On the original hearing the record was made to appear that a plea of guilty was entered by the appellant. By the corrected transcript it is now made to show that the plea was not one of guilty.
Rutherford, an officer, testified in the most positive terms that about the 22nd of October, 1929, the appellant drove his automobile upon a public street while he was drunk. A doctor testified on behalf of the appellant to the effect that on the 27th day of October, he treated the appellant for delirium tremens, a malady due to the chronic use of alcohol which produces a form of insanity. The doctor said that his treatment of the appellant began some five days after the occurrence upon which the present transaction is founded and that he was not able to give an opinion as to the condition of his mind at that time as distinguishing *Page 215 between the right and wrong of the particular happening, but that in his opinion, at the time the appellant came under the observation of the witness he had been suffering from delirium tremens for three or four weeks. The doctor further testified that delirium tremens is a temporary form of insanity, that is, "if they quit drinking it will clear up eventually." "It also depends upon the condition of the patient." The doctor said that the appellant drank nothing while at the sanitarium, which was after the witness began treating him. At the time of the trial the doctor said that he regarded the appellant capable of distinguishing between right and wrong. The officer making the arrest testified to circumstances, that is, to words and acts of the appellant at the time of his arrest, which tended to show his ability to estimate the events at the time.
In bill of exception No. 1, the remark of counsel for the State is criticized as an indirect reference to the failure of the appellant to testify. From the bill it is doubtful whether the remark was shown to have violated the statute. However, as qualified, it appears to have been invited by the remarks of counsel for the appellant. An invited remark cannot be made the basis for a reversal. See Branch's Ann. Texas P. C., Sec. 363, and cases collated, among them, Baker v. State, 4 Texas Crim. App., 223; Martin v. State, 41 Tex.Crim. Rep.,53 S.W. 849.
The indictment is attacked as being based upon an invalid statute, and also as being duplicitous. Both claims are based upon the verbiage of Art. 802, P. C., 1925, wherein the following words appear: "Or in any degree under the influence of intoxicating liquor." The validity of the statute has been upheld, though the words mentioned, that is, "in any degree" have been regarded as surplusage and ought not to be embraced either in the indictment or the charge to the jury. The indictment charges that the appellant was intoxicated and in a degree under the influence of intoxicating liquor. It is not duplicitous. Only one offense is charged. The words "in any degree" are surplusage and should have been omitted from the indictment, but their presence, under the facts of the case, furnishes no ground for a reversal of the judgment.
In his charge to the jury the court instructed upon the law applicable to permanent insanity and temporary insanity due to the recent voluntary use of intoxicating liquor. The evidence is such as to support the propriety of each of the charges. The doctor who testified that the appellant was suffering from delirium tremens said that it was a form of temporary insanity due to alcoholism. However, he did not see the appellant until five days after his arrest. At the time of his arrest, the officer designated the appellant as drunk.
Finding no error in the record, the motion for rehearing is overruled.
Overruled. *Page 216