The Supreme Court of Kansas. interest in the lives and limbs of its citizens, that it has the power to enact statutes for their protec tion, and the provisions of such statutes are not to be evaded or waived by contracts." In the case of The State of Kansas v. Yarborough, 39 Kas. 581, Chief-Justice Horton held that the defendant, who committed murder, was not excused from the penalty of the law on account of his voluntary intoxi cation. He said in the case, among other things, that " the instructions concerning intoxication and insanity sufficiently embrace the law applicable to the case. Lord Bacon said : ' If a madman commit a felony he shall not lose his life for it, because his in firmity came by act of God; but if a drunken man commit a felony, he shall not be ex cused, because the imperfection came by his own default.' For this reason the courts unanimously hold that if a man kills another while in a fit of voluntary intoxication, it is murder, and he must suffer the penalty. Of course, drunkenness may be considered by the jury in determining whether there was that deliberation, premeditation, and intent to kill necessary to constitute the offence charged. In this case it is not claimed that the drinking had created delirium tremens, or that the defendant was insensible. We think he was not so drunk as to have lost his understanding or reason. Counsel assert that when the defendant is slightly drunk, he becomes wild, vicious, and ungovernable. They refer to his unprovoked attack upon Jordon in 1882, and his attempt in 1883 to cut the throat of a friend. It seems when he indulged in drinking intoxicating liquor, even to a slight extent, he became a second Mr. Hyde. Upon this account it is urged he should be dealt with more leniently. Our decisions denominate drunkenness malum in se, and not an innocent mistake merely.1 "If the story of Dr. Henry Jekyll were true, rather than a fanciful one, Dr. Jekyll, according to the theory of counsel, ought not to have been responsible for the murder of Sir Danvers Carew, although he voluntarily 1 The State v. Brown, 38 Kas. 390. 43
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drank the potion that so powerfully con trolled and shook the very fortress of his identity. Dr. Jekyll, like Yarborough, when not under the influence of the fatal potion which he accustomed himself to drink, was of a very kind disposition and unusual amia bility. After drinking the drug or tincture, he doffed at once the body of the noted pro fessor, and assumed, like a thin cloak, that of Mr. Hyde; his pleasures then turned toward the monstrous, and his whole being, as Mr. Hyde, was inherently malign, brutish, and wicked. At such times the kindness and virtues of Dr. Jekyll slumbered, but the evil of Mr. Hyde was alert and swift to seize the occasion. Should it be said that Dr. Jekyll was not responsible, and that Mr. Hyde, after all, and Mr. Hyde alone, was the guilty one? Yarborough is not to be relieved from responsibility because he did not get drunk with the thought of a difficulty with Collier. Dr. Jekyll did not drink the drug, changing his character to one wholly evil, for the purpose of injuring the child he cruelly trampled upon, nor to take the life of Sir Danvers; but in that case, as in this, a wicked and depraved disposition was devel oped or produced by the voluntary act of the party. If the indulgence in a slight degree in intoxicating liquor awoke in the defendant the spirit of hell, he should have refrained from touching the intoxicating draught; he should have chosen the better part, and not been found wanting in strength to keep it. "The law will hardly recognize the theory that any uncontrollable impulse may so take possession of a man's faculties and powers as to compel him to do what he knows to be wrong and a crime, and thereby relieve him from all criminal responsibility. Whenever a man understands the nature and character of an act, and knows that it is wrong, it would seem that he ought to be held legally responsible for the commission of it, if in fact he does commit it. "In the tragedy of Othello, Montano, to quiet Cassio, who had taken a few cups, but was unfortunate in the infirmity, said :
