Rodgers agt. The People.

The prisoner was indicted and tried for murder, and under an indictment for murder, he could be convicted of either murder or manslaughter.

The deceased was killed by the blow which the prisoner struck with some deadly instrument; deadly, because it produced death. The prisoner said it was a common pocketknife from the evidence of Dr. Hassel, who made the post mortem examination, it is probable it was a large knife, or a dirk-knife.

The meeting between the prisoner and the deceased, on the occasion when the prisoner stabbed the deceased, was not premeditated. There was no evidence, nor even a pretence, that the prisoner knew the deceased, or had ever seen him before. There was nothing other than what took place on the occasion, to show that the prisoner, when he struck the fatal blow, intended to kill the deceased. The attack was sudden, and if the prisoner intended to kill the deceased, that intention was formed on the spot; either when he struck the fatal blow which produced death, or a few moments before.

If the prisoner did intend to kill the deceased when he struck the fatal blow, he was guilty of murder, though his intention or design to kill preceded the blow but an instant. (The People agt. Clark, 3 Selden, 385; The People agt. Sullivan, 3 id. 396; 2 R. S. 657, § 5.)

If the prisoner struck the fatal blow in the heat of passion, without the intention or design to kill, he was guilty of one of the degrees of manslaughter only. (2 R. S. 661, §§ 10 and 12.)

The whole question was one of intent, to be inferred by the jury from the material circumstances of the case; and every circumstance in the case was material, which the jury was authorized to take into consideration on the question of intent.

Was the intoxication of the prisoner on that occasion a circumstance which the jury were authorized to consider in determining whether the fatal blow was struck with the intention to kill?

We think it was.

Rodgers agt. The People.

The affair was sudden; there was evidence of a mutual combat. The two companions of the prisoner, sworn on the part of the people, testifying that blows passed between the prisoner and the deceased, the deceased striking first. All the witnesses, including Mrs. Swanston, agree in saying, that as the prisoner and his companions, in their nocturnal excursions of city rowdyism, accidentally met the deceased and his wife, and rudely came in contact with the person of Mrs. Swanston, the deceased turned around and spoke to them. The prisoner stopping says: "What is that you say?" The deceased answers, "What is that to you?" According to Mrs. Swanston's ac count, the prisoner then broke away from his companions and struck at her husband, aiming the blow at his breast, and then ran up the avenue. According to the account of the prisoner's two companions, blows passed before the fatal blow, as before stated. Mrs. Swanston says, that as the prisoner and his companions were coming down the avenue, approaching her and her husband, "they were three abreast, walking down and speaking loud, as if excited, angry and quarreling.'

Now, we do not say what weight the intoxication of the prisoner and his companions ought to have had with the jury on the question of intent, had that circumstance been submitted to them with the other circumstances in the case, for their consideration. Nor will we by any means say, that had that circumstance been so submitted, we should have felt bound to disturb the verdict as against the weight of evidence, had they found the prisoner guilty of murder.

But the violent homicide for which the prisoner was tried, had different degrees, depending on the intent to kill, or the absence of such intent. The statutory definition of two of the degrees of manslaughter implies not only that a homicide committed in the heat of passion may have been committed without the intention to kill, but that also such heat of passion is likely to prevent the reasoning, calculation, reflection or design, implied by a particular intent.

Can any one say, that intoxicating drinks taken into the body do not tend to intoxicate the mind, and to inflame the VOL. XV.

36

Rodgers agt. The People.

passions? that they do not tend to make anger and other revengeful passions more excitable? Can any one say, that intoxication does not tend to produce a confusion of mind of material consideration on the question of a specific intent, where from all the other circumstances in the case, it is evident the intent originated on the spot, but an instant before the blow, or cotemporaneously with the will to strike the blow? All human experience proves the contrary.

No doubt great caution is necessary in the application of this doctrine.

We do not say that it should be applied in every case where there is evidence of premeditation aliunde the circumstances of the affray, or occasion on which the homicide was committed; for we know that it is not unusual for criminals to fortify themselves for crime with liquor. But in homicides of different degrees according to the intent, and in larcenies, forgeries and other crimes, depending on intent or knowledge, in many cases the intoxication of the prisoner is a material circumstance for the jury. Surely, it would not be legal or right to convict a man of passing a counterfeit bill, knowing it to be counterfeit, when he was so intoxicated as not to know a counterfeit bill from a genuine one, without proof to show that previous to his intoxication he knew it was counterfeit.

In this case, we think the court below erred in withdrawing the attention of the jury from the circumstance of intoxication in the manner the case shows.

The counsel for the prisoner substantially requested the court to charge the jury, that they had a right to take the intoxication of the prisoner into consideration with the other circumstances of the case, in determining the intent, and that if they found that there was no intention to commit the crime of murder, the jury should find a verdict of manslaughter.

The court, by refusing to so charge, and thereupon charging that intoxication was an aggravation of crime, that it "never excused crime unless it was of a degree to deprive the offender of his faculties," not only erred in refusing to submit the circumstance of intoxication to the jury, for their consideration

Rodgers agt. The People.

as to whether they should find the prisoner guilty of murder or manslaughter, but may have led the jury to suppose that his intoxication was absolutely to be weighed against him in settling their verdict as between murder and manslaughter. And certainly, had the prisoner been on trial for manslaughter only, his intoxication would have tended to make out, and perhaps to aggravate the crime; because it would have tended to show, that the prisoner did the act in the heat of passion.

The error of the court below, does not consist in charging the law wrong as far as the court positively charged; but in giving to the jury good law, on a point where it was applica ble, as a reason for refusing to charge other good law as requested, as to the point of intention where it was applicable.

It is true; and the law in England and this country is, that if a man voluntarily makes himself drunk, it is no excuse for any crime he may commit while he is so. (1 Hale, 7; 4 Black. Com. 26; People agt. Pine, 2 Barb. 566.)

But it does not follow because drunkenness is no excuse for crime, that it is not in some cases, where the question of guilt or innocence is one of intent, or where the degree of the crime on the same facts, depends on the specific intent, a material circumstance in determining whether any crime had been committed, or the degree of the crime which had been committed.

We think, that in this case, the right of the prisoner to have the circumstance of his intoxication fairly submitted to the jury on the question of intent; or whether he was guilty of manslaughter or murder; as clear and as well established by law, as the principle that voluntary drunkenness is no excuse for crime. The principles are consistent with each other. (See Am. Crim. Law, §§ 41, 44, and cases there cited.)

The prisoner stands confessedly guilty of a great crime, and one which from the bold, rowdy recklessness of human life which it and its attending circumstances displayed, calls for a firm condemnation of the law, according to the most stringent, but just rules by its interpretation and its principles, whatever weight his intoxication might have with a jury as to the degree of his crime.

Shafer, Receiver, &c. agt. Humphrey.

The prisoner has his legal rights, and it is the duty of the court, uninfluenced by the repulsive features of his admitted crime, or the condemnatory comments of an excited public press, to see that those rights are protected, and that he is condemned according to the rules of law.

We think, for the reasons above stated, he may have been prejudiced from not having had the circumstance of his intoxication submitted to the jury with the other circumstances of the case, especially considering the positive charge of the court, and that he is therefore entitled to a new trial.

SUPREME COURT.

HASBROUCK SHAFER, Receiver, &c., of the goods, &c., of JOSEPH W. BARLOW agt. PHILIP HUMPHREY.

The complaint must conform to the summons as to the nature of the action. If not, the complaint will be set aside. The summons must control the complaint in that respect. (The cases of Boynton agt. Lapham, 14 How. 360; and Tuttle agt. Smith, id. 395, approved.)

The summons in this case stated that if the plaintiff failed to answer the complaint as required, the plaintiff would take judgment against the defendant for $300, with interest, besides costs. On demand, the defendant's attorney was served with a copy complaint in the nature of a creditor's bill to set aside a written instrument for fraud, &c.; and that the plaintiff as receiver have judgment against the defendant for $500 and costs, or for such other relief, &c. Held, that the complaint be set aside as an unauthorized departure from the summons in regard to the nature of the action. And a general appearance in the suit by the defendant before the service of the complaint, is not a waiver of such irregularity. (See, contra, Webb agt. Mott, 6 How. 439.)

Broome Special Term, February, 1857.

WM. YEOMANS, JR., for plaintiff.

H. KRUM, for defendant.

MASON, Justice. This is a motion to set aside complaint