The defendant, on cross-examination of the witness Moore, asked several questions with reference to whether defendant was drinking or drunk at the time he was arrested on the charge for which he is here prosecuted. The state's objections to these questions were sustained, and this action of the court is urged as error. Whatever the rule may be regarding the defendant's condition mentally at the time of a homicide, as bearing upon the question of malice, the fact that he was drinking or drunk 24 hours after the homicide, without evidence showing continuation back to the time of the act, is not a part of the res gestæ, and is inadmissible in evidence. All the authorities agree as to this.
After the defendant had shot the deceased, *Page 474 and she had fallen, and he had ordered four men there present to throw her into the well, from which she was subsequently taken, defendant went to his "shack," called the four men to him, and gave them $3 each. At that time a proper predicate having been laid, the state was permitted to prove that there, and in the presence of defendant, one of the men said: "You all know what this is for, why this here is for us not to say nothing about it." This was an incriminating statement made in the presence of defendant demanding a denial, and as such was admissible.
Letters No. 1, No. 2, and No. 9, shown and admitted to have been written by defendant to Vera, the party jointly charged with him in this indictment, at the time defendant was in jail charged with the murder of deceased, evidenced an attempt to suppress testimony, and were admissible in evidence.
It was immaterial to any issue as to where Vera Hargett's tent was located or as to where she slept, and the court was in error in permitting the solicitor to ask the questions, bringing out these facts, but the answers rendered the errors harmless.
The defendant requested the trial judge to give many written charges relating to drunkenness reducing a homicide from murder to manslaughter. These charges the court refused. As to those charges which require a reduction to manslaughter in the second degree, we may dispose of by citing the case of Cagle v. State,211 Ala. 346, 100 So. 318, where it is said on authorities there cited:
"Drunkenness may reduce the degree of the homicide from murder to manslaughter, but it is no defense as to either degree of manslaughter."
The cases of Heninburg v. State, 151 Ala. 26, 43 So. 959, and Hill v. State, 9 Ala. App. 7, 64 So. 163, decided on authority of the Heninburg Case, are both expressly and correctly overruled in Cagle's Case, supra.
Voluntary drunkenness is no excuse for crime which does not involve a specific intent or malice. So that it is not the act itself, but the condition of the mind which renders the defendant incapable of forming the specific intent or of harboring malice, which is affected by the mental condition brought on by voluntary drunkenness. In charging the jury generally, and in given charges 3, 10, and 11 on this phase of the testimony the trial judge was explicit, following the rule as laid down by the appellate courts, and on that subject gave to the defendant every instruction to which he was entitled. Laws v. State, 144 Ala. 118, 42 So. 40. This includes refused charges 12, 13, and 14.
The verdict of the jury renders it unnecessary for us to pass upon refused charges 5 and 7.
Refused charge 2 does not state the rule correctly. As is said above, it is not the act producing death that is affected by voluntary drunkenness. The law will not permit the defendant to say that because he was drunk he did not intend to shoot the gun at deceased, but the excuse or defense is limited to the specific intent to take life or an inability to entertain malice. King v. State, 90 Ala. 612, 8 So. 856. Moreover, if this charge relates to intent to take the life of deceased, it is covered in the oral charge.
Refused charges 12, 13, and 14 are covered in the court's oral charge.
Refused charges 15 and 17 are affirmative and under the evidence in this case are properly refused.
Refused charges 18 and 19 pretermit a consideration of the evidence.
Refused charge 20 has a tendency to mislead, and therefore its refusal was not error.
The excerpts from the court's oral charge to which exception was taken, when considered along with the entire charge, are free from error.
There is no error in the record, and the judgment is affirmed.
Affirmed.