135 Va. 524 | Va. | 1923
delivered the opinion of the court.
The indictment in this case charged that the defendant, Albert Johnson, “unlawfully, feloniously and maliciously” shot and wounded one A. C. Holt with the intent to “unlawfully, feloniously and maliciously maim, disfigure, disable and kill” him. The verdict of the jury upon which the court entered the judgment here complained of was as follows: “We, the jury, find the prisoner guilty, and fix his punishment at three years in the penitentiary.”
At the time of the alleged offense the defendant, was more or less under the influence of liquor, which he claimed to have taken to relieve a toothache. He had been reported to police headquarters for “shooting up Clay street,” in Richmond, and for that reason two.
“If the jury believe from the evidence that at the time of the alleged shooting Albert Johnson was in such an intoxicated state that he did not know right from wrong, or if he knew, had not the power to control or restrain his action,' they will find him not guilty, though such insanity or irresponsibility was the result of intoxication.”
After refusing the foregoing instruction, the court gave the following substitute therefor:
“The court instructs the jury that drunkenness is no excuse for crime, although such drunkenness may have produced temporary insanity during the existence of which the criminal act was committed. In other words a person cannot voluntarily make himself so drunk as to become on that account irresponsible for his conduct during such drunkenness. He may be perfectly unconscious of what he does and yet be responsible. He may be incapable of express malice; but the law imputes malice in such a ease from the nature of the instrument used, the absence of provocation and other circumstances under which the act was done.”
The action of the court in refusing the former instruction, and in giving the latter, constitutes the first ground upon which we are asked to reverse the judgment, and gives rise to the only debatable question, and the only important question, in the case.
The evidence was in conflict as to the extent to which the defendant was intoxicated. . Some of the testimony
The indictment embraced a charge of malicious shooting with intent to kill. The verdict, hereinafter more specifically dealt with, fixed a punishment which might lawfully have been prescribed for either amalicious shooting with the intent aforesaid, or merely an unlawful shooting; but we must assume that the defendant has been convicted of the larger offense. See Lee’s Case, post p. 572, 115 S. E. 671, decided to-day.
Whether a prisoner on trial for malicious shooting with intent to kill is guilty of that charge depends upon whether if death had resulted he would have been
The specific objection urged against the instruction given by the court in the instant case is that it told the jury in effect that if the defendant shot Holt without provocation, he was guilty of malicious shooting with the intent to kill. This contention necessarily raises the question whether, if the defendant had killed Holt, he would have been guilty of murder in at least the second degree. The answer clearly is in the affirmative. There was no pretense of provocation, and the defendant used a deadly weapon. In Boswell’s Case, supra, this court unreservedly and unequivocally approved the following holding of the Supreme Court of Tennessee in Pirtle v. State, 9 Humph. (Tenn.) 663: “As between the two offenses of murder in the second degree and manslaughter, the drunkenness of the offender can form no legitimate matter of inquiry; the killing being voluntary, the offense is necessarily murder in the second degree, unless the provocation were of such a character as would at common law constitute it manslaughter, and for which latter offense a drunken man is equally responsible as a sober man.”
Precisely the same thing was held in Willis’ Case, supra, wherein this court approved the following instruction given by the trial judge upon his own motion:
“Voluntary drunkenness does not excuse crime. Every crime committed by one in a state of intoxication, however great, is punished just as if he were sober. Drunkenness, therefore, can never be relied on as an excuse for murder. It matters not how drunk one is, if he purposely slay another, without other excuse, palliation
In the course of the opinion in the Willis Case, Judge Anderson, speaking with the unanimous concurrence of Judges Moncure, Christian, Staples and Burks, said: “Voluntary immediate drunkenness is not admissible to disprove malice or reduce the offense to manslaughter. But where, by reason of it, there is wanting that deliberation and premeditation which are necessary to elevate the offense to murder in the first degree, it is properly ranked as murder in the second degree; as ■ the courts have repeatedly decided.” Citing Jones' Case, 1 Leigh (28 Va.) 598; Pirtle v. State, 9 Humph. (Tenn.) 663; Swan v. State, 4 Humph. (Tenn.) 136; Boswell's Case, 20 Gratt. (61 Va.) 860.
By one of the instructions given in Hite's Case, 96 Va. 489, 31 S. E. 895, and by one given in Longley’s Case,
It is manifest, therefore, that, as already stated, the only question as to the instructions here is whether the trial court erred in treating the case as one involving voluntary drunkenness. We have no difficulty or hesitancy in sustaining the action of the court upon this point. For purposes of convenience and clarity we have deferred until we reached this stage of the discussion any specific statement of the facts material to this particular question.
The defendant was sober on the morning of the shooting. He was suffering from toothache. His material testimony on this point is as follows:
“A. At the beginning of it I had the toothache and I called up the dentist and asked him if he could pull it. He said he could pull it at one o’clock. I got up and went to Dr. Pettus’ house. He said he was lying down taking it easy and could not pull it before two o’clock.
“Q. You went to Dr. Pettus in the morning?
“A. Yes. He said he would pull it at two o’clock. I went to Dr. Calling’s office. The boy said'he would be*533 there in an hour. It looked like twenty-five to me. The tooth was aching so bad I asked if I could get anything to drink and he called and got me some corn whiskey.
“Q. Do you know how much you drank?
“A. About three good swallows.
“Q. Do you know where you went from there?
“A. Just by the time I drank it I didn’t know where I was.”
In the petition containing the assignment of error (no other brief being filed in the case) no reference is made to any distinction between voluntary and involuntary drunkenness, the whole argument being addressed to the contention that (1) “intoxication may and does negative a specific intent,” and (2) “does affect the degree of guilt.” The alleged involuntary feature of the defendant’s intoxication was suggested, however, at the oral argument before us, and while the rules of practice in this court require counsel to specifically state and point out the errors relied upon as ground of-reversal, the question here raised is one of importance, and if the court erred in regard to it, the error vitally affected the merits of the ease. We shall, therefore, consider the question, and shall bring to its consideration the light of what seems to us the reason of the matter and such authorities as we have found upon the subject.
In cases of involuntary drunkenness the law properly recognizes an exception to the general rule above discussed. The instances in which the exception is allowed, however, are rare, and it is only recognized under strict limitations.
In Davis’ Crim. Law 29, it is said: “If, however, a person by the unskillfulness of his physician, or. by the contrivance of his enemies, eat or drink anything which causes frenzy or madness, he is entitled to the same
Mr. Minor in Ms Synopsis of Criminal Law, at page ■8, citing 1 Russ. Cr. 8, says: “Involuntary drunkenness, brought about by the contrivance of enemies or by casualty, exempts from punishment, if it unsettles the reason.”
In 16 Corpus Juris 109, it is said, that the general rule “does not apply where one involuntarily becomes drunk by being compelled to drink against his will, or through another’s fraud or stratagem, or by taking liquor prescribed by a physician.”
In 1 Bishop Crim. Law (4th ed.), section 489, the author says: “Yet, ‘if a party be made drunk by stratagem, or the fraud of another, or the unsMllfulness of Ms physician,’ he is not responsible.” To the same effect is 17 Am. & Eng. Ency. L. (2d ed.), p. 414. See also 1 Hale P. C., p. 32; People v. Robinson, 2 Parker Cr. Rep. (N. Y.) 235, 304; Bartholomew v. People, 104 Ill. 601, 605-6, 44 Am. Rep. 97. In the last named case, the decision was controlled by a statute of the State of Illinois, but the defense of involuntary intoxication allowed to be set up in that case would undoubtedly have been allowed under the common-law exception recogMzed in the other authorities which we have cited on this point, since the statute referred to was written stricter than the common law in this respect.
In none of the authorities quoted or referred to above do we find anything to warrant the contention that the drunkenness of the defendant in this case entitled him to claim the benefit of the exception to the general rule. His toothache could well be regarded as a “casualty,” but not so as to his drunkenness. He procured the wMskey contrary to law and drank it contrary to law, and did both of his own volition and with
The law has always jealously guarded the effect of drunkenness as a defense in criminal cases, and even with all the restrictions surrounding it, the doctrine is a dangerous one and liable to be abused. We are not willing to render it more so by holding that an accused person can bring himself within the exception applicable in cases of involuntary intoxication by simply claiming that he drank intoxicants because he was suffering from pain or illness. This is exactly where our decision would logically lead if we should hold that the defendant in this ease was not voluntarily intoxicated. It is to.o
The remaining assignment of error calls in question the action of the court in refusing to set aside the • verdict because, as alleged, “it did not find whether the accused was guilty of malicious or simply unlawful shooting, nor did it find that the act was done with intent to maim, disfigure, disable or kill,” citing Randall’s Case, 24 Gratt. (65 Va.) 644, and Jones’ Case, 87 Va. 63, 12 S. E. 226. These two cases tend strongly to support the proposition for which- they are cited. They have never been expressly overruled, but have not been looked on with favor, and have been by the subsequent decisions of this court strictly confined in their effect to the particular facts upon which they were based. With
The judgment is affirmed.
Affirmed.