The opinion of the court was delivered by
Redfield, J.The respondent was indicted for murder in the killing of Alice Butler, and convicted of murder in the first degree, at the April Term of Franklin County Court, 1877.
I. The juror Willard was challenged for cause. He admitted that from what he had seen and heard, he had formed an opinion as to the matter to be tried, but was not aware of any prejudice against the respondent, and had no recollection of having expressed an opinion in the premises. This was not a legal cause for challenge. State v. Phair, 48 Vt. 366. However important, in a trial involving the life of the accused, it is to have a fair and unprejudiced jury, the matter is largely within the discretion of the court trying the case. This court, sitting as a court of error, can only say that the facts stated in the exceptions do not, as a matter of law, disqualify the juror for sitting in the cause.
II. We think the narrative by Park Davis of what the respondent told him by way of confession, was properly excluded. The court allowed Davis to state the condition of the respondent’s *490mind — whether sane or insane — from his appearance, and from what he said and did. But the respondent cannot make substantive evidence in his own favor, by proving his own declarations out of court; nor, under color and claim that his story would afford ground for argument that he was insane. 3 Greenl. Ev. 148.
III. The confessions of the respondent were admitted without objection ; and no question as to the admissibility of the evidence is now before the court. The respondent claims that the confessions were procured by the solitary confinement, and the promises by the jailor that he could go below with the other prisoners. This was the promise of a temporary and collateral boon, and not a hope or favor held out in respect to the criminal charge, and it has been held that the holding out of such favor does not exclude the testimony. 1 Greenl. Ev. 229 ; Rex v. Green, 4 C. & P. 393, 655; State v. Wentworth, 37 N. H. 218. The testimony being in the case, we think the caution of the court in regard to the weight to be given to it, was very considerate and favorable to the respondent.
IV. The more important question arises upon the charge of the court upon the effect of intoxication upon the grade of the offence. The court charged the jury that voluntary intoxication could neither excuse nor mitigate the offence. There is, perhaps, no principle or maxim of the common law of England more uniformly adhered to than that voluntary drunkenness does not excuse or palliate crime. Lord Coke, in his Institutes, declares that “ whatever hurt or ill he doeth, his drunkenness doth aggravate it.” 3 Thomas’s Coke Lit. 46. And in his reports, Beverley’s Case, 4 Coke, 123b, 125a, he says: “ Although he that is drunk is for the time non compos mentis, yet his drunkenness does not extenuate his act, or offence, nor turn to his avail.” And Sir Matthew Hale, eminent alike for his humanity and learning, says of drunkenness, which he calls dementia affectata, “ This vice doth deprive men of the use of reason, and puts many men in a perfect but temporary frenzy ; * * but by the laws of Eng*491land, such a person shall have no privileges by his voluntary contracted madness, but shall have the same judgment as if he were in his right senses.” And Lord Bacon, in his “ Maxims of the Law,” (Rule 5), in that comprehensive language which clearly defines and gives the reasons for the rule of law, thus asserts the doctrine : “ If a madman commit a felony, he shall not lose his life for it, because his infirmity came by act of God ; but if a drunken man commit a felony, he shall not be excused, because the imperfection came by his own default.” In Burrow’s case, Lewin, 75, A. D. 1823, Holroyd, J., thus defines the rule: “ It is a maxim in the law that if a man gets himself intoxicated he is answerable to the consequences, and is not excusable on 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.” And the cases of Rex v. Gridley and Rex v. Menkin, 7 C. & P. 297, show the uniformity of this rule in the courts of England. In the case of The People v. Boyers, 18 N. Y., the Supreme Court had reversed the conviction of Rogers on the ground that the court had excluded the evidence of the respondent’s drunkenness, as affecting the criminal intent. But the case was, by writ of error, carried to the Court of Appeals, and the whole law upon that subject was reviewed and canvassed with great learning and ability by Chief Justice Denio and Harris, J. Harris, J., says: “ The Supreme Court seem to have understood that in all cases where without it the law would impute to the act a criminal intent, drunkenness may be available to disprove such intent. I am not aware that such a doctrine has before been asserted. It is certainly not sound. The adjudications upon the subject, both in England and this country, are' numerous and characterized by a singular uniformity of language and doctrine. They all agree that where the act of killing is unequivocal and unprovoked, the fact that it was committed while the perpetrator was intoxicated cannot be allowed to affect the legal character of the crime.” But it is insisted that under the statute which makes “degrees” of murder, drunkenness qualifies and mitigates the higher offence. The statute declares that “ all murder which shall be perpetrated by means of poison, or by lying in wait, or any other kind of de*492liberate and premeditated killing, * * shall be deemed murder in the first degree.” The same or similar statute has been enacted in most of the States. And many courts have allowed drunkenness to be shown in mitigation of the higher offence. In the case of State v. Jackson,40 Conn. 136, the court held that intoxication, as tending to show that’the prisoner was incapable of deliberation, might be given in evidence. Chief Justice Seymour dissented, and Foster, J., who tried the case below, did not sit, so that the four judges constituting the court were, in fact, equally divided. The same case came before that court again in 41 Conn. 584, and the opinion was delivered by the same judge. The court were hard pressed with the former opinion in the same case, and that it had taken a departure from the common law. But the court repelled the intimation, and declared that “we have enunciated no such doctrine,” but “ held on a trial for murder in first degree, which under our statute requires actual express malice, the jury might and should take into consideration the fact of intoxication, as tending to show that such malice did not exist.” And, in the same opinion, the judge says: “ Malice may be implied from the circumstances of the homicide. If a drunken man take the life of another, unaccompanied with circumstances of provocation or justification, the jury will be warranted in finding the existence of malice, though no express malice is proved. Intoxication, which is itself a crime against society, combines with the act of killing, and the evil intent to take life which necessarily accompanies it, and all together afford sufficient grounds for implying malice. Intoxication, therefore, so far from disproving malice, is itself a circumstance from which malice may be implied. We wish, therefore, to reiterate the doctrine emphatically, that drunkenness is no excuse for crime; and we trust it will be a long time before the contrary doctrine, which will be so convenient to criminals and evil-disposed persons, will receive the sanction of this court.” This reasoning seems to us both illogical and incongruous. To constitute murder of the first degree, the act must, indeed, be done with malice forethought. And that malice must be actual, not constructive. At common law, if the accused shoot his neighbor’s fowls, and by accident kill the owner, he is guilty *493of murder, yet he did uot intend to murder but to steal. Such cases are excluded by the statute from the definition of murder in the first degree. But “ where the act is committed deliberately, with a deadly weapon, and is likely to be attended with dangerous consequences, the malice requisite to murder will be presumed ; for the law infers that the natural and probable effect of any act deliberately done was intended by its actor.” 2 Am. Crim. Law. 944. “ And intent for an instant before the blow, is sufficient to constitute malice.” Ib. 948. It will be admitted that if the respondent had killed his victim “ by poison, or lying in wait,” the act would have been murder in the first degree, and the fact that he was intoxicated could not have been admitted to excuse or palliate the crime. Yet it is claimed that if the circumstances show that the murder was deliberately planned, and executed with fiendish barbarity and malice, drunkenness may come in to palliate the crime.
This, we think, is making a distinction without a difference. Chief Justice Hornblower, 1 Am. Crim. Law, s. 1103, speaking of the New Jersey statute, which is like ours, says: “ This statute, in my opinion, does not alter the law of murder in the least respect. What was murder before its passage is murder now — what is murder now was murder before that statute was passed. It has only changed the punishment of the murderer in certain cases: or rather, it prescribes that, in certain specified modes of committing murder, the punishment shall be death, and in all other Jcinds of murder the convict shall be punished by imprisonment.”
The evidence, so far as detailed in this case, if believed, shows a murder most fiendish and shocking. He destroyed the last resisting vitality of this woman, struggling for her life, with an axe, which shows malice and malignity of purpose. The language of Chief Justice McKay, while discussing a like statute in Pennsylvania, and in a case quite similar to this, is fitting and sensible. He says : “It has been objected that the amendment of our penal code renders premeditation an indisputable ingredient to constitute murder in the first degree. But still it must be allowed that the intention remains, as much as ever, the true criterion of crime, in law as well as in ethics ; and the intention of the party can *494only be collected from his words and actions. * * But let it be supposed that a man without uttering a word should strike another on the head with an axe, it must on every principle by which we can judge of human actions, be deemed a premeditated violence.” The statute has in no degree altered the common-law definition of murder. But the killing a human being by poison, or lying in wait, or by purposely using a deadly weapon to that-end, is murder in the first degree; and the purpose and intent to kill must be determined by the circumstances that surround each case ; for the murderer takes with him no witnesses, and does not often avow his purpose.
Where the requisite proof is adduced to show a wicked, intentional murder, he is not permitted to show a voluntary and temporary intoxication in extenuation of his crime.
The respondent takes nothing by his exceptions.