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iners to the effect that the accused is insane. The evidence of such examiners is merely that of experts and its credibility is for the jury. So, also, a judgment which declared the accused insane based upon an examination following his commitment to the state asylum for the insane is not conclusive on the question of his insanity. And while the commitment of the accused to a state asylum may be admissible as tending to prove his insanity, the written reports of the examining physicians, and their certificates upon which the commitment was based, are not competent evidence of his insanity.68 Where the expert has made a physical examination he may be required to describe the facts and symptoms observed, as well as the conversation which he had with the defendant, but he cannot be allowed to narrate what the attendants said." The expert for the state who is appointed, or who is requested by the prosecuting attorney to examine the accused for the purpose of ascertaining his sanity, should conduct himself in a fair and impartial manner during the examination. He need not tell the accused the purpose of the examination but the fact that he does so, asking the accused to be open and free with him, but that he need not tell him anything that would incriminate him, does not exclude the evidence secured by the expert. Such a statement is not a promise on the part of the physician that he will not testify against the accused, and he may testify to any fact ascertained by him or admitted to him, even though he has not warned the accused that his statements made on the examination may be used against him.72 A physician who has examined the accused may, after giving an opinion based on the knowledge thus

68

People v. Willard, 150 Cal. 543, United States, 165 U. 89 Pac. 124.

* Commonwealth v. Gerade, 145 Pa. St. 289, 291, 296, 22 Atl. 464, 27 Am. St. 689; White v. Bailey, 10 Mich. 155; Puryear v. Reese, 6 Coldw. (Tenn.) 21; Commonwealth v. Johnson, 188 Mass. 382, 74 N. E. 939; Cordes v. State (Tex. Cr. App. 1908), 112 S. W. 943.

S. 373, 41 L. ed. 750, 17 Sup. Ct. 360. See post, § 181; Braham v. State, 143 Ala. 28, 38 So. 919; Commonwealth v. Johnson, 188 Mass. 382, 74 N. E. 939. But not that the accused had told the examining physician that he believed himself going crazy. State v. Dunn, 179 Mo. 95, 77 S. W. 848.

E.

71 Heald v. Thing, 45 Me. 392, 396. People v. Hill (N. Y. 1909), 87 N.

72

813.

74

acquired, be asked a hypothetical question upon facts occurring prior to the examination,73 and the fact that the witness fears his opinion in answer to such question may be influenced by the facts' observed by him will not exclude it. The opinion which is expressed by the expert must be positive in form and character. If he cannot or will not give such an opinion his doubts that the accused was sane, or his conjectures that he was insane, must be rejected.75

§ 164. Evidence of voluntary intoxication-When irrelevant.-At common law voluntary intoxication, as distinct from mania a potu, furnishes no excuse, justification or extenuation for a crime. committed under its influence. Intoxication as a mental and

TS People v. Lake, 12 N. Y. 358, 362; State v. Church, 199 Mo. 605, 98 S. W. 16; Commonwealth v. Woelfel, 121 Ky. 48, 88 S. W. 1061, 28 Ky. L. 16; Ince v. State, 77 Ark. 426, 93 S. W. 65.

74

Ky. L. 678; People v. Miller, 114 Cal. 10, 45 Pac. 986; Commonwealth v. Gentry, 5 Pa. Dist. 703; Cribb v. State, 118 Ga. 316, 45 S. E. 396; State v. Brown, 181 Mo. 192, 79 S. W. 1111; State v. Hogan, 117 La. 863, 42 So.

People v. Schuyler, 43 Hun (N. 352; Morris v. Territory (Okla. Cr. Y.) 88.

"Sanchez v. People, 22 N. Y. 147, 154. As a general rule, neither books of established reputation, whether written by physicians or lawyers, nor statistics on the increase of insanity, can be read to the jury. Commonwealth v. Wilson, I Gray (Mass.) 337, 339.

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'4 Bl. Com. 25, 26, 1 Hale P. C. 32; Bacon's Maxims, rule 5; Colee v. State, 75 Ind. 511, 515; Hopt v. People, 104 U. S. 631, 633, 26 L. ed. 873; Goodwin v. State, 96 Ind. 550, 556; State v. Murphy, 118 Mo. 7, 25 S. W. 95; McCook v. State, 91 Ga. 740, 17 S. E. 1019; People v. Rogers, 18 N. Y. 9, 16-23, 72 Am. Dec. 484; People v. Garbutt, 17 Mich. 9, 19, 97 Am. Dec. 162n; Sanders v. State, 94 Ind. 147, 148; Wagner v. State, 116 Ind. 181, 186, 18 N. E. 833; Conly v. Commonwealth, 98 Ky. 125, 32 S. W. 285, 17

App. 1909), 99 Pac. 760, Elliott Ev., § 2729. See, also, as sustaining the text, Cleveland v. State, 86 Ala. 1, 5 So. 426; People v. Blake, 65 Cal. 275, 4 Pac. 1; State v. Mowry, 37 Kan. 369, 15 Pac. 282; State v. O'Neil, 51 Kan. 651, 33 Pac. 287; 24 L. R. A. 555; State v. Lowe, 93 Mo. 547, 5 S. W. 889; State v. Murphy, 118 Mo. 7, 25 S. W. 95; Cline v. State, 43 Ohio St. 332, I N. E. 22; State v. Bundy, 24 S. Car. 439, 58 Am. 262; Garner v. State, 28 Fla. 113, 9 So. 835, 29 Am. St. 232; Springfield v. State, 96 Ala. 81, 11 So. 250, 38 Am. St. 85; McCook v. State, 91 Ga. 740, 17 S. E. 1019; Aszman v. State, 123 Ind. 347. 24 N. E. 123, 8 L. R. A. 33n; Shannahan V. Commonwealth, 8 Bush. (Ky.) 463, 8 Am. 465; Flanigan v People, 86 N. Y. 554, 40 Am. 556n; People v. Leonardin, 143 N. Y. 360, 38 N. E. 372; State v. McDaniel, 115

physical condition may be easily simulated. While if the accused was really intoxicated when he committed the crime, if he has cast aside the restraints of sobriety and voluntarily contracted madness, his drunken condition is not relevant to excuse him. This is true though he may have been in a frenzy from indulgence in drink, for, if he has capacity remaining to appreciate and recognize the moral character of his acts, he is responsible. Hence evidence of mere intoxication voluntarily acquired, and not claimed to involve mental derangement, existing when the crime was committed, is inadmissible where its sole purpose and object are to furnish an excuse for or extenuation of the crime.

§ 165. Insensibility or insanity from indulgence in intoxicants may be shown.-Evidence of intoxication is sometimes relevant, not strictly as a defense, but to show the condition, either mental or physical, of the prisoner. Thus if the bodily powers of the accused were so far subjugated by his indulgence in intoxicating drink, or in stupefying drugs, that, at the time of the crime alleged, he was physically unable to make the motions involved in its commission, his drunkenness may be proved to show he was not and could not have been implicated in the crime." Evidence of intoxication at the time of the offense, or prior thereto, is admissible under a plea of insanity caused by over-indulgence in intoxicating liquors. But the fact of the prisoner's intoxication is mainly relevant to show his mental condition. It is never conclusive. The question of his insanity is for the jury to determine upon all the circumstances. His prior dissipation and actual drunkenness at the date of the crime are merely facts for them to consider in determining whether he was, at the instant of the crime, suffering from such a degree of mental unsoundness as to destroy his capac

N. Car. 807, 20 S. E. 622; Commonwealth v. Cleary, 135 Pa. St. 64, 19 Atl. 1017; 26 W. N. C. 137, 8 L. R. A. 301n; Terrill v. State, 74 Wis. 278, 42 N. W. 243.

77

"If a man by voluntary drunkenness renders himself incapable of walking for a limited time, it is just as competent evidence tending to show that he did not walk during the

time he was so incapable, as though he had been so rendered incapable by paralysis of his limbs from some cause over which he had no control. The cause of the incapacity in such case is immaterial; the material question is, was he in fact incapable of doing the acts charged?" Ingalls v. State, 48 Wis. 647, 651, 4 N. W. 785.

ity to distinguish between right and wrong in that particular case.78 A witness cannot express an opinion as to whether the accused can or cannot control his appetite for intoxicating drink,"

§ 166. Evidence of intoxication as bearing on a specific intent or on premeditation.—Where the existence of a particular specific intent is necessary to constitute a given act a crime, evidence that the accused was intoxicated when he committed the alleged criminal act is relevant to show the accused could not have entertained the 80 intent. This does not mean that drunkenness is an excuse for the commission of crime. If the mental condition of the accused at the time of the alleged criminal act is such that he was incapable of having any intent his act is not a crime at all. And it is always competent to show his excessive intoxication by which the accused was wholly though temporarily deprived of his reason if it was not indulged in to commit the crime and such evidence is for the jury to consider in determining whether there was an intent to commit a crime.s1 So, where one is indicted for assault with intent to rob,82 to commit rape, or to do great bodily harm,$5 evidence that he was very much intoxicated at the date of the assault is relevant to show that he did not entertain the intent

78 People v. Blake, 65 Cal. 275, 4 Pac. 1; Erwin v. State, 10 Tex. App. 700.

79

566.

83

v. State, 130 Ga. 361, 60 S. E. 1005, 8 L. R. A. 33, note.

81 Williams v. State, 81 Ala. 1, 1 So.

Goodwin v. State, 96 Ind. 550, 179, 60 Am. 133; Cleveland v. State,

so State v. Zorn, 22 Ore. 591, 30 Pac. 371; Commonwealth v. Hagenlock, 140 Mass. 125, 3 N. E. 36; Cline v. State, 43 Ohio St. 332, 1 N. E. 22; Reg. v. Moore, 3 C. & K. 319, 16 Jur. 750; People v. Rogers, 18 N. Y. 9, 17, 72 Am. Dec. 484; Wood v. State, 34 Ark. 341, 36 Am. 13; Garner v. State, 28 Fla. 113, 155, 9 So. 835, 29 Am. St. 232; Aszman v. State, 123 Ind. 347, 24 N. E. 123, 8 L. R. A. 33n; People v. Walker, 38 Mich. 156; People v. Odell, I Dak. 197, 46 N. W. 601; Mooney v. State, 33 Ala. 419; Chrisman v. State, 54 Ark. 283, 288, 15 S. W. 889, 26 Am. St. 44; Robinson

86 Ala. 1, 5 So. 426; People v. Williams, 43 Cal. 344; People v. Vincent, 95 Cal. 425; 30 Pac. 581; Chrisman v. State, 54 Ark. 283, 15 S. W. 889, 26 Am. St. 44; People v. Lane, 100 Cal. 379, 34 Pac. 856; People v. Young, 102 Cal. 411, 36 Pac. 770; Schlencker v. State, 9 Neb. 241, I N. W. 857; O'Grady v. State, 36 Neb. 320, 54 N. W. 556; Wilcox v. State, 94 Tenn. 106, 28 S. W. 312; Clore v. State, 26 Tex. App. 624, 10 S. W. 242.

82 Scott v. State, 12 Tex. App. 31, 39; Keeton v. Commonwealth, 92 Ky. 522, 18 S. W. 359, 13 Ky. L. 748.

$3 State v. Garvey, 11 Minn. 154 Contra, Jeffries v. State, 9 Tex. App. 598, 605.

84

87

85

charged. If, from such evidence the jury are convinced the accused was so intoxicated as to be unable to form the specific intent, a conviction of any crime other than simple assault must be reversed. The specific intent to deprive the owner of his property, as well as the taking away, are essential ingredients of larceny. If it can be shown that the accused while carrying away the goods was too drunk to entertain the intent of depriving the owner of his property, he must be acquitted. So, the defendant's intoxication is relevant to disprove the felonious intention which must be present in the act of breaking in and entering to constitute burglary. In all these cases the question of intent is for the jury alone and the intoxication of the accused, however great, is never conclusive but is merely a circumstance for the jury to consider in determining the intent. Evidence of intoxication may be relevant to show the absence of guilty knowledge. Thus, the existence of knowledge of the falsity of the testimony given, when perjury has been committed, or of the spurious character of the notes or money forged in the crime of counterfeiting may both be rebutted by evidence that the mind of the accused was so overcome by drink that he did not possess the guilty knowledge necessary to these crimes.88 But where some act, innocent in itself, as for example, voting more than once at an election, is made criminal by statutes if voluntarily done, or where no specific intent is required by law, evidence of intoxication is irrelevant." Sometimes by statute the existence of a premeditated design to cause death on the part of the accused is essential to constitute a homicide murder in the first degree. In such case drunkenness is relevant and may be considered by the jury to determine the mental condition of the

89