
    HAAG v. STATE.
    (No. 5856.)
    (Court of Criminal Appeals of Texas.
    June 25, 1920.)
    1. Criminal law <S=no355 — Evidence of intoxication in mitigation of penalty held improperly excluded.
    Where a defendant convicted of malicious mischief was shown to have been under the influence of intoxicants, it was - error to exclude testimony of the quantity of liquor he had been drinking, and his conduct, in view of Pen. Code 1911, art. 41, providing that, while intoxication will not excuse offense, evidence thereof may be received in mitigation of the penalty.
    2. Criminal law <&wkey;774 — Failure to instruct that temporary insanity from intoxication should be considered in mitigation held error.
    In a criminal prosecution, where there was evidence that defendant was under the influence of intoxicating liquors, it was error to refuse to instruct following the statute (Pen. Code 1911, art. 41) that, while intoxication or temporary insanity therefrom would not excuse the offense, it should be considered in mitigation of penalty.
    3. Criminal law <&wkey;457 — Opinion of extent of defendant’s intoxication admissible.
    The opinion of witnesses was admissible as to the extent of defendant’s intoxication, which would not excuse the offense, but might mitigate the punishment in view of Pen. Code 1911, art. 41.
    4. Criminal law &wkey;l 170(1), 1173(2) — Exclusion of evidence of intoxication in mitigation and refusal to instruct thereon not harmless.
    The exclusion of evidence of defendant’s intoxication, admissible under Pen. Code 1911, art. 41, in mitigation of punishment, and refusal to instruct thereon, was not harmless error.
    5. Malicious mischief <&wkey;l — Willfulness a necessary element.
    A malicious destruction of property must be willful, and if defendant was rendered unconscious or so deranged in mind from being struck on the head as to be incapable of forming the evil intent or acting with legal malice required to make the act criminal, he should not be punished.
    Appeal from Williamson County Court; F. D. Love, Judge.
    Fred Haag was convicted of malicious mischief in injuring an automobile, and he appeals.
    Reversed.
    E. B. Simmons, of Taylor, for appellant. Alvin M. Owsley, Asst. Atty. Gen., for the State.
   MORROW, J.

The appellant was convicted of malicious mischief in injuring an automobile, and punishment fixed at a fine of $25 and confinement in the county jail for 15 days.

The appellant and one Stauffer, while in the house of the appellant, engaged in gaming, and after each of them had been drinking intoxicants got into a quarrel. Stauffer hit the appellant on the head with a hammer, and knocked him down and got on top of him. Appellant called for his gun, which was brought by his wife, and Stauffer fled, leaving an automobile near the house of the appellant. It is the state’s theory that appellant followed Stauffer out of the house, and, failing to overtake him, struck the automobile with an ax, injuring it. This theory is supported by the circumstances, though not by direct evidence. The evidence on behalf of the appellant, given by eyewitnesses, was that he sought to have Stauffer leave the premises and settle the difficulty when he became sober, but Stauffer hit him on the head with a two-póund hammer and got on top of him, and fled when his wife came with a pistol; that appellant could not get up, but was picked up by others, and laid on a cot, and that while there he went to sleep. Afterwards'he got up and went out the back door, and a noise was heard such as would have been caused by injuring the car. He was brought back in the house, his head bathed, and he slept until the following morning. A witness said that when Stauffer left appellant was unconscious, and that it was some SO minutes thereafter when he went outdoors. Appellant described the matter in substance as above, except that he said that he had no recollection of what occurred after he was felled, except a faint recollection of Stauffer being on top of him; that otherwise he remembered nothing that occurred until he awoke on the following morning.

There was evidence that the appellant was under the influence of intoxicants. He sought to show, however, by testimony which was excluded over his objection, the quantity of liquor that he had been drinking, to describe his conduct, and to elicit from those observing it, who were acquainted with the appellant and the amount of liquor he had drunk, opinion that he was in a state of temporary insanity. Upon such testimony as was before the jury on this subject, the appellant sought an instruction in accord with the statute (article 41, P. O.) that neither intoxication nor temporary insanity resulting therefrom would excuse the offense, but that evidence of it might be received in mitigation of the penalty, the statute stating:

“It shall be the duty of the several district and county judges of this state, in any criminal prosecution pending' before .them, where temporary insanity is relied upon as a defense and the evidence tends to show that such insanity was brought about by the immoderate use of intoxicating liquors, to charge the jury in accordance with the provisions of this article.”

The evidence excluded should, in our opinion, have been received. It was admissible under the statute. The opinion of witnesses as-to the extent of the intoxication was available. Stewart v. State, 38 Tex. Cr. R. 627, 44 S. W. 505. The instruction requested should have been given. Lawrence v. State, 70 Tex. Cr. R. 506, 157 S. W. 480; Evers v. State, 31 Tex. Cr. R. 318, 20 S. W. 744, 18 L. R. A. 421, 37 Am. St. Rep. 811; Vernon’s Texas Penal Code, vol. 1, p. 22. The exclusion of the evidence and the refusal of the instruction cannot be regarded as harmless, for the reason that it was within the discretion of the jury to have punished the offense by a lower fine, and to have omitted imprisonment.

The act of the appellant, to become criminal must have been willfully and maliciously done. The court so charged the jury. If the blow upon appellant’s head, which the undisputed evidence shows was received, rendered him unconscious or so deranged his mind that it was not capable of forming the evil intent, or acting with the legal m'alice required by law to make his act criminal, it should not be so punished. The requested charge embodying this principle was refused. Upon another trial, upon similar evidence, it should be given.

The errors pointed out require a reversal of the judgment, which is ordered. 
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