In Bill of Exception No. 1 it is shown that the court instructed counsel for the state to refrain from making reference to the previous conviction of the appellant for the possession or transportation of intoxicating liquor.
From Bill No. 2 it appears that the witness Hogg was asked by the district attorney the following question: "Where did you and Monroe go?" The witness replied: "To get some whisky." Objection to the answer because not responsive was sustained by the court and the statement of the witness was withdrawn from the jury.
Bill No. 7 shows that over the objection of the appellant evidence was adduced from the state's witness Hogg as follows: "That the defendant began drinking about 8:30 P. M. on the night that the deceased was alleged to have been assaulted."
According to Bill No. 8 the witness Hogg was asked the following question: "About what time was the last time that you knew of his (the defendant) taking a drink?"
The witness replied: "Just a little before the break of day." The same subject is covered by Bill of Exception No. 9.
In Bill No. 15 it appears that the witness, Mrs. Jettie Brown, was asked on cross-examination the following question: "Right smart drinking around your house that night, wasn't there?"
The witness answered that she did not know. The court refused to exclude the question and answer.
In Bill No. 16 it is shown that Mrs. Jettie Brown was asked the following question: "Did you see Monroe Graham drinking there (at the home of the witness) that night?"
The witness replied that she did not see the appellant drinking there that night.
Proof that a witness or the accused on trial was drunk has been received many times. The precedents on the exact questions here presented are meagre.
Reference is made to the case of Hodges v. State,166 S.W. 512, in which the offense was aggravated assault. After announcing that a fault in the charge demanded a reversal, the court expressed the opinion that inquiry of each of the witnesses as to whether or not he had been drinking or was drunk on the day of the occurrence or whether he had been drinking with the appellant or whether the appellant had a bottle of whisky in his store that day and the fight did not take place in the store or near it, was under the facts of the case irrelevant *Page 542 and calculated to be prejudicial to the accused and upon another trial should be omitted.
In the case of Lewis v. State, 33 Tex.Crim. Rep., Judge Davidson used the following language: "The prosecution elicited from appellant, on cross-examination, the fact that he was drinking at the time he disturbed the congregation assembled for religious worship. We are unable to appreciate the force of the objections urged to the admission of this testimony. It threw light upon his mental condition, tended to affect the weight of his testimony, and was the proper subject-matter of legitimate inquiry."
The principle stated was approved in the opinion written by Judge Ramsay in the case of Green v. State, 53 Tex. Crim. 490,110 S.W. 920, from which we take the following:
"We think the rule in any case should be, where a witness is produced and undertakes to give a statement of the facts coming under his observation, transactions to which he is a party and on which the guilt of a citizen is sought to be established, that with a view of testing the credibility of the witness, his opportunity for observation, the state of his memory, the condition of his mind, and all that, it should and would be proper to interrogate the witness as fully as might be necessary in respect to his condition of drunkenness or sobriety."
In Wallace v. State, 65 Tex.Crim. Rep., a case of homicide, the following testimony was so qualified by the court as to exclude it:
"George Henry Scruggs was drunk at that time."
Scruggs had testified that he was not drunk at the time of the homicide, which occurred about midnight, and was not drunk the next morning at about eight o'clock. In writing the opinion, Presiding Judge Davidson said: "The witness had stated that he was not drunk, but had been drinking some the night before, and had denied being drunk on the following morning when the justice of the peace reached the scene of the trouble for the purpose of holding an inquiry. The justice of the peace would have testified, had he been permitted to do so, that the witness was drunk. We are of opinion that this testimony was admissible under the authorities."
In McCarty v. State, 107 Tex.Crim. Rep., the accused was on trial for the murder of Ernest Gibson. Appellant offered several witnesses to prove that Gibson was drunk at the time of the alleged offense and that they had seen him drunk several times during the same afternoon. In dealing with the subject, the court used the following language: *Page 543
"In our opinion Mr. Branch correctly states the rule to be that —
" 'For the purpose of testing the memory of the witness and his capacity for correct observation, and to affect the weight of his testimony, it may be shown by the witness or by others if necessary that the witness was drunk when the matters about which he testified occurred.' Branch's Ann. P. C., sec. 43."
The text is supported by Lewis v. State, 33 Tex. Crim. 618,28 S.W. 465, and many other cases.
In the case of Roberts v. State, 35 S.W.2d 175, the subject was dealt with in the following language: "That the accuracy of recollection of events or transactions is impaired by intoxication, or that it at least tends to impair it, is generally recognized. See Corpus Juris, vol. 23, sec. 1770. The impaired condition of the mind, either from a temporary cause, such as intoxication, excitement, fright, physical pain, or from the infirmities of old age or other infirmities, is deemed a proper subject of inquiry by the court for the consideration of the jury in weighing the testimony of individuals. It is not deemed sound to conclude that the temporary mental impairment which may confuse the mind of an individual would be an impeachment of moral integrity before or after the temporary impairment had ceased."
As stated in the original opinion, at the residence of Mrs. Jettie Brown there was an all-night party on the night of the tragedy. The appellant's participation in the party and the drinking of intoxicants by him and his companions was thought by the trial court and by this court upon the original hearing to be a proper subject of disclosure to the jury to the end that they might intelligently weigh the evidence.
In Wharton's Criminal Evidence, 10th edition, vol. 2, p. 1722, sec. 917, the following statement is found: "Conduct, actions, and general behavior of the accused, immediately preceding the homicide, are relevant to show that he was armed and in a vicious humor."
In the case of State v. Hill, 49 Amer. St. Rep., 316, the Supreme Court of Louisiana used the following language:
"It was the duty of the state to establish the malicious homicide of the deceased, at the hands of the accused, beyond a reasonable doubt; and if, in making that proof, the drunkenness of the defendant was developed, it was a circumstance for the consideration of the jury, along with other proven facts of the case, in determining the felonious intent of the homicide. But it does not follow that it was the duty of the state to make proof of a negative, by showing beyond a reasonable doubt that *Page 544 the defendant's state of intoxication was of a degree not to interfere with his judgment and intelligence, or preclude the possibility of his entertaining malice toward the deceased. The trial judge properly declined to give the requested special charge, and the accused is without grounds of complaint."
Many decisions exhibit the disposition of the courts in the United States to take the view opposed to that of the English courts on the subject of persons charged with crimes who are shown to have been intoxicated at the time the offense was committed. The English courts have rejected such condition as a defense to the crime. In our country the courts and the legislatures have gone far in favor of making intoxication a mitigating circumstance, and most of the authorities deal with that phase of the law. See article 36, P. C., 1925. The facts in the instant case present the question in a different angle, namely, the right of the state to prove as a circumstance bearing on the mental condition of one accused of crime the fact that at the time of the alleged crime he was under the influence of intoxicating liquor. There are many cases where the accused was a witness that proof that he had been drinking was received, and some as illustrated above where he was not a witness.
In the murder statute, article 1257a, P. C., it is stated in substance that the state and the defendant are privileged tointroduce all relevant facts surrounding the killing, togetherwith all relevant facts and circumstances going to show thecondition of the mind of the accused at the time of thehomicide, which may be considered by the jury in determiningthe punishment to be assessed. See Cyc. of Law Proc., vol. 12, p. 618, sec. 5; Graham v. State, 51 S.W.2d 401; Whatley v. State, 117 Tex.Crim. Rep.; McDaniel v. State,119 Tex. Crim. 442. It is thought that the action of the accused approximately at the time of the homicide in drinking whisky would be a relevant fact as part of the res gestae. Whether so or not, it seems clearly to be a relevant fact which the jury might consider in determining the state of mind of the accused at the time the homicide took place. That the consumption of whisky has some effect upon the mind of the individual who drinks it is not only self-evident but verified by text-writers upon the subject. See Herzog's Medical Jurisprudence, p. 528, sec. 720, et seq. It has a varying effect upon different persons, ranging from slight exhilaration to total loss of the faculties.
Conceding that the drinking of whisky occurred at a time practically coincident with the striking of the fatal blow, according to the state's testimony, it seems that perforce of the statute mentioned above, the use of whisky by the accused was *Page 545 one of the facts available to the jury in reaching a conclusion touching the state of mind of the appellant. The motion for rehearing is overruled.
Overruled.