Appellant contends that we were in error wherein we upheld the trial court in its charge to the jury relative to the preponderance of the testimony concerning appellant's defense of traumatic insanity. In the court's charge it was provided that such insanity should be proven by a preponderance of the testimony, appellant herein contending that a sufficient quantum of proof would be met if the proof of such only create in the minds of the jury a reasonable doubt. In support of this proposition appellant cites the cases of Haley v. State,12 S.W.2d 225, and Dent v. State, 79 S.W. 525, 46 Tex. Crim. 166, and we quote from the latter case:
"If deceased himself, by his aggression, and on account of his assault, dazed appellant, rendering him unconscious and incapable of understanding and knowing the right and wrong of his actions, this condition springs out of and inheres in the case; and appellant was entitled to a reasonable doubt on the subject. We are aware that the generally received doctrine is that, where defendant sets up an entirely independent defense, and attempts to prove extrinsic facts, not arising out of the res gestae, such as license to do an act, jeopardy, compulsion, negligence of attendants, and insanity, the burden rests upon the defendant to establish such defenses. In this State the rule with reference to the defense of insanity as a general proposition is, that the burden is on the defendant to show this by a preponderance of the evidence; but in all these cases the condition *Page 253 of the mind of the party charged with the offense did not arise during the struggle, but was an independent fact. See Webb v. State, 5 Texas App. 596; 9 Texas App. 490; Leache v. State, 22 Texas Crim. App. 279; Burt v. State, 38 Tex.Crim. Rep.. But this doctrine has never been extended to some state or condition brought about or caused during the difficulty."
To the same effect is the holding in the case of Haley v. State, supra.
It is to be noted herein, however, that appellant's traumatic injury occurred at some time prior to the shooting of deceased; some say but a few minutes, others placing the time at some thirty minutes prior thereto, and while appellant was engaged in a physical encounter with some soldiers, and was knocked down by one of them and became unconscious. He soon recovered therefrom however, and going to his home, he procured his pistol and went into the night club of the deceased's father and fired some four or five shots, one of them striking the deceased and causing his death. We cannot see how this prior trouble with the soldiers had anything to do with the later act of the shooting in the night club. Neither the deceased nor his father were concerned with the difficulty with the soldiers, and such was no part of the res gestae of this killing. No one struck appellant in the night club; the deceased merely seemed to have fled from appellant's shooting, and was shot by appellant through a closed door. We think the cases quoted above should not govern herein under the facts shown, but such defense should come under the general rule of a preponderance of the evidence relative to insanity.
Appellant also complains because the trial court charged the jury relative to the rule of temporary insanity produced by the voluntary recent use of ardent spirits, his claim being that there was no evidence herein that appellant was drunk at the time of the homicide. We quote, in part, Art. 36, P. C., as follows: "Neither intoxication nor temporary insanity of mind produced by the voluntary recent use of ardent spirits shall constitute any excuse for the commission of crime. Evidence of temporary insanity produced by such use of ardent spirits may be introduced by the defendant in mitigation of the penalty attached to the offense for which he is being tried * * *."
However, the appellant objected to the court charging on temporary insanity caused by the recent use of ardent spirits, because "the testimony offered by the State and the defendant *Page 254 showing that the defendant was not intoxicated at the time of the homicide." The testimony does show by witness Arcos that just prior to the appellant's trouble with the soldiers Joe Villegas and appellant offered Arcos a bottle of beer, which he drank, and they drank beer also; they offered him two beers and he drank them. "I would say he (appellant) was feeling good." Soon thereafter Nick (appellant) had an argument with some soldiers across the street, and struck a blow at them, and a soldier hit Nick twice and he fell down and was unconscious. Arcos and Joe picked Nick up and he tried to hit Arcos. Nick walked off straight, not staggering, and soon returned with a gun in his hand. Witness then stated: "Q. You would not say that Nick was drunk? A. I can't say yes, only that he was — you know."
The witness Joe Villegas testified that he and appellant played a game of pool in the evening prior to the killing, and they drank one beer, Arcos not being present with them. "I have seen drunken men and have been with them. From my experience with drunken men, I will say that Nick was feeling good. That night he could not give me a game so we only played one game. * * * When I saw Nick go out I ran upstairs to see if my wife was all right, and he was staggering. When he started up toward the saloon he was staggering a little bit and he went close to the show window and he bumped into it. * * * Nick was feeling pretty good but he was not drunk. I beat him playing pool. He did not give me a good game. "Q. While you were there, as far as you know that is the only liquor he drank? A. That is all I know."
Mrs. Joe Villegas testified: "I did not see Nicholas until later, about eleven o'clock when he came in. He came in there and I had never seen him drunk before, and I don't know whether he was drunk then but he looked very funny and kind of staggered and he went straight to the kitchen and then into his room and then in a few minutes he went to the kitchen and I do not know what happened, but I heard a glass break at the sink and then he went back to his room and then went out. He did not say anything to me. I did not notice the expression on his face because I was scared as he had a gun in his hand."
Appellant himself testified to the fact that he had only taken three beers the afternoon and evening of the homicide. Appellant's voluntary statement, introduced by the State, relative to his drinking, said: "I had a few beers. * * * I went across the street by myself but I might have gone across to dance hall with Joe Villegas. I was pretty well filled up with beer." *Page 255
Mrs. Vega testified about appellant coming into the house before the shooting, taking some alkaseltzer and throwing the glass in the sink and breaking the glass, to hearing him loading his pistol, and showing the same to her, and quoting from her testimony:
"I have seen drunken men. * * * I thought he was full of liquor. About 7 o'clock I did notice something. I saw him very different to what I had seen him before because I never knew him to be a drinking man. * * * I believe he was drinking because I detected something of an odor about him, but he was not drunk."
"There are degrees of intoxication or drunkenness. A man is said to be dead drunk when he is perfectly unconscious, powerless. He is said to be stupidly drunk when a kind of a stupor comes over him. He is said to be staggering when he staggers in walking. He is said to be foolishly drunk when he acts the fool. All these are cases of drunkenness of different degrees of drunkenness. * * * Whenever a man is under the influence of liquor so as not to be entirely himself he is intoxicated." Words Phrases Permanent Edition, Vol. 22, p. 431.
We think the testimony herein was sufficient to call upon the trial court to embody in his charge the defensive right of the appellant as is shown by Art. 36, P. C.
We think this cause was properly affirmed in our original opinion, and the motion is therefore overruled.