vice and misconduct to shelter himself from the legal consequences of such crime. But the crime must take place and be the immediate result of the fit of intoxication, and while it lasts; and not, as in this case, a remote consequence, superinduced by the antecedent exhaustion of the party, arising from gross and habitual drunkenness. However criminal, in a moral point of view, such an indulgence is, and however justly a party may be responsible for his acts arising from it to Almighty God, human tribunals are generally restricted from punishing them, since they are not the acts of a reasonable being. Had the crime been committed while Drew was in a fit of intoxication, he would have been liable to have been convicted of murder. As he was not then intoxicated, but merely insane from an abstinence from liquor, he cannot be pronounced guilty of the offence. The law looks to the immediate, and not to the remote cause; to the actual state of the party, and not to the causes which remotely produced it. Many species of insanity arise remotely from what, in a moral view, is a criminal neglect or fault of the party, as, from religious melancholy, undue exposure, extravagant pride, ambition, etc. Yet such insanity has always been deemed a sufficient excuse for any crime done under its influence."

PIRTLE v. STATE.

[9 Humph. 663; Laws. Insan. 645.]

A statute of Tennessee provided that all murder committed willfully, deliberately, maliciously and

premeditatedly" should be murder in the first degree, and all other kinds of murder should be murder in the second degree. This statute being in force, Pirtle killed a man and was indicted for murder in the first degree.

Now, Pirtle was drunk at the time, and the question was whether he could plead such an excuse at all. The court decided that he could. The statute, it said, drew a distinction unknown to the common law, solely with a view to the punishment; murder in the first degree being punishable with death, and murder in the second degree by confinement in the penitentiary. In order to inflict the punishment of death, the murder must have been committed willfully, deliberately, maliciously and premeditatedly; and therefore whatever fact was calculated to cast light upon the mental status of the offender was legitimate proof; and, among others, the fact that he was at the time drunk, not that this would excuse or mitigate the offense if it were done willfully, deliberately, maliciously and premeditatedly (which it might well be, though the perpetrator was drunk at the time); but to show that the killing did not spring from a premeditated purpose, but sudden passion, excited by inadequate provocation, such as might reasonably be expected to arouse passion and heat to the point of taking life, without premeditation and deliberation.

It is an old principle of the common law that voluntary drunkenness does not excuse a crime committed while intoxicated. Hear the sages:

Lord Hale, in his History of the Pleas of the Crown (p. 32), says: "The third sort of madness is that which is dementia affectata, namely, drunkenness. This vice doth deprive a man of reason, and puts many men into a perfect but temporary frenzy; but by the

laws of England, such a person shall have no privilege by his voluntarily contracted madness, but shall have the same judgment as if he were in his right senses." Lord Coke, in his first Institute (p. 247), says: “As for a drunkard, he is voluntarius dæmon, he hath no privilege thereby; but what hurt or ill soever he doth, his drunkenness does aggravate it." Hawkins, in his Pleas of the Crown, says: "He who is guilty of any crime whatever through his voluntary drunkenness, shall be punished for it as much as if he had been sober." Blackstone, in the fourth book of his Commentaries, says: "As to artificial voluntarily contracted madness, by drunkenness or intoxication, which deprives men of their reason and puts them into a temporary frenzy, our law looks upon this as an aggravation of the offense, rather than an excuse for any criminal behavior. The law, 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." And the law of America and England has not changed since Hale, Coke, Hawkins and Blackstone lived and wrote. (Laws. Insan. 727, 747.) But to this rule, as to all other rules, there are several exceptions, in all four as follows:

1. Where the drunkenness has produced insanity. U. S. v. Drew, ante, p. 16, illustrates this exception.

2. Where by statute a crime is divided into degrees. Pirtle v. State, ante, p. 18, illustrates this exception.

3. Where intent or knowledge is essential to constitute the crime. · A man is charged with larceny-taking goods not his own with the intention of stealing them. Here, if it can be shown that when he took the goods he was so drunk as to be unable to form an intent to steal, he must be acquitted. Wood v. State, 34 Ark. 341. In a case of this kind the court said: "Drunkenness certainly does not excuse or palliate any offenses. But it may produce a state of mind in which the accused would be totally incapable of entertaining or forming the positive and particular intent requisite to make out the offense. In such a case, the accused is entitled to an acquittal of the felony, not because of his drunkenness, but because he was in a state of mind resulting from drunkenness, which affords a negation of one of the facts necessary to his conviction. If, at the time of taking property a person is so under the influence of intoxicating liquor that he is unable to form a felonious intent, he cannot be guilty of larceny." Mr. Bell, of Des Moines, Iowa, helped to settle the law on this point. On

New Year's eve he determined to see the old year out and the new year in. He took too many smiles, however, for when the bells "rang out to the wild sky," this one Bell was asleep in another man's house, into which he had walked. Going into other people's houses at midnight is against the law, and at the end of Mr. Bell's little spree he found himself charged with burglary. But the court said that as he blundered into the house through drunkenness, without knowing where he was and with no intent to steal or commit any crime there, he could not be found guilty. State v. Bell, 29 Iowa, 316; Laws. Insan., 682.

4. Where the intoxication is involuntary.-A man by fraud or force makes B. drunk. B. is not responsible for his acts committed under its influence. And so, if C., by the advice of a physician or intending to benefit his health or alleviate some pain, should drink more than he intended.

It was against the law in Indiana, in the year 1839, for any one to sell liquor to an intoxicated person. Mr. Hipp kept a hotel, and one day his bar-keeper sold half a pint of whiskey to a man in exactly the condition which the statute described. For this Mr. Hipp was indicted. But he was not convicted. "The landlord," said the court, "was not liable to an indictment for the act of his bar-keeper. If the defendant had commanded the offense to be committed, or had been present when it was committed, without making any objection to it, the act would have been his own and the indictment could have been sustained."

The rule in civil cases is that the master is liable for the acts of his servant whenever he is acting in the course of his employment. But to make the master liable criminally something more is needed he must either participate actually in the act of the agent or he must so far assent to it as to be morally guilty.

The cases in this connection are of three kinds:
:-

1. Where the agent acts by the command of the principal. In this case there never was or is any doubt but that the principal is guilty.

2. Where the agent is acting within the scope of his general authority. Thus, a man who keeps a grocery store has a clerk in his shop, who