Defendant was convicted of burglarizing a saloon at night, and taking from thence some bottles of beer. The defense was delirium tremens and drunkenness.
The court charged on this defense as follows: "You are charged that intoxication produced by the voluntary recent use of ardent spirits constitutes no excuse for the commission of a crime. However, in this case, if you find and believe that the mind of the defendant, at the time he entered said house, was in such a condition from drunkenness, or from insanity produced by the use of ardent spirits, that he (the defendant) could not form a fraudulent and criminal intent, then you will acquit the defendant; but any amount of voluntary drunkenness, which does not reach the status above indicated, would not form a justification for the commission of the act." The defendant objects to the last part, as emphasizing and impressing, with needless repetition, upon the jury to what extent the drunkenness must extend, before the jury can consider it in justification, and as being incorrect. The counsel is correct in saying that the statute regulating drunkenness has nothing to do with the insanity known as "delirium tremens" or "mania a potu." Such insanity, called by Mr. Wharton "settled insanity," to distinguish it from "temporary insanity," has always been held to be an absolute defense to crime. No man intends or desires to be under the influence of delirium tremens. It is rather shunned than coveted, and is always an involuntary result, and generally caused by an abstinence from liquor, and no man voluntarily assumes it for the purpose of covering guilt. 1 Whart. Crim. Law, sec. 48.
In United States v. Drew, 5 Mason, 28, where Drew, the captain of a ship, after weeks of intoxication, suddenly ceased to drink, and became affected with delirium tremens, and while in this condition killed his mate, Story, J., declared that criminal responsibility would not attach where the delirium is the remote consequence of voluntary intoxication caused by the antecedent exhaustion of the party arising from gross and habitual drunkenness. "Had Drew committed the crime while he was in a fit of intoxication, he would be liable to conviction for murder. As he was not intoxicated, but insane from an abstinence from liquor, he is not guilty. The law looks to the immediate, and not the remote, cause."
In United States v. Clarke, 2 Cranch, Circuit Court, 158, the court told the jury, that if they should be satisfied that the prisoner, at the time of committing the act charged in the indictment, was in such a state of insanity, not produced by the immediate effects of intoxicating drinks, as not to be conscious of the moral turpitude of the act, they should find him not guilty. But it is laid down by the statute of this State that temporary *Page 226 insanity produced by the recent use of intoxicating liquors does not destroy responsibility, when defendant, sane and responsible, made himself voluntary intoxicated. Penal Code, art. 40a; Clore's case, 26 Texas Ct. App. 624[26 Tex. Crim. 624]; Evers' Case, 29 Texas Ct. App. 539[29 Tex. Crim. 539].
Mr. Wharton well says there can be no doubt on this point, either on principle, policy, or authority. Whart. Crim. Law, sec. 49. A man who voluntarily places himself in such a position as to become incapable of distinguishing between right and wrong, is simply responsible for any injury resulting therefrom, as any one would be who does an act likely to produce death, though at the time having no specific intent to take the life of any one.
Temporary insanity, spoken of in the statute, therefore differs from settled insanity in the causes producing it and its consequence's. Practically, they may be the same; that is, both may come under the definition of not being able to distinguish right from wrong, and being unconscious of the nature of the act done, yet the consequences are different. In the first, responsibility never ceases; in the other, there is none.
Now, the statute regulates the consequences of temporary insanity by allowing it, in all cases of crime, to be proven in mitigation of the punishment; but it is not allowed to excuse the crime, and in murder it is also admissible to reduce the degree. The charge of the court is therefore right, that any intoxication short of insanity is not to be regarded by the jury for any purpose; but if the drunkenness reaches insanity, that is, if the defendant becomes, under the influence of drink, incapable of distinguishing between right and wrong as to the particular act done, then the jury may regard it in giving a lower punishment, but not in acquittal of the person. This question is eliminated in this case, because, if guilty, the defendant could not have received a lower punishment than was inflicted. Testing the charge by the foregoing views, we find that it does not distinguish between settled and temporary insanity, but practically instructs the jury, that if the drunkenness reaches insanity, whether from the recent or remote use of intoxicants, they must acquit. While this is an error, it operates for the benefit of the defendant, and he can not complain.
Upon the facts of the case, we are not disposed to remand it. Defendant had been drinking during the day, and at night broke into the saloon, and carried bottles of beer into the field and drank it, and was on another trip, when he got hitched in the fence, and was discovered. We think there is sufficient testimony to sustain the verdict, and the judgment is affirmed.
Affirmed.