Appellant asks leave to file a second motion for rehearing, a copy of which accompanies his application. Same has received our careful consideration. It is to be regretted that reference was made, in the charge of the trial court in this case, to irresistible impulse in connection with the charge on insanity, — an instruction which has been held to have no place in a charge on insanity; but appellant is wholly mistaken in thinking our refusal of his motion implies any approval of the attempt to submit the law of irresistible impulse in such connection. What we concluded and think we said was, in substance, that while the court in the latter part of paragraphs *Page 113 ten and eleven did erroneously refer to and include the doctrine of irresistible impulse, still in other parts of the charge on insanity as contained in paragraph eleven, the court correctly told the jury, first, that they should acquit appellant if they believed upon a preponderance of testimony that from drink, dope or marihuana, or any or all of these, appellant was temporarily insane, and that his mind was so affected as that he did not understand the nature and quality of the act of killing deceased; also that the jury should acquit if they found from a preponderance of the testimony that appellant's mind at the time of the killing was in such diseased and unsound condition as that for the time being his reason, conscience and judgment where overwhelmed to such an extent that he did not know such killing was wrong and criminal, and would subject him to punishment. Having so told the jury in said paragraph, the fact that the court then again in the latter part of said paragraph added the erroneous proposition that the jury might acquit if they found from a preponderance of the evidence that the killing was upon irresistible impulse, and charge as is quoted in our opinion on rehearing, thus giving to the accused more than he was entitled to under the law, — should not be held reversible error. Appellant is mistaken in thinking that the court put upon him the burden of showing by a preponderance of the evidence that he was actuated by an irresistible impulse, before they could acquit. Such is not the case. For two grounds and reasons set out in paragraph eleven, the court told the jury they might acquit, and then, as above stated, added the further ground and reason that they might acquit if they believed he acted upon an irresistible impulse. No better rule exists than that the whole charge must be looked to, and the fact that some part of same is wrong will not call for a reversal unless there be danger that the jury were misled, or the cause of the accused injured by the erroneous charge. This rule is applicable here. We said in our opinion on motion for rehearing that said erroneous part of the charge was wrong, but inasmuch as it in effect gave to the accused an opportunity to be acquitted upon a ground not recognized, the judgment should not be reversed therefor.
We would not feel inclined to hold the verdict against insanity wrong and against the weight of the testimony simply because it was shown that appellant had syphilis, an admitted predisposing cause of mental malady. This was simply to be considered by the jury in connection with the other testimony.
We express our appreciation of the faithful service to appellant of his appointed counsel, who have given to the case *Page 114 every effort possible, without other pay than comes from the feeling of a conscientious discharge of their duty as officers of the court.
Feeling that the case was correctly disposed of, we must deny the application for leave to file a second motion for rehearing.
Denied.