The defendant was indicted for the murder of Lewis Brinkley; he was tried and found guilty of murder in the second degree, and his punishment assessed at twenty-five years’ confinement in the penitentiary. The defense mainly relied on is that defendant was drunk and insane at the time of the homicide, and did not know right from wrong.
The first error assigned is “ that the court erred in overruling defendant’s motion for a continuance.” This application for a continuance states the facts which the defendant would be able to prove by most of the absent witnesses, their residence, and the diligence used by defendant to procure their attendance at the trial. They were principally wanted to prove that defendant was drunk and crazed by the use of intoxicating liquor at the time Brinkley was killed, and that he was incapable of committing a crime.
An examination of the statement of facts, and of the bill of exceptions taken by the defendant to the ruling of the court on the application for a continuance, sustains the action of the court. We do not believe that defendant was prejudiced by overruling his application for continuance. Quite a number of the witnesses, both of the State and the defendant, testified as to the condition and mental status of the defendant, and as to the extent of his drunkenness at, before, and after the time he fired the fatal shot. The ques*469tion as to his mental status and condition was submitted to the jury, in a charge by the court more favorable to the defendant (if anything) than he was entitled to under the law.
The statement of facts shows that defendant, on the day of the homicide, had been to the city of Waco, in McLennan County, where some of his family had a case in the County Court. He kept sober and peaceable until the case was disposed of; afterwards he took several drinks of whisky, or some other intoxicating liquor. He is easily excited by stimulating drinks; so much so that some of the witnesses testified they believed him insane when under the influence of such stimulants. The witness Welsh, the father-in-law of the defendant, and the man who left Waco with him on the day of the homicide, gave it as his opinion that defendant was very drunk when he reached Smith’s farm ; that he was so drunk he did not know the right road home, and did not know the witness.
The facts in immediate connection with the killing are as follows: Lewis Brinkley, the deceased, was quite an old colored man, confined to his house by age and infirmity. His wife and her two children, a son and daughter, were living with him on the Stanley Smith farm, some three or four miles from the city of Waco. He owned a gray mare. On the evening of September 17, 1877, he was killed by the defendant, under the following circumstances : . The defendant rode rapidly up to the door of the cabin of the deceased, got off of his horse, went in, and asked for a drink of water. The deceased was sitting down in a l*ow chair by the fire, leaning over, eating out of a skillet. A table was between deceased and defendant. The old man told defendant where the cup and water were. After the defendant had taken a drink of water, he told the old man he wanted his best horse, and asked if the gray mare was not the best; and said that the Yankees were coming, and. would kill them all. About *470this time defendant pulled out his pistol, and spoke to Mrs. Brinkley’s little boy, saying to him, “ Go and catch the gray mare for me, G—d d—n you, or I will kill you.” The boy commenced crying, and ran under the bed, telling the defendant that he could not catch the mare. Defendant then turned to old man Brinkley and said to him, “You d—d old gray-headed son of a bitch, you go and catch me the gray mare, or I will shoot your d—d old head off.” Deceased replied, “Master, I can’t go and catch her; she is in the lot, and if you want her, go and get her.” The defendant then stepped one step backward, stooped down, put his pistol under the table and fired; the ball struck the old man on the head, just about his right temple, and killed him instantly. The defendant at once mounted his horse and rode rapidly away.
If the defendant was so drunk at the time he shot the deceased that he did not know what he was doing, certainly the killing of the old man, under the facts in this case, would not be less than murder in the second, degree. The fact of drunkenness may be proved to show the mental status of the slayer at the time of the act, to enable the jury to determine whether the killing is murder in the first or in the second degree. Temporary insanity produced immediately from intoxication does not destroy legal responsibility, or constitute a defense for crime, where the accused, when sane and responsible, makes himself voluntarily intoxicated. The law makes ,men, drunk or sober, responsible for the immediate consequences of their own acts. If a state of temporary insanity follows as the immediate result of drunkenness, the man is criminally liable for what he does in that condition. The application of this doctrine has been discussed at some length by this court in the case of Colbath v. The State, decided at the present term, and the true principle laid down, ante, p. 76.
The next error assigned is that the court erred in over*471ruling defendant’s application for a change of venue. The defendant filed a motion for a change of venue, on the following grounds, to wit:
“1. Because there exists in the county of McLennan, where the prosecution was commenced, so great a prejudice against him that he cannot obtain a fair and impartial trial.
“ 2. Because there is a dangerous combination against him, instigated by influential persons, by reason of which he cannot expect a fair trial.’
This application was supported by the affidavits of seven other citizens of McLennan County, who also attach to their affidavits an extract from a newspaper, marked ‘ ‘ Exhibit A,” the same being an editorial from the Daily Examiner, published in the city of Waco, giving an account of the killing of Brinkley by the defendant, soon after it occurred, as a reason, in part only, of the grounds of said prejudice.
The court examined the persons whose names were to the affidavit supporting the motion touching the facts stated therein. Other citizens of McLennan County were called and examined in regard to the same matters. This was done over the objections of the defendant. The correctness of this action of the court is no longer of doubtful or questionable propriety in this state. We do not believe that the court abused the discretion conferred upon it by law, after hearing the evidence for both sides, to overrule the application for a change of venue. Noland v. The State, 3 Texas Ct. App. 598; Grissom v. The State, decided at the present term of this court, ante, p. 374; Buie v. The State, 1 Texas Ct. App. 452, and cases there cited.
The court did not err in refusing to allow the witness Welsh to answer the following question, to-wit: “ Did the defendant, by reason of his drunkenness, know you, or any one else.” The question was leading. If the state or *472condition of the defendant’s mind at the time of the homicide was a proper subject of inquiry, then, certainly, the interrogatory should have been differently framed. The question embodied a material matter, to-wit, the defendant’s drunkenness, in grading the degree of his offense, if found guilty. We cannot perceive that any injury or prejudice could possibly have resulted to the defendant by this action of the court, for the record shows that the fact sought to be elicited by the question was assumed by the witness Welsh. The question asked assumed that defendant was drunk, which was clearly improper. 1 Greenl. on Ev., sec. 434.
Counsel for the defendant contend that the verdict of the jury is contrary to the charge of the court, and is not supported by the evidence. We think otherwise! The verdict, in the light of the facts, shows that the jury tempered justice with mercy. The verdict and judgment are well supported by the facts, and are in accordance with the principles of law and justice. At least, we believe that the defendant is the last man who ought to complain of them.
The defendant had a fair trial, has been ably defended, and legally convicted. The judgment of the District Court is affirmed.
Affirmed.