The burden of proof in its true sense, that is, the duty of establishing one's case, never shifts. The presumption of innocence applies to the defendant, until it is established beyond a reasonable doubt that he not only committed the act, but also committed it with criminal intent.43 The presumption of sanity, which, standing alone, is sufficient to make a prima facie case upon this point, has no effect whatever upon the question of burden of proof in its true sense. It merely takes the place of evidence, nothing more.

The true rule, therefore, as stated by Chief Justice Cooley, is, the prosecution "are at liberty to rest upon the presumption of sanity until proof of the contrary condition is given by the defense. But when any evidence is given which tends to overthrow that presumption, the jury are to examine, weigh, and pass upon it with the understanding that although the initiative in presenting the evidence is taken by the defense, the burden of proof upon this part of the case, as well as upon the other is upon the prosecution to establish the conditions of guilt."44

§ 74. Somnambulism.-Where one in his sleep shoots and kills one who attempts to awake him, and there is no motive or intention to injure, and the accused is not conscious of what he is doing, he is not guilty of murder.45

§ 75. Intoxication.-As a general rule, voluntary drunkenness is no defense to a criminal charge. A person can abstain from drunkenness, and if by drinking he brings upon

State v. Lawrence, 57 Maine 574; State V. Felter, 32 Iowa 49; Guiteau's Case, 10 Fed. 161; Boswell v. Commonwealth, 20 Grat. (Va.) 860; State v. Coleman, 27 La. Ann. 691; State v. Huting, 21 Mo. 464; Clark v. State, 12 Ohio 483, 495, 40 Ann. Dec. 481; Casat v. State, 40 Ark. 511; People v. Garbutt, 17 Mich. 9, 97 Am. Dec. 162.

43 People v. Garbutt, 17 Mich. 9,

97 Am. Dec. 162; State v. Wegener, 180 Ia. 102, 162 N. W. 1040.

44 People v. Garbutt, 17 Mich. 9, 97 Am. Dec. 162. See also Adair v. State, 6 Okla. Crim. 284, 118 Pac. 416, 44 L. R. A. (N. S.) 119, and cases cited in note; Knight v. State, 38 Nebr. 225, 78 N. W. 508, 76 Am. St. 78n.

45 Fain v. Commonwealth, 78 Ky. 183, 39 Am. Rep. 213, Derby's Cases 107.

himself a madness, it is held to be voluntary and he is not excused from crimes committed under the influence of such voluntary madness, if previously sane.46

§ 76. Reasons for rule as to intoxication.-The rule that voluntary drunkenness is no defense to a criminal charge is based upon principle and also policy. Its foundation pillars are justice and necessity. The justice of the rule grows out of the fact that every person owes to society, as to himself, the duty of preserving unclouded the priceless endowment of reason, while the necessity of the rule is owing to the fact that without it, life, liberty and property would be placed in serious jeopardy. There is no injustice in holding a person responsible for his acts committed when voluntarily intoxicated.47

§ 77. Intoxication does not aggravate offense.-According to Lord Coke, voluntary drunkenness aggravates the offense;48 and other writers have sustained this view. From the ethical viewpoint the statement is correct. From the legal viewpoint it is not correct. A wilful murder, deliberately perpetrated with preconceived malice, can not be aggravated by drunkenness; nor is that which would be manslaughter in a sober man aggravated into murder if com

46 Rex v. Meakin, 7 Car. & P. 297; State v. Bobbst, 269 Mo. 214, 190 S. W. 257; Perryman v. State, 12 Okla. Cr. 500, 159 Pac. 937; State v. Cooley, 19 N. Mex. 91, 140 Pac. 1111, 52 L. R. A. (N. S.) 230n; O'Herrin v. State, 14 Ind. 420, Derby's Cases 191.

47 People v. Rogers, 18 N. Y. 9, 72 Am. Dec. 484, Beale's Cases 264. See also Upstone v. People, 109 Ill. 169; Commonwealth v. Malone, 114 Mass. 295; Beasley v. State, 50 Ala. 149, 20 Am. Rep. 292; Flanigan v. People, 86 N. Y.

554, 40 Am. Rep. 556; Warner v. State, 56 N. J. L. 686, 29 Atl. 505, 44 Am. St. 415; Beck v. State, 76 Ga. 452; Goodwin v. State, 96 Ind. 550; State v. Kidwell, 62 W. Va. 466, 59 S. E. 494, 13 L. R. A. (N. S.) 1024; State v. Tatro, 50 Vt. 483, Derby's Cases 191; Harris v. United States, 8 App. D. C. 20, 36 L. R. A. 465 and note containing long list of cases.

48 3 Inst. 46; Beverley's Case, 4 Coke 125a; United States v. Cornell, 2 Mason (U. S.) 91; United States v. Claypool, 14 Fed. 127.

mitted by a drunken man.49 That drunkenness aggravates the offense is not the law either in England or in this country. In some instances, however, it is held to lessen the degree of the offense.50

§ 78. Exceptions to rule as to intoxication.-In some cases voluntary drunkenness may be a complete defense to a criminal charge. If the drunkenness completely negatives the existence of an essential element of the crime it constitutes a defense. Thus, in the case of an aggravated assault, or larceny, or burglary, the drunkenness of the accused may completely negative the existence of the essential element of specific criminal intent, in which case the drunkenness will constitute a complete defense.51 This principle is also applicable to the crimes of bribery,52 perjury,53 forgery,5 and conspiracy, 55 in all of which a specific criminal intent to do the act is an essential element of the crime. It is also applicable to the crime of attempting to commit suicide; not as an excuse for the crime but as a material fact bearing on the question whether the accused intended to take his life.56

49 McIntyre v. People, 38 Ill. 514. 50 Atkins v. State, 118 Tenn. 458, 105 S. W. 353, 13 L. R. A. (N. S.) 1031.

51 State v. Foster, 172 N. Car. 960, 90 S. E. 785; Reg. v. Doody, 6 Cox Cr. C. 463, Beale's Cases 261; Garner v. State, 28 Fla. 113, 9 So. 835, 29 Am. St. 232; Hill v. State, 42 Nebr. 503, 60 N. W. 916; State v. Phillips, 80 W. Va. 747, 93 S. E. 828; Chowning v. State, 91 Ark. 503, 121 S. W. 735, 18 Ann. Cas. 529. See also note 36 L. R. A. 467; State v. Rumble, 81 Kans. 16, 105 Pac. 1, 25 L. R. A. (N. S.) 376. 52 White v. State, 103 Ala. 72, 16 So. 63.

53 Lytle v. State, 31 Ohio St.

196; Lyle v. State, 31 Tex. Cr. 103, 19 S. W. 903.

54 People v. Blake, 65 Cal. 275, 4 Pac. 1.

55 Booher V. State, 156 Ind. 435, 60 N. E. 156, 54 L. R. A. 391.

56 Reg. v. Doody, 6 Cox Cr. C. 463, Beale's Cases 261; United States v. Drew, 5 Mason (U. S.) 28, Fed. Cas. No. 14993. See also State v. Haab, 105 La. 230, 29 So. 725; (where Nicholls, C. J., comments approvingly on Judge Story's view); State v. Driggers, 84 S. Car. 526, 66 S. E. 1042, 19 Ann. Cas. 1166n; State v. O'Neil, 51 Kans. 651, 33 Pac. 287, 24 L. R. A. 555.

57

$79. Effect of delirium tremens.-Delirium tremens is an organic mental disease produced by excessive drinking of intoxicating liquor. Though caused by voluntary drunkenness, which is usually no defense to a criminal charge, delirium tremens may constitute a complete defense, even when the crime charged involves only a general criminal intent.5 This is owing to the fact that the voluntary drunkenness which produces the delirium tremens is the remote, and not the proximate, cause of the crime. The mental aberration, to constitute a defense, must be of a permanent character; and separable from the intoxication which produces it. Mere temporary insanity, which immediately results from voluntary drunkenness, is no defense.57a

The question, whether a person, whose defense to a criminal charge is delirium tremens, was, at the time of the commission of the act, under the influence of a fixed insanity, or under a temporary one induced immediately by intoxication, is a fact for the jury to determine; and their verdict upon this point will not be disturbed by a higher court unless it is clearly against the evidence.58

§ 80. Effect of insanity produced by excessive use of morphine or cocaine.—When a person voluntarily uses morphine or cocaine, not as a medicine, but merely to gratify a passion, or to produce intoxication, his responsibility for crime while under its influence is precisely the same as that of a person who becomes drunk by the excessive use of intoxicating liquors. Ordinarily, temporary insanity produced by the excessive use of either or both of these drugs is no defense to a criminal charge. If the crime charged involves specific criminal intent, and the temporary insanity completely negatives the existence of this intent, the insanity necessarily constitutes a defense. If the temporary insanity is produced by the combined excessive use of cocaine, morphine

57 People v. Goodrum, 31 Cal. App. 430, 160 Pac. 690.

57a Upstone v. People, 109 Ill. 169; State v. Kidwell, 62 W. Va. 466,

59 S. E. 494, 13 L. R. A. (N. S.) 1024; and note to 36 L. R. A. 479.

58 Upstone v. People, 109 Ill. 169.

and intoxicating liquors, the criminal responsibility is the same as where the insanity is produced by the excessive use of the drugs alone.59

§ 81. Drunkenness may negative commission of the act. -When a person is upon trial for the commission of a crime, he may show, if he can, that, at the time the alleged offense was committed he was so drunk that he was physically incapable of committing the crime. "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." "160

§ 82. Murder in first degree committed by intoxicated person-Manslaughter.-In many states, statutes exist which divide murder into degrees. Though voluntary drunkenness is no defense to murder at common law, so far as the element of criminal intent is concerned, it may reduce a homicide from murder in the first degree to murder in the second degree. The statutes usually provide that to constitute murder in the first degree there must exist an actual intent to kill, or deliberation and premeditation. The terms deliberation and premeditation are not synonymous. The former implies "reflection, however brief, upon the act before committing it; fixed and determined purpose as distinguished from sudden impulse;" whereas, the latter implies merely "previous contrivance or formed design," irrespective of any question of sudden impulse.

62

To constitute murder in the first degree, where deliberation and premeditation are essential, the intention must be

59 Edwards v. State, 38 Tex. Cr. 386, 43 S. W. 112, 39 L. R. A. 262. See also Moss v. State, 57 Tex. Cr. 620, 124 S. W. 647, 136 Am. St. 1001.

60 Ingalls v. State, 48 Wis. 647, 4 N. W. 785.

61 Cent. Dict. & Cyc. "Deliberation."

62 Cent. Dict. & Cyc. "Premeditation."