mechanical genius. Now there were two or three men who frequented that village in those days, any one of whom, if suspicion had fallen on him, could have proven, that at any time for a week before the fire, he had been too drunk to crook a pin. Would any man have discarded that evidence, if he had been seeking for the truth ? Both these illustrations show the absurdity of excluding the consideration of drunkenness, in investigating the act, which enters into the alleged crime; but another form of the fallacy is, that when the act appears to have been done by the accused, he shall not be allowed to excuse his act by any consideration of his drunkenness. It might be sufficient to reply to this, by saying, the law says, that for crimes, not acts, drunkenness shall be no excuse. This form of the fallacy ignores utterly the most important element of the crime; for the mental part of the crime is criminal in morals and religion, without its union with any act whatever, while neither in law nor morals, has the act any criminality whatever, until connected with a criminal state of mind. Acts need no excuse,1 crimes do. This form of the fallacy puts a drank man, not on the same platform with sober men, but on a much more disadvantageous one. The act when done by appropriate means,, carries a presumption against all men, sober or drunk, that it was intended to be done; but this proposition is to leave it but a presumption against sober men, and to fix it irrevocably as a conclusion against a drank man. The proposition admits, that drunkenness, like any other, “no excuse” for crime, may be used to throw light on the investigation into the physical constituent of the crime, but denies that it may be used in examining into the mind, which is thé special field where drunkenness displays its power. That is to say, it may be used in that part of the investigation, on which it ordinarily throws least light, but must be excluded from that branch on which it usually throws most light. Can there be a sensible reason for such a discrimination between the purposes for which drunkenness may be used ? It is too apparent to need argument, that when the act is shown, the mental constituent of the crime still remains to be investigated, and in this investigation, there can be no rational discrimination made between the light which may be shed upon it by drunkenness, and that which may be shed by any other fact in the world. Let me illustrate this branch of the investigation. The fact of being a skillful physician is no more an excuse for crime than drukenness is, and therefore, if the reasoning in the last form of the fallacy be good, the fact of being a skillful physician, ought not to be used for the purpose of showing with what intention an act was done. A man indicts another for an attempt to poison him, and proves that the accused actually administered arsenic to him. Here the act is done, and the sole question is as to the intent with which it was done. The accused simply shows that he was a skillful physician, and this single fact, in connection with the other fact, that the man did not die, but got well, explains the whole case, and shows that the act was done with an innocent and praiseworthy intention; for if a skillful physician should intend to kill by arsenic, he would infallibly regulate the dose to kill, and not to cure. And here the man is permitted to “ ex-, cuse” his act in the language of the fallacy, by proving his own superior knowledge, a fact which of all others, is surely the last which ought to be allowed to excuse any crime. Is it not plain, that he does not use the fact, to excuse his act,” but simply to show that the act was an innocent one which needed no excuse ? Shall not drunkenness be used for the same purpose when it can shed the same light ?

A skillful marksman shoots at a bird, at a short distance, but misses the bird and kills a man, who was behind the bush, and who turns out to be one with whom the marksman had a deadly feud. He is indicted for murder. The fact, that a man so skillful with his gun should have missed the bird at so short a distance, and should have hit his enemy, makes a strong impression, that the shooting at the bird, was but a pretence to cover the real intention to slay his enemy. But the man shows that he was very drunh, a fact which renders it at once very probable that he should have missed the bird, and very improbable that he had sufficient-capacity for so deep an artifice, as the one imputed to him, for drunk men are much more apt to be the victims, than the perpetrators of tricks. Is there in the world, an enlightened Christian, or a barbarian, who will say that this man ought not to be allowed to save his life by proving that he was drunk ? The fact has no effect to excuse his crime, nor to excuse his act, but to show that his act, though an unfortunate one, was innocent and needed no excuse; or else, to show that it was not an act of murder, but an act of involuntary manslaughter, in the pursuit of a lawful intent without due caution and circumspection. On the question of murder, his drunkenness is in his favor, but on the question of carelessness, in the pursuit of his lawful intent, it is against him; for carelessness is much more easily believed of a drunken man than of a sober man. Hi's drunkenness saves him from the one charge, and convicts him perhaps of the other, not by excusing the one crime, nor aggravating the other, but simply by shedding the light of truth upon both. Apply these principles to the case before us. Osborne with one hand seizes Jones by the arm, and with the other by the throat, and pushes him back. Jones stabs Osborne andkills him. Jones is indicted for murder. His defence is that the killing was but the repelling of an assault and battery, which reduces it to manslaughter at all events, and will also reduce it to justifiable homicide, if the jury should ■ think he had reasonable fear, that Osborne would choke him to death. The State replies, that though such an assault and battery occurred, the killing was not produced by it, and was but the execution of an intent formed and in process of execution, before the assault and battery occurred. Right here, hangs the case, the defence maintaining that the intent to kill was produced by the provocation, and the State maintaining that it existed before. What is the evidence to support the view of the State ? Jones was walking up to Osborne with a knife in his hand, and he was very drunk. Here his drunkenness is against him, for it is easier to believe that a reckless drunk man intends to kill without provocation, than that a thoughtful sober man has such an intention. This is the whole case made by the circumstances of the fatal rencontre, to show that Jones had an intent to kill before he received the provocation. But the State wisely chose, not to rest the case there, and the strongest evidence on the point, is light reflected from a previous rencontre, in which Jones had much more clearly manifested the intent to kill. The argument was, that having had the intention in the first rencontre, he must be presumed to have persisted and continued in the same state of mind, up to the second rencontre, a very short time afterwards. The interval between the two rencontres, is not definitely stated, but it was sufficiently long for Jones to be put out of the house and come back again, and be the interval long or short, the whole force of the argument lies in his presumed persistence and continuance in .the same state of mind, from the first rencontre to the second. And righthere his deep drunkenness was evidence in his favor, tending to rebut the presumption of such a persistence or continuance in the same state of mind. Who needs to be told that drunkenness may almost destroy memory for the time, making it as a mere seine, letting events and thoughts, and intentions slip through it as soon as they fall into it? He might have forgotten the first rencontre, and all its passions and intentions, and so have brought none of them to the second — if he was very drunk. But drunkenness, far short of the point of extreme forgetfulness, renders the mind inconstant in purpose, and exceedingly whimsical and rapid in its changes from one emotion to another, and even from one class of emotions to another class.

Who has not seen the drunken man, breathing threats one moment, and the next, uttering maudlin professions of friendship — in one moment an imaginary hero, in the next, an abject whimperer ?

The whole tendency of drunkenness, was to change that state of mind — which the State maintained had not been changed, but had continued from the first rencontre to the second. Its tendency was to rebut the strongest evidence, which showed the formation of an intent to kill, before the provocation was given. And it is exactly for this purpose, that the drunkenness, in the opinion of this Court, ought to have been considered by the jury, to assist them in deciding, whether the intent to kill preceded the provocation, or was produced by it.

Judgment reversed.

Lyon J. dissenting.  