Appellant was found guilty of murder, and his *Page 654 punishment assessed at death, from which conviction he prosecutes this appeal.
In the first bill of exceptions it is shown that counsel for the State in his argument stated to the jury, that if the deceased and defendant engaged in mutual combat, and the combat was abandoned by deceased it would be in law the same as if deceased had never engaged in the difficulty at all. Under the facts in this case we do not think this was a very improper statement. The evidence shows that when attention was first called to the parties, they were down on the ground fighting; that deceased got up and ran, when appellant took after him and struck him on the head with a small axe, felling him to the ground. Alfred Barnes interfered and took the deceased into a house to wash the blood off of him, appellant endeavoring to force his way into the house. Barnes ordered him away, and undertook to carry deceased to his home, appellant walking along behind; when without other provocation he again struck deceased with the axe, killing him. Certainly, as qualified by the court, the bill presents no error.
Appellant introduced Dr. Will T. Williams as an expert witness on the issue of insanity. He asked a number of hypothetical questions, to which the witness gave answers, and then the county attorney examined him hypothetically, stating the premises as he considered the evidence, and at the end of one of the questions stating: "Now, doctor, that's the best I can state it, and as far as I am concerned, and as far as the State of Texas is concerned, we are not after doing this fellow anything but justice." Appellant objected to this statement as entirely gratuitous. The county attorney stated: "I will withdraw it then. We want to give him all the hell we can." The court at once instructed the jury not to consider such statement, and again in his written charge so instructed them. The county attorney apologized to the court and jury for having used the expressions. Under such circumstances, as there was nothing in the expressions used tending to show the guilt of appellant, no error is presented. The county attorney at first was trying to be magnanimous by informing the doctor that neither he nor the State wanted any injustice done appellant, and when this was objected to, he, as men often do, in a moment of petulancy, made the other remark. As he apologized to the court and jury for having done so, and the jury was twice instructed that it was improper and should not be considered by them, the hurt, if any, was certainly removed.
Temporary insanity produced by the use of intoxicating liquors will not reduce an offense from murder to manslaughter, and the court did not err in refusing the special charge requesting him to so instruct the jury. By the terms of article 41 of the Penal Code, it was provided, when murder was divided into two degrees, that temporary insanity so produced might reduce the offense from murder in the first to murder in the second degree. In all other instances the evidence was admissible only in mitigation of the punishment, but not to reduce the *Page 655 grade of the offense. Evers v. State, 31 Tex.Crim. Rep.; Clore v. State, 26 Texas Crim. App., 624; Hernandez v. State,32 Tex. Crim. 271; Gaitan v. State, 11 Texas Crim. App., 544; Houston v. State, 26 Texas Crim. App., 657.
Again in charge No. 2 appellant seeks to have the court, among other things, instruct the jury: "And if you believe that defendant's mind was so intoxicated from the recent immoderate use of intoxicating liquors that he was incapable of cool and collected consideration," etc., that fact should be considered in passing on the issue of manslaughter. This is not the law. This is a condition brought about by himself alone, and the court fairly and fully submitted the issue of manslaughter as made by the testimony.
These are all the bills in the record, but in the motion for new trial it is contended that the court should have given appointed counsel more time in which to prepare the case for trial. The court gave all the time the statute requires, and if counsel desired more time, he should have made that fact known at the time the case was called for trial, or if during the trial any state of facts arose which led him to believe that by a postponement of the case he could secure evidence beneficial to his client, he should have asked leave of the court to withdraw his announcement and postpone the case. It is too late after verdict to make such contention, unless some showing is made that since the trial he has learned of testimony which would have been beneficial and attach the affidavits of the witnesses stating the facts to which they would testify. In this case no showing is made that any witness would swear to any fact — in fact the motion for a new trial is not sworn to, nor is the affidavit of any witness attached to it, nor in the motion is the name of any witness given.
No objections were made to the charge of the court at the time it was submitted to counsel and before it was read to the jury. However, in the motion for new trial there is some complaint made as to that portion of the charge presenting the issue of temporary insanity from the recent use of intoxicating liquors. This portion is a fair presentation of the issue and not subject to the criticisms leveled at it. It authorized the jury if they found appellant temporarily insane from the recent use of intoxicants, to take this in consideration in mitigation of the punishment assessed, in case they found appellant guilty. This is all the law authorizes now since murder is only of one degree.
Counsel was appointed by the court to defend appellant, and they did so ably. They write that it is impossible for them to come to Austin at this time, and ask that the submission of the case be postponed until October. We have already postponed the case once at appellant's request, and while we must commend them in that they, without money and without price, are willing to come to Austin and present an argument on appeal, yet as the court must adjourn this week, we do not feel that we would be justified in postponing submission of the case for three months. If, however, after counsel have *Page 656 read this opinion, they still think the record presents error for which the case should be reversed, they will doubtless file a motion for rehearing, and as the death penalty was assessed, and counsel could not come at this time, if they so desire we will hear them on the motion for rehearing.
The judgment is affirmed.
Affirmed.