George C. Clore v. The State, 26 Tex. Ct. App. 624

White, Presiding Judge. It is urgently insisted that the court erred in refusing to give the special instructions requested by defendant upon manslaughter, and in failing to submit in his charge the issue of manslaughter. “Manslaughter is predicated upon adequate cause, and unless adequate cause exists, the homicide will not be reduced from murder although it was committed under the immediate influence of sudden passion rendering the mind incapable of cool reflection.” (McKinney v. The State, 8 Texas Ct. App., 626; Hill v. The State, 11 Texas Ct. App., 456; Neyland v. The State, 13 Texas Ct.

App., 536; Willson’s Crim. Stats., sec. 1018.) In onr opinion there is no evidence in this case tending to show adequate cause. Defendant and deceased had had a previous quarrel just a few moments before, but that had been amicably settled. Defendant invited deceased to get back into his wagon, and, in the language of one of the witnesses, “they appeared friendly when they got back into the wagon.” Ho one knows what occasioned or who commenced the second altercation. P. H. Williams, who was in the wagon with them, says: “Directly, they commenced quarreling and cursing.

They stopped for a little bit, and then I heard the defendant Clore say, T will not take it any longer,’ and I heard the thud of a blow, and I heard the blood gushing out, and deceased pitched forward face downward in the front part of the wagon and expired. He never spoke or made a noise.” In the first difficulty the parties did not come to blows. If in the second difficulty the deceased simply cursed defendant, such conduct would not be adequate cause. (Penal Code, art. 597.) Defendant never claimed that deceased had inflicted pain or bloodshed upon him, and no injuries or bruises appeared upon his person.

When arrested, two days afterwards, several cuts were found in his coat, as though they had been made with a knife, but he himself said that “he never knew that his coat was cut until the morning after the killing.” It is singular that none of these cuts penetrated deep enough to touch or leave the slightest mark upon the person of defendant. As to these cuts the charge of the court was amply sufficient upon the law of self defense. Prom our view of the evidence we concur in opinion with the learned trial judge that there was no manslaughter in thq case, no adequate cause being shown.

It is contended that the court erred in its charge to the jury upon the defense of intoxication as raised by the evidence. That portion of the charge was as follows: “The jury are charged that intoxication produced by voluntary recent use of ardent spirits constitutes no excuse for the commission of crime, nor does intoxication mitigate either the degree or the penalty of the crime.

However, in a case where the defendant is accused of murder, as in this case, the jury may take into consideration the mental condition of the defendant, for the purpose of determining the degree of murder, if the jury should find the defendant guilty of murder under the evidence and the law as given them in charge.” This instruction is in almost the exact language of an instruction held by us to be correct in Charles v. The State, 13 Texas Court of Appeals, 658. Counsel for appellant cite us to Williams v. The State, 25 Texas Court of Appeals, 76.

It occurs to us that there is a general misapprehension of the meaning of the language used in the statute regulating intoxication as a defense to crime. (General Laws, Seventeenth Legislature, regular session, page 9.) We copy the statute as found in Willson’s Criminal Statutes,

section 92. It reads: “Section 1.

Neither 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 the penalty of 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 of murder. “Section 2.

It shall be the duty of the several district and county judges of this State, in criminal prosecutions pending before them where temporary insanity is relied upon as a defense and the evidence tends to show that such insanity is brought about by the inordinate use of intoxicating liquors, to charge the jury in accordance with the provisions of

section one of this act.” (Penal Code, art. 40a; Willson’s Crim. Stats., sec. 92.) We think it clear that the legislative intention was, first, that mere intoxication from the recent use of ardent spirits should not of itself in any case excuse crime. Second. That mere intoxication should neither mitigate the degree nor the penalty of crime. Third. Temporary insanity produced by such use of ardent spirits is evidence which may be used in all cases in the mitigation of the penalty, and also in murder, for the further purpose of determining the degree.

Of itself intoxication is neither a justification, mitigation, nor excuse of any sort for crime. It must go to the extent of producing temporary insanity before it will be allowed to mitigate the penalty, and in murder before it can be considered in determining the degree. This is our understanding of the proper construetion to be placed upon the language of the statute.

In the case in-hand, the instruction complained of is more favorable than the statute, because the court did not limit and restrict the jury to temporary insanity, but allowed them to. take into consideration his mental condition, whatever it might be, in so determining the degree of murder of which he was guilty. We can not conceive that defendant has any just ground of complaint at the charge. It was contended that the court should have charged upon the law of circumstantial evidence. This was not a case of' that character. That defendant, and he alone, killed deceased, there can not be the shadow of a doubt.

The testimony is as positive to the fact as it could well be. Defendant himself said: “I have killed Jim Marion Garrett, and have to leave.” Without discussing the other several supposed errors with regard to the charge, suffice it to say that in our opinion it was a full and sufficient exposition of the law applicable to all the-legitimate phases of the evidence, and we can perceive no error in the refusal of the special requested instructions. Appellant’s first bill of exceptions was saved to the action of the court in overruling his application for continuance.

As to the proposed testimony of the absent witness Deacon, it appears to us to be neither material nor probably true. By the-witness Mollie Clore, defendant’s wife, he expected to prove that when he got to his house, a short while after thb* killing, he was excited, and his clothing was freshly cut, showing the appearance of knife cuts; that he told her of the killing—that he was forced to do it, and deceased was trying to kill him and was cutting at him, and had cut his clothing several times before he, defendant, cut deceased.

It is in evidence that defendant’s house was two and a half or three miles from the place of the homicide. With reference to the cuts in his coat, the statement as to what his wife would swear does not tally with defendant’s own statement to Johnson, the constable, who pursued and arrested him two days afterwards in Kaufman county.

He told Johnson, “he didn’t know when the cuts were made;that he never knew his coat was cut till the morning after the killing.” Under these circumstances we think we would be fully warranted in the conclusion that the proposed testimony as to the cuts in the coat would not probably be true, though it might be admissible as evidence. (Good v. The State, 18Texas Ct. App., 39.) His statements to his wife, however, would not be admissible. “Such declarations were not part of tbe res gestee and come within the category of self serving declarations.” (Good v. The State, supra; West v. The State, 7 Texas Ct.

App., 150; Caldwell v. The State, 12 Texas Ct. App., 302; 48 Ga., 607; Hobbs v. The State, 16 Texas Ct. App., 517.) No error is perceived in the action of the court in reference to the motion for a continuance. Opinion delivered December 19, 1888. Other errors assigned are not maintainable and will not be discussed; we have found none such as would require a reversal of the judgment, and it is therefore affirmed. Affirmed.