There being a difference in opinion on the questions arising upon the motion in error, none of those questions are now decided, but we confine our attention to the motion for a new trial.
We think the charge of the court upon the subject of insanity was unexceptionable. It fully complied with the requests of the prisoner’s counsel, so far as those requests were according to law. The language of the court differs, and very properly differs, from the language of the requests ; but the law of the charge is correct, and all that the prisoner was entitled to.
We are also of the opinion that the court was not bound to charge as requested upon the subject of intoxication. If the prisoner was in fact intoxicated at the time of the homicide, that does not, as matter of law, reduce the offense to manslaughter; much less does it justify the prisoner. Nor does it in point of law reduce it to murder in the second degree.. There was no error therefore in refusing to charge, according to those requests.
The court charged the jury that “ drunkenness does not excuse a party from the consequences of a criminal act; one crime cannot justify another. A man committing a criminal act, though intoxicated at the time, is a legal and proper subject of punishment.”
This too, as a general proposition, is correct. If that was the only question involved in the case, it would be entirely free from difficulty. But thé real question is, whether drunkenness, as a fact, may be considered by the jury as evidence tending to disprove an essential fact in the case, a deliberate intention to-take life.
We have entertained some doubts whether this question was made in the court below, and so presented here as that *143we can properly consider it. In tlie first place, it does not very clearly appear that the intoxication proved or claimed was of such a degree as to impair the capacity of the prisoner to form a deliberate premeditated purpose to take life. In the next place, it does not appear that the prisoner's coun sel asked the court to say to the jury that the intoxication was evidence tending to prove that the killing was not premeditated, and that he could only he convicted of murder in the second degree; hut the claim was in substance, that intoxication, as matter of law, reduced the offense to manslaughter.
In a case of less importance these considerations might have some weight and induce us to hesitate to grant a new trial; but in a capital case we are not disposed to enforce the rules, however salutary those rules may be in their general application, so rigidly as-to hold the prisoner to the consequences of a mistaken view of the law by his counsel; especially when tlie course taken on the trial was such as practically to exclude from the minds of the jury a fact material to he considered In determining, not whether a crime was committed, hut the measure of guilt.
The prisoner was indicted and on trial for murder in the first degree. As the homicide was not perpetrated by means of poison, or lying in wait, or in committing or attempting to commit any of the crimes enumerated in the statute, he could only be convicted of the higher offense by showing that it was a willful, deliberate and premeditated killing. A deliberate intent to take life is an essential element of that offense. The existence of such an intent must he shown as a fact. Implied malice is sufficient at common law to make the offense murder, and under our statute to make it murder in the second degree; hut to constitute murder in the first degree, actual malice must bo proved. Upon this question the state of the prisoner’s mind is material. In behalf of the defense, insanity, intoxication, or any other fact which tends to prove that the prisoner was incapable of deliberation, was competent evidence for the jury to weigh. Intoxication is admissible in such cases, not as an excuse for *144crime, not in mitigation of punishment, hut as tending to show that the less and not the greater offense was in fact committed. I cite a few only of the many ‘authorities which sustain this position. Keenan v. The Commonwealth, 44 Penn. S. R., 55; Roberts v. The People, 19 Mich., 401; Pigman v. The State, 14 Ohio, 555; State v. Garvey, 11 Minn., 154; Haile v. The State, 11 Humph., 154; Shannahan v. The Commonwealth, 8 Bush, (Ky.,) 463; Ray’s Med. Jur., 5th ed., 566.
As I have already said, the charge of the court was in itself well enough; but we must consider it in its application to the case on trial, and in the sense in which, the jury probably understood it. When they were told that “ drunkenness does not excuse a party from the consequences of a criminal act,” it is probable that they did not distinguish between excusing a crime, and showing that the specific crime charged had not been committed; and when they were further told that “ a man committing a criminal act, though intoxicated at the time, is a legal and proper subject of punishment,” they undoubtedly understood the “ criminal act ” to mean murder in the first degree, and punishment to mean capital punishment, and that the intoxication of the prisoner, whether little or much, could legally have no bearing upon the question whether it was murder in the first or second degree. The danger is that the jury, while making up their verdict, excluded from their minds the subject of intoxication altogether ; and that they were led to believe that the malice implied by law from the weapon used, and the circum > stances attending the offense, was sufficient to constitute murder in the first degree, and that a deliberate premeditated design to take life was not essential. If so, it is manifest that injustice may have been done the prisoner. I think the court should have submitted to the consideration of the jury the fact of intoxication, if it was a fact, to be weighed by them in connection with the other evidence in the cause, in determining whether it was a willful, deliberate and premeditated killing.
*145For these reasons a majority of the court are of the opinion that a new trial should be advised.
In this opinion Park, J., concurred. Seymour, J., dissented. Foster, J., having tried the case below, did not sit.