defence, when knowledge of right and wrong. Peo. v. Waltz, 50 How. Pr., 204. Feigned insanity. Waltz's case, 3 Abb. (N. C.), 209. Insane impulse Peo. v. Sprague, 2 Park., 43. Phrensy, without derangement, no defense. Pierson's case, 3 C. H. Rec., 123; Sanchez v. Peo., 4 Park., 535; 22 N. Y., 147. Monomania. Stevens v. State, 31 Ind., 485. See Peo. v. Kline, Edm. S. C., 13; Peo. v. Divine, ib., 594; Peo. v. Pine, 2 Barb., 566. Opinion of non-expert as to rational character of act, competent. Peo. v. Conroy, 2 N. Y. Cr., 565.

§ 22. Intoxicated persons, intent.-No act committed by a person while in a state of voluntary intoxication, shall be deemed less criminal by reason of his having been in such condition. But whenever the actual existence of any particular purpose, motive or intent is a necessary element to constitute a particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive or intent with which he committed the act.

Voluntary intoxication, furnishes no excuse; Peo. v. Rogers, 18 N. Y., 9, Peo. v. Smith, 2 Park. Cr., 223; Peo. v Robinson, ib., 235; 1ib., 649; Kenny v. Peo., 27 How. Pr., 202; S. C., 31 N. Y., 330; Lanergan v. Peo., 6 Park., 209; Friery v. Peo., 54 Barb., 319; Peo. v. Porter, 2 Park., 14; Peo. v. Fuller, ib., 36; Peo. v. Wiley, ib., 19; Peo. v. Hammill, ib, 223; Peo. v. Batting, 49 How. Pr., 392; Peo. v Eastwood, 3 Park. 25; 14 N. Y., 562; State v. Harlow, 21 Mo., 446; Shanahan v. Com., 8 Bush., 463; Com. v. Hawkins, 3 Gray, 463; Rafferty v. Peo., 66 Ill., 118; Chorci v. State, 31 Ga., 424; Humphreys v. State, 45 ib., 190. See Peo. v. Lewis, 36 Cal., 531; Hale v. State, 11 Humph., 154; Pirtle v. State, 9 ib., 663; Cluck v. State, 40 Ind., 263. Evidence of intoxication to explain motive and conduct. Lanergan v. Peo., sup.; Peo. v Hammill, sup.; Eastwood v. Peo., sup. State v. Gut, 13 Minn., 311; Kelly v. State, 3 Smed. & Marsh, 518; Golden v. State, 25 Ga., 527; Jones v. State, 29 ib, 594; Jones v. Com., 75 Penn. St. 403; Golliher v. Com., 2 Duvall, Ky., 163; Smith v. Com., 11 ib., 224; Curry v. Com., 2 Bush, Ky., 7; Kriel v. Com., 5 ib., 362; Blimm v. Com, 7 ib., 320; Shanahan v. Com., 8 ib., 463; State v. Horne, 9 Kan., 119; Nichols v. State, 8 Ohio,. N. S., 435; State v. Schingen, 20 Wis., 74; State v. Garvey, 11 Minn., 154. Where intoxication produces insanity. Lanergan v. Peo., supra; O'Brien v. Peo., 48 Barb., 274; Peo. v. Williams, 43 Cal., 314; Cromwell v. State, 1 Mart. & Yerg., 147; U. S v. Drew, 5 Mason, 23; State v. McGonigal, 5 Harring, 510. Delirium tremens. O'Brien v. Peo., supra; Real v Peo, 55 Barb., 551; S. C., 42 N. Y., 270; Maconnekey v. State, 5 Ohio, N S., 77; Willis v. Com. (Va.) 22 Alb. L. J., 176; Peo. v. Cavanagh, 62 How. Pr., 187; Peo. v. Pearce, 2 Edm., S. C., 76; Peo. v. Jones, ib., 86; Flanigan v. Peo 86 N. Y., 554; Peo. v. O'Connell, 87 N. Y., 377. See Peo. v. Cassiano, 17 W. Dig., 499; Peo. v. Mills, 98 N. Y., 176.

§ 23. Morbid criminal propensity, no defense.-A morbid propensity to commit prohibited acts, existing in the mind of a person who is not shown to have been incapable of knowing the wrongfulness of such acts, forms no defense to a prosecution therefor.

Peo. v. Otto, 38 Hun, 97. See Huntington's Trial and authorities cited.

24. Defense of duress, by married woman.-It is not a defense, to a married woman charged with crime, that the alleged criminal act was committed by her in the presence of her husband.

Keeping disorderly house. Boyd's case, 3 C. H. Rec., 134. Goldstien et al. v. Peo., 10 W. Dig., 506; 82 N. Y., 231; Seiler v. Peo.,77 N. Y., 411 ; Péo. v. Ryland, 28 Hun, 568, aff’d 2 N. Y. Cr., 438.

§ 25. Duress, how constituted. Where a crime is committed or participated in by two or more persons, and is committed, aided, or participated in by any one of them, only because, during the time of its commission, he is compelled to do, or to aid or participate in the act, by threats of another person engaged in the act or omission, and reasonable apprehension on his part of instant death or grievous bodily harm, in case he refuses, the threats and apprehension constitute duress, and excuse him. Goldstein v. Peo., 82 N. Y., 231.

§ 26. Act done in defense of self or another.—An act, otherwise criminal, is justifiable when it is done to protect the person committing it, or another whom he is bound to protect, from inevitable and irreparable personal injury, and the injury could only be prevented by the act, nothing more being done than is necessary to prevent the injury.

See post, §§ 203, 201, 205, 223. Code Cr. Proc. §§ 79, 80, 81. Statutory offenses indictable, though penalty also. Peo. v. Ste vens, 13 Wend., 341, Peo. v. Brown, 16 Wend., 561. A person at tacked if justified in reasonably apprehending great bodily harm and the danger iminent, may kill his assailant. Shorter v. Peo., 2 N. Y., 193; Patterson v Peo., 46 Barb. 625. See Peo. v. Lamb, 54 Barb., 342; Peo. v. Austin, 1 Park., 154; Peo. v. Cole, 4 Park., 35; Pfomer v. Peo., ib., 558; Uhl v. Peo., 5 ib., 410. Party as sailed must avoid attack if possible to justify resistance. Peo. v. Sullivan, 7 N. Y., 396; Peo. v. Cole, supra; Peo. v. Harper, Edm. S. C., 180; Shorter v Peo., supra. Resistance to prevent felony. Ruloff. v Peo., 45 N. Y., 213; Peo. v. Hand, 4 Alb. L. J., 91. Need not first invoke protection against anticipated assault. Evers v. Peo., 3 Hun, 716, 63 N. Y., 625. Defense of possession of real property. Corey v. Peo., 45 Barb., 262; Wood v. Phillips, 43 N. Y., 152; Peo. v. Gulick, Lalor, 229; Harrington v. Peo., 6 Barb., 607. Defense of personal property. Gyre v. Culver, 47 Barb., 592; Morgan v. Durfee, 21 Alb. L. J., 215.

§ 27. Exemption of public ministers.—Ambassadors and other public ministers from foreign governments, accredited to the president or government of the United

States, and recognized according to the laws of the United States, with their secretaries, messengers, families and servants, are not liable to punishment in this state, but are to be returned to their own country for trial and punishment.

Wheat. Int. L., 261, § 6; 271, § 14; Vattel, 470, § 91, etc. 1 Bish. Cr. L., § 585. Act of Cong., Apr. 30, 1790, ch. 9, § 25. By treaty, assault by and upon German citizens, on board vessel in port, State courts have no jurisdiction, except as it disturbs the peace; Peo. v. Marine Court, 6 Hun., 214.

TITLE II.

Of Parties to Crime.

SEC. 28. Principal and accessory.
29. Definition of principal.
30. Definition of accessory.

31. All principals in misdemeanors.
32. Trial of accessories.

33. Punishment of accessories.

§ 28. Principal and accessory.-A party to a crime is, either

1. A principal; or,

2. An accessory.

§ 29. Definition of principal.-A person concerned in the commission of a crime, whether he directly commits the act constituting the offense or aids and abets in its commission, and whether present or absent, and a person who directly or indirectly counsels, commands, induces or procures another to commit a crime, is a principal.

Peo. v. McMurray, 4 Park, 234; Wixson v. Peo., 5 ib., 119. Peo. v. Katz, 23 Hun, Pr., 93; Carrington v. Peo., 6 Park., 336.

§ 30. Definition of accessory.-A person who, after the commission of a felony, harbors, conceals, or aids the offender, with intent that he may avoid or escape

from arrest, trial, conviction, or punishment, having knowledge or reasonable ground to believe that such offender is liable to arrest, has been arrested, is indicted or convicted, or has committed a felony, is an accessory to the felony.

Innocent agent. Peo. v. McMurray, 1 Sheld., 563; Peo. v. Hall, 57 How. Pr., 342.

§ 31. All principals in misdemeanors.-A person who commits or participates in an act which would make him an accessory if the crime committed were a felony, is a principal and may be indicted and punished as such, if the crime be a misdemeanor.

See § 682, post

Peo. v. Erwin, 4 Den., 129; Lowenstein v. Peo., 54 Barb., 229.

§ 32. Trial of accessories.-An accessory to a felony may be indicted, tried, and convicted, either in the county where he became an accessory, or in the county where the principal felony was committed, and whether the principal felon has or has not been previously convicted, or is or is not amenable to justice, and although the principal has been pardoned or otherwise discharged after conviction.

See 126, post. Evidence. Levy v. Peo., 80 N. Y., 327; 19 Hun, 383. See Jones v. Peo., 20 Hun, 545; 81 N. Y., 637; Peo. v. Lyon, 99 N. Y., 210.

§ 33. Punishment of accessory.-Except in a case where a different punishment is specially prescribed by law, a person convicted as an accessory to a felony is punishable by imprisonment for not more than five years, or by a fine of not more than five hundred dollars, or by both.

TITLE III.

Degrees in the Commission of Crimes and Attempts to Commit Crimes.

SEC. 34. What is an attempt to commit a crime.

35. Prisoner indicted may be convicted of lesser crime, or attempt.

36. Acquittal or conviction bars indictment for another degree, or attempt.

§ 34. Attempt to commit crime defined. An act, done with intent to commit a crime, and tending but failing to effect its commission, is an attempt to commit that crime.

See § 685, post.

Peo. v Lawton, 56 Barb., 126. Solicitations are not an attempt. Stable v. Com. (Pa.), 22 Alb. L. J., 458; Contra; l'eo. v. Bush, 4 Hill, 134.

§ 35. Prisoner indicted may be convicted of lesser crime, or attempt.-Upon the trial of an indictment, the prisoner may be convicted of the crime charged therein, or of a lesser degree of the same crime, or of an attempt to commit the crime so charged, or of an attempt to commit a lesser degree of the same crime.

See Code Cr. Proc., §§ 444, 445.

Peo. v. Jackson, 3 Hill, 92; Peo. v. Saunders, 4 Park., 196; Keefe v. Peo., 40 N. Y., 348; Dedieu v. Peo., 22 N. Y., 178; Peo. 2. Lyon, 1 N. Y. Cr., 400.

§ 36. Acquittal or conviction bars indictment for another degree, or attempt.-Where a prisoner is acquitted or convicted, upon an indictment for a crime consisting of different degrees, he cannot thereafter be indicted or tried for the same crime, in any other degree, nor for an attempt to commit the crime so charged, or any degree thereof.

Art. 1, § 6, N. Y. Const. Guenther v. Peo., 24 N. Y., 100; Peo. v. Dowling, 23 A. L. J., 353; Peo. v. Saunders, supra.