Drunkenness is not a defense to a charge of murder in the second degree,14 except where a specific intent to kill is an essential element of that offense.15 Nor is it a defense to a charge of manslaughter.16

Fears due to intoxication cannot constitute apparent danger so as to support a plea of self-defense.17

Whether intoxication will reduce homicide to manslaughter or assault. According to some courts drunkenness will

not reduce a homicide from murder to manslaughter.18 So where

murder is divided into two or more degrees, it has frequently been held that drunkenness will not reduce a homicide below murder in the second degree, 19 and that it is not a legitimate subject of inquiry as between murder in the second degree and manslaughter,20 and also that it cannot be considered in determining whether the defendant was guilty of murder in the second degree, assault to murder, or aggravated assault.21

Other courts hold that drunkenness may be shown to reduce a homicide from murder to manslaughter, and will have that effect if it was of such a character as to render the accused incapable of forming a specific intent to kill, or to negative the existence of malice.22 This has been held to be true, for example, in states where there are no degrees of murder, and a premeditated design to kill is an essential element of that offense and its absence reduces the homicide to manslaughter, 23 or where an intention to cause death

80, 81 N. E. 36; Upstone v. People, 109 Ill. 169; Rafferty v. People, 66 Ill. 118.

Oregon. State v. Morris, 83 Ore. 429, 163 Pac. 567; State v. Trapp, 56 Ore. 588, 109 Pac. 1094; State V. Weaver, 35 Ore. 415, 58 Pac. 109.

Texas. This was true when the statute divided murder into two degrees. Harris v. State, 74 Tex. Cr. 652, 169 S. W. 657; Lyles v. State, 64 Tex. Cr. 621, 142 S. W. 592. And it is equally true since the degrees of murder have been abolished. Harris v. State, 74 Tex. Cr. 652, 169 S. W. 657; Truett v. State, 74 Tex. Cr. 284, 168 S. W. 523.

Wyoming. Gustavenson v. State, 10 Wyo. 300, 68 Pac. 1006.

19 Hall v. State, 78 Fla. 420, 83 So. 513; Thomas v. State, 47 Fla. 99, 36 So. 161; Aszman v. State, 123 Ind. 347, 24 N. E. 123, 8 L. R. A. 33; Atkins v. State, 119 Tenn. 458, 105 S. W. 353, 13 L. R. A. (N. S.) 1031. And see § 135, supra.

309, 144 N. W. 47, 147 N. W. 739.
New Jersey. Wilson v. State, 60
N. J. L. 171, 37 Atl. 954, 38 Atl. 428.
New Mexico. State v. Cooley, 19
N. M. 91, 140 Pac. 1111, 52 L. R. A.
(N. S.) 230.
Tennessee.
Humph. 663.
West Virginia. State v. Robinson,
20 W. Va. 713, 43 Am. Rep. 799.

Pirtle V. State, 9

21 Lyles v. State, 64 Tex. Cr. 621, 142 S. W. 592; Hernandez v. State, 32 Tex. Cr. 271, 22 S. W. 972.

22 See Tucker v. United States, 151 U. S. 164, 38 L. Ed. 112, 14 Sup. Ct. 299; United States v. King, 34 Fed. 302; Springfield v. State, 96 Ala. 81, 11 So. 250; Cleveland v. State, 86 Ala. 1, 5 So. 426; Morrison v. State, 84 Ala. 405, 4 So. 402; Williams v. State, 81 Ala. 1, 1 So. 179, 60 Am. Rep. 133; Longley v. Com., 99 Va. 807, 37 S. E. 339.

Compare Willis v. Com., 32 Gratt. (Va.) 929.

As to the degree of drunkenness necessary, see § 133, supra.

23 Buckhannon v. Com., 86 Ky. 110, 5 S. W. 358; Shannahan v. Com., 8 Bush (71 Ky.) 463, 8 Am. Rep. 465;

is an essential element of the offense of murder in the second degree.24

The fact that the slayer was intoxicated cannot be taken into consideration in determining the question of adequate provocation or cooling time, and a provocation which would not reduce a homicide by a sober man from murder to manslaughter will not so reduce a homicide by a drunken man.2 25 But, as a rule, if the homicide was committed after such provocation as the law deems adequate to re

duce a killing under the influence of passion and heat of blood. caused thereby to manslaughter, evidence that the accused was drunk at the time may be admitted and considered in determining whether the killing was in the heat of blood caused by the provocation, or whether it was with malice.26

§ 137. Involuntary drunkenness. The rule that drunkenness is no defense does not apply in the case of involuntary drunkenness,27 as where a man becomes intoxicated by liquor which has been prescribed by a physician,28 or which he has been compelled to drink against his will,29 or where he is made drunk by the stratagem or fraud of another.30 Drunkenness is not to be regarded as involuntary, within this exception, however, merely because it is the result of an inordinate and irresistible appetite for drink, overcoming the will and amounting to a disease,81 nor because the liquor was fur

26 People v. Rogers, 18 N. Y. 9, 72 Am. Dec. 484; Rex v. Thomas, 7 C..& P. 817; Marshall's case, 1 Lewin C. C. 76. See also State v. Johnson, 41 Conn. 584, 40 Conn. 136; Malone v. State, 49 Ga. 210; Rafferty v. People, 66 Ill. 118; McIntyre v. People, 38 Ill. 514; Shannahan v. Com., 8 Bush (Ky.) 463, 8 Am. Rep. 465; Pearson's Case, 2 Lewin C. C. 144.

27 Com. v. Gilbert, 165 Mass. 45, 42 N. E. 336.

281 Hale P. C. 32. And see People v. Robinson, 2 Park. Cr. (N. Y.) 235.

29 This is the rule by statute in Illinois. Bartholomew v. People, 104

Ill. 601.

30 See People v. Robinson, 2 Park. Cr. (N. Y.) 235; Pearson's Case, 2 Lewin C. C. 144.

As where he has been drugged or has had liquor poured down. his throat without his knowledge. Com. v. Gilbert, 165 Mass. 45, 42 N. E. 336.

Or where he, by fraud, deception or artifice is misled or imposed upon, and is induced to freely imbibe a medicinal alcoholic preparation, without knowing its properties or narcotic ingredients, and, as a result, becomes

intoxicated. Choate v. State, Okla. Cr., 197 Pac. 1060.

In Georgia the statute makes drunkenness an excuse where it is occasioned by the fraud, artifice, or contrivance of another person or persons for the purpose of having a crime perpetrated. McCook v. State, 91 Ga. 740, 17 S. E. 1019. This provision does not apply to a case where a person already drunk is procured by another to commit a crime, or where one or more persons give liquor to another in a social way with no view or purpose at the time to induce him to commit a crime, and after he becomes drunk induce him to commit a crime. In such case drunkenness is no excuse. McCook v. State, 91 Ga. 740, 17 S. E. 1019.

Statutes in Colorado and Illinois provide that drunkenness shall not be an excuse for crime unless it is occasioned by the fraud, contrivance or force of some other person, for the purpose of causing the perpetration of an offense. Seiwald v. People, 66 Colo. 332, 182 Pac. 20; Bartholomew v. People, 104 Ill. 601.

31 Choice v. State, 31 Ga. 424; State v. Haab, 105 La. 230, 29 So. 725;

nished to the defendant by or at the solicitation of the person against whom the crime was committed,32 or by a third person, 0.33 where he drank it voluntarily. Nor is there any exemption from responsibility merely because a man, by reason of previous injury. to his head or brain, or other constitutional infirmity, is more liable to be maddened by liquor than another man.34 It has been said that intoxication is never involuntary where the person intoxicated knows what he is drinking and drinks it voluntarily and without being made to do so by force or coercion.35

There are holdings to the effect that involuntary intoxication does. not excuse crime, but may only be considered on the question of intent.36 And of course the mere fact that one is slightly under the influence of liquor is no excuse for crime, even though the liquor is taken involuntarily, if its effect was not to stupify him or to cause him to lose control of his faculties to any considerable extent.87

§ 138. Use of drugs. According to the weight of authority intoxication or mere temporary insanity from the voluntary excessive use of drugs, such as opium, cocaine or morphine, taken to gratify the appetite and not as a medicine, is considered in law the same as intoxication from the voluntary use of liquors, and is no excuse for crime.38 In Texas, however, it is held that the rule is not the same, and that a person who is temporarily insane by reason of the recent and immoderate use of morphine and cocaine, even in con

90 S. E. 785; Perryman v. State, 12 Okla. Cr. 500, 159 Pac. 937, where this rule was laid down, but the intoxication was held to be voluntary.

37 Com. v. Gilbert, 165 Mass. 45, 42 N. E. 336; Choate v. State, Okla. Cr. 197 Pac. 1060.

38 Georgia. Strickland v. State, 137 Ga. 115, 72 S. E. 922.

Illinois. People v. Penman, 271 Ill. 82, 110 N. E. 894.

Missouri. State v. Morris, 263 Mo. 339, 172 S. W. 603.

North Carolina. State v. English, 164 N. C. 497, 80 S. E. 72.

Pennsylvania. Com. v. Detweiler, 229 Pa. 304, 78 Atl. 271.