from drinking without any intention to become drunk, and without any belief, on the part of the drinker, that drunkenness is likely to ensue; (3) it may arise without any intention to become drunk, and without reference to a crime to be committed therein, though the drinker might have easily foreseen, that under the existing circumstances he would have become drunken. The legal consequences of these distinctions will be more closely examined hereafter.

III. In regard to the nature of the offences' committed while in a state of drunkenness, three kinds are to be distinguished, namely:-(1) offences, which require a certain degree of preparation and an internal idea of systematic action, and which, being of a selfish character, can only be committed with consideration, such as theft and counterfeiting; (2) offences, which consist in certain expressions, indicating the dangerousness or internal corruption of the offender's mind, or a disposition to do wrong to others, as, for example, injuries, blasphemy, and seditious speeches; (3) offences, which consist in violent acts and are committed in a sudden ebullition of passion. In reference to offences of the first kind, the existence of drunkenness in the highest degree can scarcely be supposed, since the consideration which belongs to the crime is not compatible with that want of consciousness, which is essential to the highest degree of drunkenness. In such cases, therefore, drunkenness in the second degree more often comes in question; but it is necessary also to take into consideration the whole deportment of the offender. He, who takes a thing, which he knows does not belong to him, with an intention to steal it, is not exempt from punishment, even though his courage. has been elevated, or his appetite inflamed, by drunkenness of the first or second degree, provided his subsequent conduct, after the drunkenness has passed away, as, for ex

1 Clarus, as above cited, p. 116.

ample, when he neglects to give back the thing, shows that the animus lucri faciendi was present at the time or was superadded afterwards; whilst, on the other hand, drunkenness comes into consideration, when a person in the highest degree of drunkenness takes the thing of another, without knowing that he does so, or without knowing that the thing is the property of another, as, for example, when he throws. away the thing in a drunken fit, or, when, by giving it back after the intoxication is over, and he becomes conscious of his fault, he shows that he had no intention to appropriate it. In offences of the second kind, there is no responsibility whatever, since, without consciousness, no criminal direction of the will, as, for example, the animus injuriandi, is possible; and the verbal declarations of a drunken man not only occur as the products of a condition in which the will exercises no restraint, but, in the mouth of such a person, whose condition is visible to every body, cannot be the means of injury. Still, in this class of cases, also, the responsibility of the offender often depends upon preexisting personal relations, as, for example, when a drunken man utters injuries against his enemy; or upon his subsequent conduct, as, for example, when, upon becoming sober and being informed of the injurious speeches and required to recall them, he refuses to do so. In crimes of the third kind, the highest degree of drunkenness comes chiefly into consideration in the case of an act, which, if committed by a sober man, would be punishable as murder or criminal wounding. In such a case, the drunkenness has the effect to do away with the character of premeditation, which would otherwise belong to the act, and, according to the circumstances, to reduce the punishment to that of an act committed under the impulse of passion, or even to render the offence punishable only as a fault (culpa)."

1 In many offences, the nature of the act committed precludes the supposition of the existence of the highest degree of drunkenness in the offender,

IV. The individuality of the actor comes into consideration, (a) in so far as he is a man, who is in general inclined to crime, and gives himself up to it on the least occasion, or, on the other hand, is a thoroughly blameless and just person; (b) in so far as he is an habitual drunkard, and has sufficient knowledge of the consequences which result from that condition; (c) in so far, as, during his drunkenness, he gives proof of the continuance of consciousness, and, by the means which he makes use of, the adaptation of his acts to a definite purpose, and by the preparations already made for the crime in the first stages of his drunkenness, shows that he knows what he is doing, and is conscious of the motives by which he ought to be deterred; (d) in so far as the drunken man, while the offence is yet incomplete, receives timely warning, and is consequently in a situation to perceive the criminal character of his undertaking.

S VII. Culpable Drunkenness.

From what has already been mentioned in § III, it is manifest, that the doctrine, according to which an offence committed in the highest degree of unintentional drunkenness is imputable as culpa only, (where there are no particular grounds also for relieving the offender from that imputation), may be considered to correspond to the doctrine of the German jurisprudence.' There are also internal grounds, derived from the essential nature of imputability, which speak in favor of the truth of the same doctrine. The drunken man is on the same footing with one, who, without any intention to commit an offence, im

because a person intoxicated in that degree would not possess the physical power necessary to the commission of the offence, as, for example, rape.

1 See the citations in the notes on p. 296, in § III, and also Theodorici colleg. theoret. pract. crim. Disp. 7. thes. 7; Quistorp, Principles, § 95; Meister, Principia, § 117; Martin, Criminal Law, § 39: Jarcke, Manual, part i. p. 175.

properly puts himself in a condition, which, as he cannot fail to know its danger, he might easily and ought to have avoided. In the same manner, that, when one goes with a burning light into a barn and sleeps there, or playfully shoots at another with a gun, of which he does not know whether it is loaded or not, we consider the criminal act which results from such carelessness as a culpa; and in the same manner, that, when a pregnant woman suffers the birth of her child to take place in secret, and thus puts herself in a helpless condition, we impute the death of the child to her as a culpa ;-so, in the same manner, a drunken man is obnoxious to the reproach of culpa, when he commits an offence in that condition; since he might have avoided falling into it, and, according to common experience, he could not have been ignorant, that a drunken man is no longer master of himself, and is against his will impelled to acts, which in a sober state he would not have committed.

2

The doctrine of Tittmann,' that drunkenness does not inculpate, but that when not intentionally induced, it is unimputable, because the crime committed does not stand in connection with the criminal intent, is inadmissible; because such a connection certainly does exist, at least, indirectly, since the disposition of will to commit the offence is the consequence of the excitement produced by the drunkenness, and the drunken man cannot be ignorant that by drinking he will put himself in a condition in which he will be dangerous to other persons. It is difficult to determine what drunkenness is to be considered as culpable. We often hear it asserted, that drunkenness, even when it is

3

1 Tittmann, Manual of Criminal Jurisprudence, part i. § 87; Gans, also, in his critical exposition of the Hanoverian project, p. 229, considers it essential to inquire whether the drunkenness is culpable.

* Feuerbach, Compendium of Criminal Law, 10th edition, § 57.

3 Moltzer, de causis a reo allegandis, quæ doli præsumt. elidunt, Lugdun. 1810, p. 86.

not induced with a view to the commission of an offence, is wilful, and consequently culpable, inasmuch as the drunken man wilfully resorts to the means by which he becomes drunk; and, as drunkenness arises only gradually and by degrees, the drunken man by a timely giving up of his liquor might escape all further danger; but, on the other hand, it must be taken into view, that in regard to the consequences of drinking, no absolute principle can be established; that there are persons who can drink thirty measures of liquor and still remain sober and discreet, whilst the majority of others are made drunk by the sixth part of that quantity; that persons in liquor conduct themselves very differently, and while one quietly sleeps off his intoxication, another diverts himself and others by his jokes, and a third gets into the greatest rage and destroys every thing within his reach; it must also be considered, that, in regard to the consequences of drunkenness, so much depends upon accidental contemporary circumstances, that it is only by means of morbid affections on certain days, or in consequence of raillery and contradiction, which the drunken man is subjected to by others, or from the circumstance that he comes immediately into the open air, that he becomes inclined to the commission of crimes, whilst on other days and under different circumstances, the same quantity of liquor would have no such effect upon him. For these reasons, it cannot be said, that every drunkenness is culpable, merely because the drinker must have known that he would become drunk. According to another opinion,' in order to decide whether the condition is a culpable one, it is only necessary to inquire whether the party, on the day on which he committed the offence, drank immoderately. This view may be admitted, provided the sense of it is that it is to be ascertained, whether the party, on that day, drank