It can not be questioned but that the defendant committed the homicide. His defense is that it was accidental and unintentional, and that he was so drunk at the time that he was not responsible for the act. It is insisted that there are material errors in the charge of the court. We' have examined the charge with care, comparing it with the evidence, and as a whole we can perceive no such error in it as demands a reversal of the judgment. It defines murder, and instructs the jury that under the evidence they can not convict the defendant of murder in the first degree. It does not define manslaughter or charge the law concerning that degree of homicide, nor do we think it was necessary under the facts of this case to do so. There was nothing in the evidence to demand or warrant a charge upon manslaughter. It instructs the jury fully, and we think correctly upon the law of murder in the second degree and negligent homicide.
In regard to the defense that the killing was accidental and unintentional; it tells the jury that “If the defendant did shoot and kill the deceased, but if the killing was accidental or unintentional, you will acquit him, or, if you have a reasonable doubt as to whether it was accidental or not, you will acquit him.” This was presenting this phase of the defense in a most favorable manner for the defendant.
*661Upon the defense of drunkenness the charge of the court is silent. Defendant’s counsel requested a charge as follows: “Voluntary drunkenness furnishes no excuse or justification for crime. However, if you find that the defendant did take-the life of Sam Foster by the means charged in the indictment, and if you find at the time of his so doing he was so drunk as not to know what he was doing, and was unable to form the criminal intent necessary to commit the crime charged, you will acquit him. But any amount of voluntary drunkenness which does not reach the status above indicated would not furnish any excuse or justification for the commission of the •crime.” This requested charge was refused, by the court, and the action of the court refusing it was excepted to at the time by defendant, and is insisted upon as error for which the conviction should be set aside.
There was no error in refusing the charge requested. It is provided by statute “ that intoxication nor temporary insanity of mind produced by the voluntary recent use of ardent spirits shall constitute any excuse in this State for the commission of crime, nor shall intoxication mitigate either the degree or penalty of the crime; but evidence of temporary insanity produced by such use of ardent spirits may be introduced by the defendant in any criminal prosecution in mitigation of the penalty attached to the offense for which he is being tried, and in cases of murder for the purpose of determining the degree of murder of which the defendant may be found guilty.” (Acts 17th Leg., chap. 14, p. 9.) This statute is but the declaration of what the law was at the time of its enactment, as will be seen by reference to authorities. (3 Greenlf. Ev., secs. 6-148; 1 Bish. Cr. Law, secs. 397-416; Whart. on Hom., sec. 586 et seq.; Clark’s Cr. Law, 14, note; Jeffries v. The State, 9 Texas Ct. App., 598; Gaitan v. The State, 11 Texas Ct. App., 544.)
We are aware that the charge requested and refused in this •case is almost an exact copy of the one which was given in Scott v. The State, 12 Texas Court of Appeals, 31, and which was objected to by the defendant. In that case the charge was held to be correct, and properly so because it was favorable to ■the defendant, and he could not be heard to complain of it. There are some expressions in that opinion which might lead iio the conclusion that, in the opinion of this court, there might be such a state of voluntary drunkenness as would excuse a *662homicide committed by a person in such state. We do not so-understand either the statute or the common law.
Opinion delivered May 23, 1883.It has never been held, that we are aware of, that voluntary drunkenness was a perfect defense in cases of homicide. As-far as the cases upon the subject have gone is to admit evidence-of such drunkenness for the purpose of reducing murder from the first to the second degree—never as a complete defense. In Colbath v. The State, 2 Texas Court of Appeals, 391, it is said, “Temporary insanity, produced immediately by intoxication, does not destroy responsibility, where the person, sane and-responsible, made himself voluntarily intoxicated. While intoxication per se is no defense to the fact of guilt, yet, when the-question of intent and premeditation is concerned, evidence of it is material for the purpose of determining the precise degree. In all cases where the question is between murder in the first or murder in the second degree, the fact of drunkenness may be proved, to shed light upon the mental status of the offender, and thereby to enable the jury to determine whether or not the killing resulted from a deliberate and premeditated purpose/ It is well settled that the mere fact of being drunk will not reduce a homicide from murder to manslaughter; it can only be regarded in determining between the two degrees of murder. (Farrer v. The State, 42 Texas, 265; Farrell v. The State, 43 Texas, 503; Gaitan v. The State, 11 Texas Ct. App., 544.)
We think, however, without further reference to authorities,, that the statute we have quoted very plainly establishes the-doctrine in this State that in no case will temporary insanity produced by the voluntary recent use of ardent spirits be-allowed as a perfect defense; that is, such a defense that will acquit the accused of any offense committed while in such a state of mind.
We have examined other errors, assigned, but we have found no-error for which the judgment of conviction should be disturbed,, and it is therefore affirmed.
Affirmed,