The opinion
The plaintiff in error was indicted and convicted in the Kings county Oyer and Terminer, in July, 1863, of the crime of murder in the first degree, and the conviction was affirmed at the General Term of the Supreme Court. The prisoner has now brought a writ of error to this court. It is now urged on the part of the prisoner that the conviction should be reversed on the ground of error in the Oyer and Terminer, in overruling the challenge by the prisoner to the array. The array was challenged on the grounds that after the regular panel of petit jurors, duly drawn and summoned, *Page 340
had been exhausted, the said court ordered a new panel of petit jurors to be drawn and summoned, forthwith, by the commissioner of jurors of said county, by a notice of at least one day, and who on the next day returned a panel of petit jurors, drawn in the manner directed by law; and thereupon the counsel for the prisoner interposed a challenge to the array, that said jurors had not been drawn according to law, in this: that the drawing of said jurors had not been made pursuant to the provisions of the act of April 17, 1858, and in compliance therewith; that said jurors had not been ordered and drawn pursuant to section 15 of said act; that said jurors had not been summoned by the sheriff of Kings county; that no order to the commissioner of jurors had been given by the judge who was to preside at said Court of Oyer and Terminer previous to the commencement and opening of said court; that there was no power in the court, during its then present term, to order the commissioner to summon jurors for service in that court. The district attorney demurred to said challenge, and the demurrer was sustained and the challenge overruled.
A brief reference to the provisions of the statutes will show that these objections to the array were untenable. Section 5 of Laws of 1853 (ch. 338) declares that the several courts, held in and for the county of Kings, may order a new panel or an additional number of grand or petit jurors to be drawn at any time during the sitting of said courts, and such new panel or additional number of jurors may be so drawn without any previous publication of notice, and the jurors so drawn shall forthwith be summoned by the sheriff, by such notice as the court shall direct, to attend said court at the time specified in said order. This act, in a previous section, directs the county clerk of the county to draw the requisite number of jurors to attend the courts therein.
By an act passed on the 17th of April, 1858 (ch. 322), it was declared by the first section thereof, that the selection and summoning of jurors in the county of Kings, should thereafter be performed by one officer, to be known as commissioner of jurors of said county. It is thus seen that by *Page 341
this latter act, that the duties theretofore performed by the county clerk of that county, in the selection of jurors for the various courts to be held therein, and by the sheriff of said county in summoning of said jurors, were devolved upon, and thereafter were to be performed by the commissioner of jurors of said county, and all the powers theretofore exercised by either of said officers in relation thereto, were thereafter to be discharged by the commissioner of jurors created by said act, except so far as the same were modified thereby.
It was therefore competent for the court during its session to direct an additional number of jurors to be selected and drawn for the then present term thereof, pursuant to the act of June 8, 1853, and to direct that they be summoned by the commissioner of jurors of said county. That was the only officer in said county after the passage of the act of April 17, 1858, authorized to select and draw and summon jurors for the several courts held in said county, whether the same were the regular or usual panels drawn and summoned anterior to and in anticipation of the sitting of the various courts therein, or such new panels or additional number of jurors, as said courts might find necessary, in the due administration of justice, to require and order.
The requests to charge, made by the prisoner's counsel, were properly refused by the court. The law, upon the points suggested, has been settled by adjudication in this court, and no reasons are presented why the doctrine thus enunciated should be reviewed or disturbed. The case of The People v. Rodgers
( 18 N Y, 9 ) was well considered, and the doctrine then declared should be rigidly adhered to. Judge DENIO, in the opinion of the court, declares that all the authorities agree upon the main proposition, namely, that mental aberration, produced by drinking intoxicating liquors, furnishes no immunity for crime.
In Brown's Case (Lew. C.C., 75, A.D. 1823) the prisoner was indicted for a rape, and urged in his defense that he was in liquor. HOLROYD, J., in addressing the jury, said: "It is a maxim in law that if a man gets himself intoxicated he is answerable to the consequences, and is not excusable on *Page 342
account of any crime he may commit when infuriated by liquor, provided he was previously in a fit state of reason to know right from wrong. If, indeed, the infuriated state at which he arrives should continue and become a lasting malady, then he is not answerable." In the Case of Rex v. Carroll (7 Carr. and Payne, 145) the prisoner was tried in 1825 at the Central Criminal Court for murder. It appeared that shortly before the homicide the prisoner was drunk. His counsel, though he admitted that drunkenness could not excuse from the commission of crime, yet submitted that in a charge for murder the material question being whether the act was premeditated or done only with sudden heat and impulse, the fact of the party being intoxicated was a proper circumstance to be taken into consideration, but this was repudiated by PARKE, J., and concurred in by LITTLEDALE, J.
In the Case of Rodgers ( supra ), the prisoner's counsel requested the court to instruct the jury "that if they were satisfied that by reason of intoxication there was no intention or motive to commit the crime of murder, they should convict the defendant of manslaughter only." Such in substance were the requests to charge in the case at bar. The Court of General Sessions refused to charge as requested in Rodgers' Case, and this court held the refusal to be right, and said: "If by this request the counsel for the defendant meant, as the request seems to have been interpreted by the Supreme Court, that the jury should be instructed to take into consideration the intoxication of the defendant in determining the intent with which the homicide was committed, the proposition is not law. It has never yet been held that the crime of murder can be reduced to manslaughter, by showing that the perpetrator was drunk, when the same offense, if committed by a sober man, would be murder." That precise proposition, thus condemned by this court, was embraced in the fourth request of the prisoner's counsel for the judge to charge. It was in these words: "If the jury find the accused was in a state of mind, although caused by the voluntary use of intoxicating liquor, that his judgment was obscured or impaired, so that he was incapable of knowing the degree of *Page 343
violence he was perpetrating, or of properly calculating its effects, they must find for the lesser offense, manslaughter." The court properly refused so to charge, and the previous requests were only modifications of the same general idea, namely, that the state of intoxication might be taken into consideration by the jury, by which the crime of murder could be reduced to manslaughter, if they found the prisoner was under the influence of intoxicating liquors at the time he committed the crime, when the same offense, if committed by him when not intoxicated, would have been murder. In this State the cases of The People v. Hammell and The People v. Robinson ( 2 Park. Cr. 223, 235 ), show the consistency with which the doctrine enunciated has been adhered to in our criminal courts and in the Supreme Court.
Judge DENIO, in his opinion in the Case of Rodgers ( supra ), justly observes that "when a principle of law is found to be well established by a series of authentic precedents, and especially when, as in this case, there is no conflict of authority, it is unnecessary for the judges to vindicate its wisdom or policy. It will, moreover, occur to every mind that such a principle is absolutely essential to the protection of life and property. In the forum of conscience, there is, no doubt, considerable difference between a murder deliberately planned and executed, by a person of unclouded intellect, and the reckless taking of life by one infuriated by intoxication; but human laws are based upon considerations of policy, and look rather to the maintenance of personal security and social order, than to an accurate discrimination as to the moral qualities of individual conduct. But there is in truth no injustice in holding a person responsible for his acts committed in a state of voluntary intoxication. It is a duty which every one owes to his fellow men, and to society, to say nothing of more solemn obligations, to preserve, so far as it lies in his power, the inestimable gift of reason. If it is perverted or destroyed by fixed disease, though brought on by his own vices, the law holds him not accountable; but if by a voluntary act he temporarily casts off the restraints of reason and conscience, no mercy is due him, if he is considered *Page 344
answerable for any injury which in that state he may do to others or to society." The same doctrine was long since enunciated by that eminent judge, Lord MANSFIELD, who said, in the celebrated case of The Chamberlain of London v. Evans, in the House of Lords, Feb. 4, 1767, that "a man shall not be allowed to plead that he was drunk in bar of criminal prosecution, though, perhaps, he was at the time as incapable of the exercise of reason as if he had been insane; because his drunkenness was itself a crime, he shall not be allowed to excuse one crime by another." It is a settled maxim of the law "that a man shall not disable himself." These views appear to my mind to be eminently sound and wise, and receive my entire concurrence. They are decisive of the present case, and the judgment must be affirmed. The day fixed by the judgment for the execution of the sentence having passed, the proceedings must be remitted to the Supreme Court, with directions to that court to transmit the same to the Kings county Oyer and Terminer, with directions to that court to pronounce sentence anew against the prisoner.
All the judges concurring,
Judgment affirmed. *Page 345