more than he was accustomed to drink without becoming drunk. If one, who, for example, is accustomed every day to drink eight measures of beer, and to become thereby only somewhat brighter, without losing his consciousness, take only six measures on some particular day, and in consequence of certain accidental circumstances occurring on that day, he is thereby reduced to a degree of drunkenness, which, under other circumstances, would not have taken place; such drunkenness ought not to be considered as culpable. It is manifest, that the question of culpability must be decided according to the individuality of the person. He, who does only what he is regularly accustomed to do, provided it be a thing in itself permitted, is free from fault; for he cannot foresee that he will become drunk, and consequently in a situation in which he will be dangerous to others. But when one drinks more than he is accustomed to drink, as, for example, when one, who is accustomed to drink six measures daily and to remain sober, drinks seven or eight, and becomes drunk, an offence committed by him in that condition is imputable to him as culpa; for, since he does not restrain himself to his accustomed quantity, he has no ground of exculpation in his favor, but stands upon the same footing with every other drinker, who can and ought to know that drunkenness follows from a free indulgence in strong drink. On the other hand, those go too far, who consider the drunkenness inculpable, where the party is accustomed to the use of liquor and to become intoxicated, but, when drunk, remains peaceable and quiet and indisposed to quarrel; for such a person notwithstanding wilfully puts himself in a dangerous condition, in which he knows that he no longer retains his consciousness, and in which for that very reason he is no longer his own master; and his experience, that his drunkenness has not thus far been followed by any unhappy consequences, is just as little entitled to be considered a ground of exculpation, as

that of one, who, trusting in his often proved skill in shooting, shoots at a wild beast which happens to be very near a man, and, by his carelessness, kills the man.

In order, therefore, to decide properly upon the existence of culpability in the condition of drunkenness, a careful inquiry, with a view to the following particulars, is necessary: (1) how much is the party accustomed to drink without becoming drunk; (2) how does he behave himself when drunk,-is he of a nature which inclines him to quarrel, or does he remain peaceable; (3) whether, on the day when he committed the offence, he was operated upon by particular circumstances, as, for example, vehement anger, by which he was very much excited; (4) whether the disposition to commit the offence was not gradually induced, by the raillery or particular excitement of other persons, who, perhaps, desired the commission of the offence; (5) whether the offence is a consequence of those illusions of the senses or morbid fancies, which arise from drunkenness; (6) or whether it is accompanied by morbid affections and an insane condition, in which there is a disorder of the senses; (7) whether the drinker had not previously had melancholy experience of the passionate disposition into which he is brought by the use of intoxicating drink; (8) whether, before he had become fully drunk, he had not been warned of his danger by others, and requested to abstain from further drinking. It is by a reference also to these particulars, that the degree of culpa, as well as its existence, must be determined.

$ VIII. Intentional Drunkenness.

The doctrine, that, where an offender has intentionally intoxicated himself, in order afterwards to have it in his

This principle is established in the case mentioned by Feuerbach, (as above cited) vol. ii. No, xii.

power to call upon the condition of drunkenness as à ground of exculpation, a crime committed by him in that state should be punishable as dolous, must be admitted to be correct, when it is considered, that in such a case the criminal intention is immediately directed to the crime actually committed; that the crime seems so much the more to be committed wilfully, for the reason, that even during the drunkenness, the mind of the offender is constantly directed towards it; and that the condition upon which the offender's competency to responsibility depends exists, inasmuch as the drinker, who wills to commit the crime, still has consciousness enough, and is consequently in a situation, to recognize and be operated upon by the deterring motives of right and of law. In regard to the principle, which ought to regulate the punishment in these cases, opinions are still divided. The Bavarian criminal code, 40, inflicts the ordinary punishment upon a crime committed in a state of intentional drunkenness.1 Oersted' approves of this provision; while Kleinschrod❜ and Stelzer are of opinion, that a less punishment ought to be applied, where one in the highest degree of drunkenness commits a crime upon which he had not previously resolved; because, at the time of the commission of the act, the drunken man was not competent to the use of reason. Stübel' thinks it important to inquire, whether the offender commits the precise crime which he had in view, or a different one. But, in order that a correct judgment, in regard to this matter, may be possible, it is necessary, in

1 The revised project, § 60, retains this provision only where the intended crime is actually committed, but, in other cases, admits of a lesser degree of responsibility.

2 Principles of Criminal Law, p. 247.

3 Kleinschrod, Systematic Development, part i. p. 224.

* Stelzer, On the Will, p. 312.

5

Stübel, in the appendix to my tract on the most recent state of criminal législation, p. 40.

the first place, to distinguish accurately the several cases that may occur. It is important to determine: (1) whether one has resolved to commit a particular crime, as, for example, to murder A, and in order to give himself courage, or to prepare himself before hand with the excuse of drunkenness, becomes intoxicated; or (2) whether being in a very excited state, but without as yet having formed an intention to commit a crime, he, in a fit of ill humor, as, for example, when he has been insulted by another, drinks excessively, and at last in his drunkenness commits a crime, to which he was already inclined by his previous excited state; (3) whether, during the gradual progress of the drunkenness, the commission of a crime already previously resolved upon has not been hastened by the intervention of causes, which, in general, have the effect to excite the party, as, for example, where one, having resolved to kill his enemy in the evening, drinks excessively in order to give himself courage, but receiving new injuries in the afternoon by which he is very much excited, strikes down his adversary immediately; (4) it is important to ascertain, whether the offence committed is of a nature and kind different from that previously resolved upon,—as where one becomes intoxicated in order to commit a rape upon A, but, in his drunkenness, kills B; (5) or, whether the crime committed is only a higher degree of that intended, as, for example, where one intoxicates himself for the purpose of inflicting a severe wound upon A, and then in the fit of drunkenness kills him.

The application of the punishment must be governed by considering whether the crime actually committed in the fit of drunkenness stands in such a connection with that previously resolved upon, that the former can be regarded as wilful and intentional, and that the previously formed criminal intent can be referred to the crime committed. This is evidently true in the first of the above mentioned

cases, and we can have no hesitation whatever in inflicting the ordinary punishment for murder upon the offender. In the second, on the contrary, there is no particular criminal resolution; the inward storm is first raised to its highest pitch by the drunkenness; the crime cannot be considered as committed with fully continued consciousness, since there was no strong resolution existing, which could continue to operate; the passion is first excited to its highest degree by the liquor, and, consequently, the punishment must be reduced to that for an offence committed in a fit of passion, moderated still further by reason of drunkenness. In the third case, the same may be said; the excitement which takes place during the progress of the drunkenness, receives such an increase of power by reason of the exaltation of the physical state thereby induced, that it impels to the commission of the crime; in this case, we know, indeed, that the drinker willed to commit a crime, and that he actually committed one; but we do not know, whether he would actually have done so, had it not been for the violent excitement into which he was thrown; and, in doubt on this point, we cannot consider the crime to be committed with premeditation. In the next case, the crime committed must be judged of according to the principles established in § VII, and consequently be punishable as a culpa, since the previous consciousness refers to a wholly different offence, and the inclination to the crime actually committed is only the result of the excitement produced by the drunkenness. In the fifth case, on the contrary, the crime committed would be imputed to the offender as intentional; for, he who uses certain means in a certain manner, from which he cannot but know that the most grievous as well as the slightest consequences may result, and who intentionally puts himself, by means of drink, in a condition in which he is no longer master of himself, and is consequently unable to