special sessions, police and city courts presided over by magistrates who hold or are assigned to children's courts, except in the city of New York where the jurisdiction is hereby conferred upon and shall be exercised by the city magistrates.

(Added by chapter 699 of the Laws of 1910.)

Incompetent Persons.

Section 1120. Irresponsibility of idiot or lunatic.

1121. Unlawful confinement of idiots, lunatics and insane persons.

1122. Maintaining private insane asylums.

§ 1120. Irresponsibility of idiot or lunatic. An act done by a person who is an idiot, imbecile, lunatic or insane is not a crime. A person can not be tried, sentenced to any punishment or punished for a crime while he is in a state of idiocy, imbecility, lunacy or insanity so as to be incapable of understanding the proceeding or making his defense.

A person is not excused from criminal liability as an idiot, imbecile, lunatic, or insane person, except upon proof that, at the time of committing the alleged criminal act, he was laboring under such a defect of reason as:

or,

1. Not to know the nature and quality of the act he was doing;

2. Not to know that the act was wrong.

The law presumes sanity in all cases. New York County Court, Oyer and Terminer, December, 1881, People v. Coleman, 1 N. Y. Cr. 5. The burden of overthrowing the presumption of sanity is upon the person who alleges the insanity. Id.

An insane man frequently deliberates, and after the most mature deliberation commits acts which, but for his insanity, would be crimes. Court of Appeals, April, 1891, People v. Wood, 126 N. Y. 267; 36 St. Rep. 863. The question always is, not did the party deliberate, but was he at the time insane within the legal definition of that term. Id.

An insane person cannot be lawfully punished for an act which was com mitted by him while in a state of insanity, or when he has become insane during or after a trial or conviction. Court of Appeals, February 24, 1891, People v. McElvaine, 125 N. Y. 600; 36 St. Rep. 181.

An insane person is incapable of crime. New York County Court, Oyer and Terminer, December, 1881, People v. Coleman, 1 N. Y. Cr. 2.

A lunatic is not criminally liable for his unlawful acts. Supreme Court, October, 1892, d'Autremont v. Fire Association, 48 St. Rep. 43; 65 Hun, 477; 20 N. Y. Supp. 345. But he is responsible civilly for any tort committed by him where a wrongful intent is not an essential thing to be proved. Id.

The species of insanity, called by some moral insanity, constitutes no defense for the commission of crime. Court of Appeals, April, 1891, People v. Wood, 126 N. Y. 268; 36 St. Rep. 963.

In a defense that the homicide was the unconscious and uncontrollable result of epileptic furor, the absence of motive is important, as bearing upon the issue so presented. Court of Appeals, October, 1889, People v. Barber, 115 N. Y. 475; 25 St. Rep. 184.

The doctrine that a criminal act may be excused upon the motion of an irresistible impulse to commit it, where the offender has the ability to discover his legal and moral duty in respect to it, has no place in the law. Court of Appeals, October, 1881, Flanigan v. People, 52 N. Y. 467; Court of Appeals, April 13, 1886, People v. Carpenter, 1 St. Rep. 642; 102 id. 250; 4 N. Y. Cr. 187; Oyer and Terminer, New York County, July, 1873; People v. Walworth, id. 395; Court of Appeals, June, 1865, Willis v. People, 32 N. Y. 717; Court of Appeals, May, 1881, Moett v. People, 85 id. 379; New York County Court, Oyer and Terminer, December, 1881, People v. Coleman, 1 N. Y. Cr. 3.

When it is said that a prisoner must, at the time of the alleged criminal act, have sufficient capacity to distinguish between right and wrong with respect to such act, it is implied that he must have sufficient capacity to know whether such act is violation of the law of God, or of the land, or of both. Court of Appeals, May, 1881, Moett v. People, 85 N. Y. 380.

The test of responsibility is the capacity to distinguish between right and wrong at the time the act was done, and in respect thereto. Supreme Court, December, 1883, People v. Casey, 2 N. Y. Cr. 190. (Reversed in 2 N. Y. Cr. 194; Court of Appeals, May, 1884, 96 N. Y. 115, but on other grounds.) The law does not find irresponsibility where the claim is that such capacity exists, without the power to choose between them. Id.; Court of Appeals, October, 1881, Flanigan v. People, 52 N. Y. 467.

The test of responsibility for criminal acts, where insanity is asserted, is the capacity of the accused to distinguish between right and wrong at the time and with respect to the act which is the subject of inquiry. New York County Court, Oyer and Terminer, December, 1881, People v. Coleman, 1 N. Y. Cr. 2.

The true test of criminal responsibility, where the defense of insanity is interposed, is, whether the accused had sufficient reason to know the nature and quality of his act, and whether he has sufficient reason to know right from wrong. Supreme Court, October, 1881, Walker v. People, 1 N. Y.

Cr. 14.

In order to sustain the defense of insanity, the evidence should be clear and substantial. Supreme Court, October, 1881, Walker v. People, 1 N. Y. Cr. 27. And if there is upon the whole evidence in the case any reasonable doubt, the accused is entitled to the benefit of that doubt and to an acquittal. Id.

The report of the Commissioners under sections 636 to 662 of Criminal Code will not prevent the accused from having the question as to sanity

passed upon by a jury on the trial of the indictment. Madison County Court of Oyer and Terminer, December, 1883, People v. Haight, 13 Abb. N. C. 198. See People v. Haight, 3 N. Y. Cr. 61; Court of General Sessions, New York County, October, 1884, People v. Rhinelander, 2 id. 340.

The rule now established excludes consideration of the question as to whether the accused possessed sufficient mental power to forbear the commission of an act which he clearly perceived to be criminal. Court of Appeals, June 6, 1893, People v. Taylor, 52 St. Rep. 920; 138 N. Y. 407.

An insane delusion with reference to the conduct and attitude of another cannot excuse the criminal act of taking his life, unless it is of such a character, that if it had been true, it would have rendered the homicide excusable or justifiable. Court of Appeals, June 6, 1893, People v. Taylor, 52 St. Rep. 919; 138 N. Y. 406.

Partial insanity, or incipient insanity, is not sufficient, if there is still the ability to perform a correct perception of the legal quality of the act and to know that it is wrong. Court of Appeals, June 6, 1893, People v. Taylor, 52 St. Rep. 919; 138 N. Y. 407. If, when a specific act is contemplated, he has the power to know whether it is wrong to do it and right to refrain from doing it, the law presumes that the person has also the power to choose between the right and wrong course of action, and will not permit either courts or juries to speculate as to its possible non-existence. Id. A desire for self-destruction and the adoption of means to secure it do not of themselves indicate a mental impairment which has advanced to the stage of irresponsibility, otherwise the law would not make the attempt to kill one's self a crime. Court of Appeals, June 6, 1893, People v. Taylor, 52 St. Rep. 920; 138 N. Y. 408.

See 1 St. Rep. 648; Court of Appeals, April 13, 1886, People v. Carpenter, 102 N. Y. 250; 4 N. Y. Cr. 187; Madison County Court of Oyer, December, 1883, People v. Haight, 3 id. 61; 13 Abb. N. C. 198; Court of General Sessions, New York County, October, 1884, People v. Rhinelander, 2 N. Y. Cr. 340.

§ 1121. Unlawful confinement of idiots, lunatics and insane persons. A person who confines an idiot, lunatic or insane person, in any other manner or in any other place than as authorized by law, and a person guilty of harsh, cruel or unkind treatment of, or any neglect of duty towards, any idiot, lunatic or insane person under confinement, whether lawfully or unlawfully confined, is guilty of a misdemeanor.

A

§ 1122. Maintaining private insane asylums. person who conducts or maintains a private insane asylum, or institution for the care or treatment of persons of unsound mind, without a license issued and granted to such person according to law, is guilty of a misdemeanor.

Intoxication.

Section 1220. Intoxication as a defense.

1221. Intoxication in a public place.

§ 1220. Intoxication as a defense. 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.

The law expressly declares that voluntary intoxication, though furnishing no excuse for a criminal act, may be considered by the jury upon the questions of intent and of the degree of crime. Supreme Court, June, 1884, People v. Conroy, 2 N. Y. Cr. 248; 33 Hun, 121. It may also be considered upon the question of deliberation. Id.

The jury have a right to consider the intoxicated condition of the accused. Supreme Court, September, 1883, People v. Cassiano, 30 Hun, 388; 1 N. Y. Cr. 505.

Intoxication does not absolutely tend to show an absence of premeditation and deliberation. Court of Appeals, February, 1885, People v. Mills, 98 N. Y. 181; 3 N. Y. Cr. 187; 21 W. Dig. 137. This is a question for the jury to determine. Id.

The only materiality of the evidence of the defendant's intoxication is its bearing upon the questions of deliberation, premeditation and intent. Court of Appeals, January 13, 1891, People v. Fish, 125 N. Y. 146; 8 N. Y. Cr. 136; 34 St. Rep. 843. If he was sober enough to form an intent and to deliberate and premeditate a crime, then his responsibility is the same as if he had been perfectly sober. Id. His condition in this respect must be taken into account in weighing the evidence as to meditation and deliberation. Id.; Court of Appeals, October, 1881, Flanigan v. People, 86 N. Y. 554.

§ 1221. Intoxication in a public place. Any person intoxicated in a public place may be arrested without warrant while so intoxicated, and be taken before a magistrate having jurisdiction for examination on a charge of public intoxication. If such charge is sustained the court or magistrate shall:

1. Release such person on probation for a period not exceeding one year, and may in addition impose a fine not exceeding ten dollars payable in instalments as the court may direct; or

2. Impose upon such person a fine not exceeding ten dollars, or a sentence of imprisonment not exceeding six months, or both such fine and imprisonment; or

3. Cause such person to be committed to a hospital and industrial colony as provided in subdivision two of section one hundred and thirty-nine-a of the general municipal law.

Provided that, whenever in any city a board of inebriety shall have certified in writing to the mayor of such city that the hospital and industrial colony of said board is ready to receive inmates, and notwithstanding any other provision of law, the court or magistrates having jurisdiction, shall:

a. Dismiss the complaint upon the receipt of a written request for release from a person arrested for public intoxication and upon the receipt of a report from a probation officer of the board of inebriety as provided in subdivision one of section one hundred and thirty-nine-a of the general municipal law; or

b. Issue warrant for the arrest of such person released pursuant to the provisions of subdivision one of section one hundred and thirty-nine-a of the general municipal law, and make such disposition of the case as is authorized in the subsequent provisions of this section; or

c. Release such person, under the supervision of a probation officer appointed by the board of inebriety, for a period not exceeding one year and upon such conditions as the court may impose. Upon violation of any of these conditions the probationer may be arrested on a warrant issued by the president or secretary of the board of inebriety and brought before the court. The court may, thereupon, impose sentence upon such probationer as provided in the subsequent provisions of this section and shall do so if the probationer has been released under supervision two or more times and has twice violated the conditions of his release; or

d. Release such person on probation as in the next preceding subdivision of this section, and in addition impose a fine not exceeding twenty-five dollars. Such fine may be paid in instalments in such amounts and at such times as the court may determine and shall be paid to the board of inebriety in such manner as said board may direct. Upon failure to pay such fine as directed, the probationer may be arrested and brought before the court as provided in the next preceding subdivision of this section. The court may, thereupon, impose sentence upon such probationer as provided in the subsequent provisions of this section and shall do so if the probationer has been released two or