The predicate, for admission in evidence of dying declarations was sufficiently made, and the court committed no error in its ruling on this question.
On the cross-examination by the defendant’s counsel of the state’s witness Seabury, the witness was asked the following question: “When he (meaning the defendant) was very much under the influence of whiskey, what was his condition as to being flighty in any way?” An objection by the solicitor was sustained to the question. Without determining whether the evidence sought to be elicited was admissible, it is sufficient to say that the witness answered the question, saying, “I never saw him much under the influence of liquor, however,” and consequently the witness was not competent to testify what was the defendant’s condition when very much under the influence of whisky. While we do not mean to *30intimate that the court ruled erroneously, still, if there was error, it was harmless.
There was no pretense that the defendant was insane from drink, and the question, therefore, as to how often he got drunk, was immaterial and unimportant.
It was competent for the state to prove by the witness Joseph Heninburg that the defendant had, before the killing, threatened to kill the deceased. It was also competent for the state, on the cross-examination of this witness, to ask the witness if he did not tell Nathan, who had been called as a witness in the case, “not to tell anything about this affair.” And it was likewise competent for the state to show by the witness Dr. Jones, in rebuttal, that when he got to the house where the killing occurred, in a short time after it happened, he saw the defendant, and that he was then apparently sober.
The court, in its oral charge to the jury, refused to charge them as to manslaughter in the second degree, and also refused written charges, requested by the defendant, relative to this degree of homicide; that is, manslaughter in the second degree. The law is too well settled to admit of question that drunkenness may never excuse or justify a homicide, yet, when it exists to the degree that it renders the person incapable of entertaining malice or of forming an intent to kill, may reduce the homicide from murder to manslaughter. It is not necessary that the intent to kill should be present to constitute manslaughter in the first degree.
If a person Avillfully or intentionally and unlawfully committ a battery upon another in a manner or with means likely to produce death, and death results from such willful or intentional act, in the absence of malice, this would constitute manslaughter in the first degree, notwithstanding there be no particular intent to kill. The law presumes one to intend the natural and prob*31able consequences of liis act. Written charges requested by the defendant, numbered from 1 to 5 inclusive, were properly refused. If, however, there is a want of intention or willfulness in the doing of the unlawful act causing the death, resulting from a mental status incapable of forming an intent or purpose to do the act, although produced by drunkenness, there is then an absence of an essential element of manslaughter in the first degree. And in such case, the homicide, being unlawful, but neither malicious nor intentional, would be manslaughter in the second degree under the statute. Under the evidence in this case, written charges C, D, and G-, requested by defendant, not being abstract, under the principles above stated, should have been given, and the court erred in their refusal.
For the errors pointed out, the judgment must be reversed.
Reversed and remanded.
Tyson, C. J., and Anderson and McCeeeean, JJ., concur.