The opinion of the court was delivered by
Van Syckel, J.The grounds relied upon for the reversal of the judgment in this ease are:
First. The refusal of the trial court to sustain challenges to jurors.
Second.. That in the foregoing charge to the jury, the court erred in its instructions in respect to the subject of intoxication of the prisoner at the time he committed the homicide.
The question in relation to the challenge of jurors is presented as follows:
“Juror Peter Cooh, challenged°to the favor, having been duly sworn, .testified as follows:
“ Direct examination by Mr. Quayle.
“ Q. Where do you live ?
“A. Budd’s Lake.
“Q. Have you formed any opinion in this case?
“A. I have.
“Q. What is that opinion?
*181“A. Well, my opinion is lie ought to be hung, according to the papers—what I have seen in the papers.
“Q. Well, do you think that evidence could convince you to the contrary if produced here on the witness-stand ? -
“A. Well, if they have got clean proof of it they might; then I might be convinced.
• “Q, What do you think?
“A. Well, if they have got evidence enough to prove he is not guilty, why, then, of course I will have to go according to the evidence; but in my own mind I possess an opinion, according to the papers, that he ought to be hung.
“Q. And you have already given expression to that, have you? Would it take more than the ordinary amount of evidence, then, to convince you to the contrary?
“A. Well, I don’t know really; it would have to be quite strong evidence to convince me anyway.
“Q. Quite strong?
“A. Yes.
“ Q. Stronger than the ordinary amount of evidence ?
“A. Yes, sir.
“Q. Have you any prejudice on account of his color?
“A. Hot at all.
“Q. Or general appearance ?
“A. Ho shape or manner.
“Q. That’s all.
“ Cross-examination by the prosecutor.
“Q. If the evidence on the part of the state should fail to prove the case against him, as it has been stated from which your impression has been formed, would, you still- feel as you do ? ,
“A. Well, I don’t know really how I could; if the state failed to prove him guilty, I could not fetch out a verdict that he was guilty.
“Q. Then you feel that you could consider the evidence that may be produced here and weigh it, and upon that evidence decide whether he is guilty or not ?
*182“A. Yes, sir.
“Q. And if the state fails to prove the case against him,, you would not then feel that he should be convicted ?
“A. Oh, no; no, I could not.
“ The Court—The challenge is overruled.”
Since the trial of the case of State v. Spencer, it has been t'he accepted law of this state that it is not a ground of principal challenge to a juror that he has expressed an opinion on the matter to be tried, if it was not done through malice or' ill-will.
In that case, reported in 1 Zab. 196, Chief Justice Hornblower says: “A declaration of opinion to disqualify a juror,, therefore, must be such an one as implies malice or ill-will against the prisoner, thereby showing that the person challenged does not stand indifferent between the state and him.”"
This declaration was approved without any qualification-by our Supreme Court, in an opinion delivered by Chief Justice Green, in State v. Fox, 1 Dutcher 566.
This question was again raised in Moschell v. State, 24 Vroom 498, and the rule adopted in the cases above cited was-inflexibly adhered to.
"We are of opinion that the' practice in this respect, which has so long prevailed in our courts, is well founded and wise,, and that no departure from it should be sanctioned.
The juror challenged in this case disclaimed malice or ill-will, and there is nothing in his examination which rendered him subject to a successful challenge, and it was therefore-properly overruled.
The language in the charge of the court, to which exception is taken, is: “ It is an essential ingredient, as I have stated to-you, of the crime of murder in the first degree that there-should be an intent to take life; any intoxication may be considered with reference to the existence of that intent and its willful, deliberate and premeditated character, and I charge you that if, at the time of doing the act, the evidence shows-you that this defendant was so intoxicated that his faculties-*183were prostrated, and he was rendered incapable of forming a specific intent to take life, which I have stated is an essential ingredient of this crime, then, although it is no defence and no justification for crime, his offence may thereby be mitigated to murder in the second degree.”
There is no rule of the English common law more firmly settled than that voluntary intoxication does not excuse or palliate crime.
Lord Coke, Sir Matthew Hale, Sir William Blaekstone and Lord Bacon unite in pronouncing the law of England to be “ that 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.”
The cases of Rex v. Carroll, 7 Car. & P. 145, and Rex v. Meakin, Id. 297, show how rigorously the rule was adhered to. In the former ease, Mr. Justice Park and Mr. Justice Littledale declared that if it were to be considered law, that the fact of a defendant being intoxicated is a proper circumstance to be taken into consideration on the question of premeditation, there would be no safety for human life.
The statement that voluntary drunkenness is no excuse or justification for any crime is too firmly established by a long series of cases, both in England and in this country, to be now a subject of controversy.
The apparent confusion upon the subject, which is introduced by the decisions in some of our states, arises in a measure from an inaccurate statement of the position intended to be assumed by the court.
When the English courts declared that voluntary intoxication was an aggravation of the offence committed, they did not intend to assert that a criminal act committed by a drunken man constituted a higher crime than the same act committed by a sober man. It was an expression used to emphasize the rule that voluntary intoxication did not excuse.
In my examination no case has been found sustaining a contrary view.
*184The true rule, in my judgment, to be deduced from a mass of authorities, is that there is a situation in which the fact of drunkenness is entitled to weight, not as an excuse for crime nor in extenuation of it, but as a fact tending to show that the crime imputed was not committed.
When the character and extent of a crime is made by law to depend upon the state and condition of the defendant’s mind at the time, and with reference to the act done, intoxication, as a circumstance affecting such state and condition of the mind, is a proper subject for inquiry and consideration by the jury. If, by law, deliberation and premeditation are essential elements of the crime, and, by reason of drunkenness or any other cause, it appears that the; prisoner’s mental .state is such that he is incapable of such deliberation and premeditation, then the crime has not been committed; there is a failure on the part of the state to prove the crime into which'premeditation must enter.
Intoxication is a mere circumstance to be considered in •determining whether premeditation was present or absent.
As between the two offences of murder in the second degree and manslaughter, voluntary intoxication cannot be a legitimate subject of inquiry. What constitutes murder in the second degree by a sober man is equally murder in the second degree if committed by a drunken man. People v. Rogers, 18 N. Y. 9; State v. Tatro, 50 Vt. 483; State v. Johnson, 40 Conn. 136; State v. Mowry, 10 Crim. L. Mag. 23, and the numerous cases cited in the notes to that case.
In the Warner case, which was affirmed in this court, the. trial judge charged the jury that if the defendant’s mind, by reason of intoxication, was in such a condition that he could not conceive the purpose of taking life, he was guilty only of murder in the second degree. State v. Warner, 27 Vroom 686.
In State v. Martin the defendant was charged with homicide and tried in the Essex Oyer and Terminer in 1881.
Mr. Justice Depue charged the jury as follows on the subject:
*185“If the evidence is sufficient to satisfy the jury that the intoxication of the accused, at the time of the homicide, was so great as to prostrate his faculties and render him incapable of forming the specific intent to kill, which is the essential ingredient of murder of the first degree, the prisoner will not be entitled to acquittal, but his offence will be murder in the second degree. You should carefully discriminate between that excitable condition of the mind produced by drink, which is not incapable of forming an intent, but determines to act on a slight provocation, and such prostration of the faculties by intoxication as puts the accused in such a state that he is incapable of forming an intention from which he shall act.” 4 N. J. L. J. 339 (1881).
This case was taken by writ of error to the Supreme Court and the judgment there affirmed in November, 1883.
As observed by the learned judge in the Martin ease, this rule should be applied with caution, that no undue or dangerous immunity or license be given to crime by persons whose passions are inflamed by drink.
So long as the mind of the criminal is capable of conceiving the purpose to kill, he must be held to the responsibility of one who is' sober, and that is the language of the cases upon this subject.
In Marshall v. State, 59 Ga. 154, Mr. Justice Blakely said : “ To be too drunk to form the intent to kill, the slayer must be too drunk to form the intent to shoot.”
This utterance was cited with approval in Hanvey v. State, 68 Ga. 614.
If the faculties of the accused are not so far prostrated by intoxication as to render him incapable of forming an intention to kill, the jury would have no right to find that, by reason of the intoxication, the intention to kill was not present.
In the case submitted, the trial judge charged the jury in the language of the court in the Martin ease, and in that respect there w.as no error.
The judgment below should be affirmed.