(dissenting). The question upon which this court is divided is whether the intoxication that may be considered by the jury upon the degree of murder must be such as rendered the defendant incapable of forming an intention to kill, or whether it may be such as satisfies the jury that, as matter of fact, such an intention did not exist.
The trial judge adopted the former of these views, and charged the jury that the intoxication that might be considered with reference to the existence of premeditation was a condition of the defendant in which “ his faculties were prostrated and he was rendered incapable of forming a specific intent to take life.” This view has been, in almost identical language, embodied in the opinion that speaks for the majority of this court.
I think that the other view is the correct one, and that upon the question of degree the issue was whether, as matter of fact, the defendant had formed a specific intent to take life, and not whether he had proved that he could not have formed it. The burden of proving the defendant’s guilt and the quantum of such proof were in nowise shifted or varied by the introduction of the defendant’s testimony as to his intoxication. The fact of intoxication was merely an added circumstance which, if proved by the weight of evidence, should have been considered by the jury in connection with the question of intent, the burden of proving which beyond a reasonable doubt was on the state.
Such “ a reasonable doubt,” as was said in the case of State v. Warner, 27 Vroom 686, “ might spring out of the drunkenness of the defendant.” And it must be apparent to every mind that there are states and stages of intoxication that would excite the gravest doubts as to the existence of deliberation and a premeditated purpose, and yet would not warrant the conclusion that the formation of such a purpose was beyond the capacity of the individual. To deny this efficacy to the defendant’s testimony was to do him a legal injury. And in this connection it should be borne in mind that intoxication *187is not a defence as insanity is, and hence the doctrine of Graves’ case does not apply.
But apart from this, the effect of the substitution of the mental capability of the defendant for his actual mental state was an injurious shifting of the issue. By its indictment and by its proof the state said to the defendant, “ You formed a specific intent to take human life.” To this the direct and obvious traverse is, “ I did not,” and upon this issue all relevant testimony would be considered. But if the only answer permitted to the defendant were “ I could not,” a totally different issue was presented, and the defendant was denied all benefit from the testimony going to show that “ he did not,” unless he also proved that “ he could not.”
A yet more fundamental injury to the defendant in thus shifting the issue was that it relieved the state from the burden of proving premeditation beyond a reasonable doubt and compelled the defendant in that respect to prove his innocence: beyond all doubt. That this was the practical and logical effect of requiring the defendant to prove that his faculties' were so prostrated that he was incapable of premeditation is clear. Eol’ if, in addition to proving by weight of evidence the fact of his intoxication, he must also, by like proof, satisfy the jury that the state of mind engendered by this fact-was one that rendered him incapable of premeditation, he must establish by preponderance of proof the negative of that which the state was bound to prove beyond a reasonable doubt; and if he thus proved that he could not have formed the specific purpose ascribed to him, it followed beyond all doubt that he did not form it.
Briefly outlined, these are the considerations that constrain me to dissent from the majority of my brethren.
The only case in this court that has been cited gives strong support to the view for which I contend. I refer to Warner v. State, 27 Vroom 686.
In the Warner case, which was affirmed in this court, the-trial judge charged the jury that “if the defendant was mentally capable of conceiving a design to take the life of the-*188woman, and if he did conceive such a design, and if-you- are satisfied that, in pursuance of a design thus conceived, he purposely inflicted the fatal blow, then he was guilty of murder of the first degreee; whereas, if you find that he was incapable, from the condition of his mind, of conceiving -such a purpose, or that in point of fact he had not fully conceived such a purpose, then he is not guilty of murder of the first degree.” See citation made by Mr. Justice Reed in his opinion, 27 Vroom 687. The distinction thus made was carried into the abstract of his opinion by the careful justice who prepared it. See the syllabus, Id. 686. “If an intoxicated person has the capacity to form an intent to take life and conceives such intent, it is no ground for reducing the degree of his crime to murder of the second degree, that he was induced to conceive it or to conceive it more suddenly by reason of his intoxication.” And in the body of the same opinion the general answer to the defendant’s assignments of error is that “the point was clearly presented to the jury that the question was whether there existed a design to take life.”
In the case of Marshall v. State, 59 Ga. 154, it is impossible from the opinion to tell what question was' before the court, or how it arose. The only reference to a record is contained in the judicial declaration, “The record which the counsel has brought to us drips with blood.” Under this sanguinary influence, the law, with respect to intoxication, is thus announced: “ The degree of drunkenness shown by the evidence * * * was not great, but had it been the utmost possible degree consistent with the power of discharging a pistol, the law of the transaction would have been the same.” I am unable to see how the power to discharge a pistol becomes a test of the formation of a specific intent to take human life; but the proposition logically paves the way for the general rule with which the opinion concludes, viz., “ To be too drunk to form the intent to kill, the slayer must be too drunk to form the intent to shoot.” I cannot join with the court that, in Hanvey v. State, 68 Ga. 614, “cited this utterance with approval.”
*189In Martin v. State (New Jersey Supreme Court of November Term, 1883), no opinion is reported or on file, but, inasmuch as error was not assigned upon the charge of the trial court with respect to the effect of intoxication, the propriety of the charge in that respect could not have been judicially considered, and hence was not affirmed.
In the well-considered case of Haile v. Stale, 11 Humph. 154, the precise point is discussed as the psychological question that it is, and the judgment of the trial court was reversed because of a charge substantially identical with that now before us. The conclusion there reached was that “the degree of drunkenness that may shed light on the mental state of the offender is not alone that excessive state of intoxication which deprives a party of the capacity to frame in his mind a design deliberately and premeditatedly to do an act. All murder of the first degree must be perpetrated willfully, deliberately, maliciously and premeditatedly. The jury must ascertain, as a matter of fact, that the accused was in this state of mind when the act was done.”
I have not found an authority that shakes the soundness of this conclusion, and my attention has not been directed to any line of reasoning that tends to the opposite result.
I am authorized by the Chancellor, and by Justices Dixon, Lippincott and Collins, to state that they concur in the views here expressed.
For affirmance — Depub, Gummere, Ludlow, Yan Syckel, Dayton, Hendrickson, Nixon. 7.
For reversal—The Chancellor, Collins, Dixon, Garrison, Lippincott, 5.