Appellant was convicted of an assault with intent to murder, and his punishment assessed at three years confinement in the penitentiary, and prosecutes this appeal.
The court did not commit any error in regard to the jury. The regular panels for the week were out, considering two other cases. No motion was made to postpone to await their return into court. But appellant simply objected to the court ordering talesmen to be summoned to fill out the panel, in connection with those of the regular jury who were present. This, as we understand it, is in accordance with the practice under our statutes. Leslie v. State (Texas Crim. App.), 47 S.W. Rep., 367.
Nor did the court err in refusing to permit defendant to prove by the officer statements which he made to the officer several hours after the alleged offense. This was no part of the res gestae, nor was it any portion of any conversation brought out by the State.
Appellant complains of the court's charge on the subject of insanity produced by the recent use of intoxicating liquors, which is in accordance with the provisions of our Penal Code (article 41), and also complains of the action of the court in refusing to give certain special requested instructions with reference to the state of mind of defendant, produced by intoxication, in connection with his intent. That is, the court was requested to instruct the jury, if they believed from the evidence that defendant's mind was in such condition, from any cause, that he was incapable of forming the deliberate intent to kill the assaulted party, to acquit of assault with intent to murder. Appellant, in this connection, insists that where intent enters into an offense, and the evidence tends to show that the condition of the person's mind from the use of whisky is such as to show him incapable of forming the intent necessary to commit the crime, the jury should be fully instructed to this effect. In murder cases, evidence of temporary insanity produced by the recent use of intoxicating liquors is admitted for the purpose of determining the degree of murder, and also in mitigation of the penalty, so that this character of evidence will not reduce a homicide which would otherwise be murder in the first degree below murder in the second degree; and, inasmuch as an assault with intent to murder may be either upon express or implied malice, the only effect this character of testimony would have in a case of assault with intent to murder, would be to mitigate the penalty. That is, conceding that article 41, Penal Code, defining the rights of a defendant who sets up temporary insanity produced by the recent use of intoxicating liquor, does not *Page 554 unduly limit or abridge some fundamental right of the citizen. At common law, drunkenness produced by the recent use of whisky, although it produce temporary insanity, was no defense to crime; and our statute on the subject seems to have been passed with that idea in view. And in Evers v. State, 31 Texas Criminal Reports, 318, the legality of this statute appears to have been the subject of consideration. In that case it was held valid, and the rule there laid down has since been followed. Appellant, however, insists that in a case of assault with intent to murder the party must have the specific intent of his malice aforethought to take life, and that an insane person, whether the insanity is produced by drunkenness or other cause, is incapable of forming the specific intent. As we have seen, this specific intent need not be formed in a cool and deliberate mind, but may originate in a mind inflamed or ruffled by passion; and in this character of case, where the act indicates the purpose, the intent is presumed. That is, where the law imputes specific intent from the commission of the particular act, the fact that defendant was intoxicated at the time he committed the act will not be considered. The authorities all seem to hold that temporary insanity produced by the recent use of whisky is no answer to a charge of murder in the second degree. For collation of authorities, see 17 Am. and Eng. Enc. of Law, new ed., p. 413, note 9. Aside from this, all of the authorities hold that mere drunkenness, short of insanity, is no defense to crime; and this is in harmony with our statute on the subject. An examination of the record here does not show or tend to show a case of insanity, but merely shows an ordinary case of voluntary drunkenness; and we do not feel called upon to review the question, much less to overrule our former decisions construing article 41, Penal Code.
We do not think there was anything in the newly discovered evidence. By the use of reasonable diligence, it appears, appellant might have ascertained how the shot was fired before the trial. There is not appended to the application the affidavits of the witnesses to the newly discovered testimony. Besides this, the evidence showed that appellant had already assaulted the prosecutor and snapped his pistol at him once or twice before the shot was fired; and, even if the newly discovered evidence would show that the shot was fired in the ground, this might merely suggest evidence of bad markmanship. The judgment is affirmed.
Affirmed. *Page 555