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The second ground relied upon for nonsuit was that the plaintiff below had no insurable interest in the property destroyed by the fire, but this objection cannot prevail because there was evidence upon which the jury had a right to find that the insured was the lawful owner of the property insured,

The other assignment of error is based upon an exception to the refusal of the trial court to charge that if the insured did not present his amended certificate until March 17, 1892, then his right of action did not accrue until sixty days there after, and the action having been commenced before that time elapsed, the suit was prematurely instituted and no recovery could be had.

The policy provides that the company shall become liable to pay the loss sixty days after proofs of loss have been duly furnished, and that no action shall be sustainable upon the policy unless commenced within twelve months after the fire.

There is a further provision that the insured, if required, "shall furnish a certificate of the magistrate or notary public (not interested in the claim as creditor or otherwise, nor related to the insured) living nearest the place of fire, stating that he has examined the circumstances, and believes the insured has honestly sustained loss to the amount that such magistrate or notary public shall certify."

The company did not demand notary's certificate until nearly eleven months after the fire, so that, if the insured had waited sixty days after such demand before he had issued his summons in this suit, his action would have been barred by the twelve months' limitation.

The demand for notary's certificate was not a demand for amended proofs of loss. Such a certificate is no part of the proofs of loss, and it need not be furnished with or annexed to the proofs of loss. It is outside of the proofs of loss, and is required by the terms of the policy only on express demand by the company for it.

682 As before stated, the proofs of loss were served June 22, 1891. There was no exception taken by the company to these proofs. The loss was payable at the expiration of sixty days from June 22, 1891. The suit, therefore, was instituted within the time limited by the policy and not before the due day.

There is no error in the proceedings of the trial court, and the judgment should be affirmed.

INSURANCE-WAIVER OF FORFEITURE BY REQUIRING FURTHER PROOFS OF Loss.-This question is the subject of the monographic note to Wheaton ▼. North British etc. Ins. Co., 9 Am. St. Rep. 236.

WARNER V. STATE.

[56 NEW JERSEY LAW, 686.]

HOMICIDE-INToxication as Reducing Degree OF CRIME.—Partial intoxication of one who kills another does not affect the degree of the crime if an intention and design to take human life exist at the time of the killing.

HOMICIDE-INTOXICATION AS REDUCING DEGREE OF CRIME.-The fact that one is intoxicated at the time he kills another, and that the design to take human life is conceived, or conceived more suddenly, by reason of the intoxication, does not reduce the killing to murder in the second degree. HOMICIDE-INTOXICATION AS REDUCING DEGREE OF CRIME.-A killing, ac complished with a design to take human life, uninduced by any provocation which would reduce it to the degree of manslaughter, is not reduced to murder in the second degree by the intervention of the partial intoxication of the offender, regardless of his ability to appre hend what punishment would follow the killing.

INTOXICATION TO EXCUSE CRIME must be of such a degree as to render the offender incapable of entertaining an intent to commit such crime. If it falls short of this it is worthless as a defense.

HOMICIDE-INTOXICATION-REASONABLE DOUBT.-The refusal of the court to charge in a murder case that, if the jury have a reasonable doubt as to whether at the time of the killing the accused had, as the result of intoxication, or its after effects, sufficient mental capacity to form an intent to kill, he cannot be found guilty of murder in the first degree, is not error when the jury has been properly instructed upon reasonable doubt generally, and as to the necessity of the concurrence of all elements essential to warrant a conviction. HOMICIDE-UNAUTHORIZED VISIT BY JURY TO PLACE OF KILLING.-The fact that the jury, during the trial, visited the place of the murder in charge of an officer, but without authority from the court, though irreg. ular, is not ground for setting aside a verdict of guilty, unless the accused is prejudiced thereby. CRIMINAL LAW-RIGHTS OF ACCUSED WHEN REPRESENTED BY COUNSEL.The failure of the trial court to ask a prisoner after conviction and before pronouncing judgment, if he has any thing to say why judgment should not be pronounced, is no ground for a reversal when the prisoner is represented by counsel.

C. E. Hendrickson, for the plaintiff in error.

E. P. Budd, for the defendant in error.

686 REED, J. On September 18, 1892, Wesley Warner killed Elizabeth Peak. They had been illicitly consorting. On the night of the 18th he was at the house of the girl's 687 parents. He had been drinking. During the evening he left the house, taking with him a butcher-knife.

He was next seen lying in the road by the two sisters of the girl and some young men who were accompanying the three women home. Warner rose from the ground, caught Lizzie, and struck her with the knife, from which blow in a few minutes she fell dead. For this deed he was tried and convicted of murder in the first degree.

The noticeable assignments of errors are confined to three points.

The first concerns the refusal of the court to charge certain requests in respect to the effect of the intoxication of the defendant upon the degree of his criminality.

The first of these requests was the following: "That if the defendant was at the time in such a state of intoxication that his mind was incapable of premeditating the fatal blow with the intent to take life, and his reason was deprived of the power to think and weigh the nature of the act and the consequences of the act, then the offense committed cannot be more than murder in the second degree."

The court charged, generally, that "if the defendant was mentally capable of conceiving a design to take the life of the woman, and 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 in the first degree; whereas, if you find that he was incapable, from the condition of his mind, of conceiv ing such a purpose, or that, in point of fact, he had not fully conceived such a purpose, and acted in striking the fatal blow not from design, but from sudden and motiveless, or from uncontrollable, because drunken, violence, then he is not guilty of murder in the first degree, but guilty of murder in the second degree."

In respect to the request already set out the court remarked: "I decline to charge that he must have weighed the consequences of the act. If he intended to kill, whether he took into consideration all of the possible consequences of the act, I do not think is material."

688 Assuming that the theory upon which the request to charge and the charge was formed is correct, namely, that a

degree of drunkenness which obliterates from the mind of a homicide all intention to take life, reduces the degree of the crime, I yet fail to see any error in the general language of this charge, or in the response to the request. The point was clearly presented to the jury that the question was whether there existed a design to take life. This design involved the consequences of the act committed, in respect of the result of the blow, namely, whether the use of the knife was likely to kill. The request involved an irrelevant consideration. It included, also, a submission of the question of the ability of the defendant to apprehend what punishment would follow the killing.

There is an assignment, also, to the refusal of the judge to charge the language of a request framed as follows: "That if, upon the whole evidence, the jury have a reasonable doubt whether, at the time of the killing, defendant had, as the result of intoxication or its after affects, sufficient mental capacity to deliberately think upon and rationally determine to kill the deceased, they cannot find him guilty of murder in the first degree."

The response of the court was: "I have charged that the prisoner must have been able to form, and must have formed, a design to take life, which was not the result of mere sudden passion or of intoxication, and I refuse to charge otherwise."

Now, the court had already charged that "if there be, in regard to any fact, any condition of doubt in the mind of juror of that character which has been described as reasonable doubt, . . . . that doubt should be resolved in favor of the defendant." Then follows a full and accurate statement of the legal idea of the term "reasonable doubt."

The court is not obliged to reiterate the same idea in every possible lingual shape in which it may be framed in different requests.

Design to kill was a fact. A reasonable doubt of the existence of that fact might spring out of the drunkenness of 689 defendant, or out of any other circumstance or combination of drunkenness with other circumstances.

A charge that the defendant was entitled to the benefit of a reasonable doubt as to any fact the state was bound to prove, involved, necessarily, the proposition that if there was a reasonable doubt whether drunkenness deprived the defend

AM. ST. REP., VOL, XLIV.-27

ant of this intent to kill, he could not be convicted of murder in the first degree.

The fourth request was as follows: "That though the jury should find that, at the time the blow was struck the defendant was not so drunk as to be incapable of forming the premeditated and deliberate intent to kill, yet if the jury, in considering the effects of his intoxication with all the other facts, should find that the purpose to kill the deceased, if any, was formed in passion or jealous rage, produced upon his mind excited by liquor, upon suddenly finding the deceased in company with another man on the road, then it would reduce the offense to murder in the second degree."

The fifth request was to the same purport. These requests were refused except as before charged.

The substance of these requests was that the jury should be instructed that a killing accomplished with the design to take life, uninduced by any provocation which would reduce it to the degree of manslaughter, could be reduced to murder in the second degree by the intervention of the partial intoxiIcation of the offender.

The general proposition is that drunkenness is no excuse for crime. The reasoning upon which, in those states in which murder is distinguished by degrees, drunkenness is permitted to modify the degree of the crime, rests upon one requirement essential to constitute murder in the first degree. This requirement is the existence of actual, specific maliceof an actual intent to take life. Without this there is no crime in that degree.

Any condition of fact, whether drunkenness or other circumstance, which shows the nonexistence of this kind of actual malice, is relevant, not as an excuse for crime, but as 690 showing that no statutory crime at all of the degree named was committed.

This is the theory upon which all the cases go which recognize drunkenness as an element in the ascertainment of the degree of murder: State v. Johnson, 40 Conn. 136; 41 Conn. 585; Roberts v. People, 19 Mich. 401; Pigman v. State, 14 Ohio, 555; 45 Am. Dec. 558; Shannahan v. Commonwealth, 8 Bush, 463; 8 Am. Rep. 465; Jones v. Commonwealth, 75 Pa. St. 403; Commonwealth v. Dorsey, 103 Mass. 412. It is to be remarked that these cases carry the rule no further than this.

In respect to murder in the second degree, it is said in

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