
    State v. Castello.
    1. Evidences credibility of witness as affected by intoxication. While the intoxication of a witness at the time of the transactions of which he testifies does not destroy his credibility, it undoubtedly impairs it; but if his testimony is corroborated,’or his recollection of the transaction appears to be distinct and clear, he is entitled to belief.
    2. Instructions: Refusal to grant: no prejudice. There is no error in refusing instructions asked, when, in view of the instructions given, they are not necessary to guide the jury in the proper determination of the case.
    
      3. Manslaughter: intention cot defendant: instruction. Upon an indictment for murder, the defendant asked the court to instruct the jury that his intentions in approaching the deceased must be presumed to be lawful, unless shown to be unlawful, and the court refused to give the instruction. Held that, if there was error in the ruling, it was i cured by a verdict for manslaughter only, which did not imply any unlawful intention in approaching the deceased.
    4. Homicide: not palliated by feebleness of deceased. A homicide cannot be excused or palliated on the ground that the manslayer was ignorant of the fact that his victim’s feeble condition wa^ such as to render him unable to resist or survive the violence inflicted.
    5. -: self-defense: insteuction. There is no error in an instruction which, in effect, directs the jury that a homicide will be excused, where it appeared necessary to the accused, as an ordinarily prudent man, to take the life of the deceased in his own self-defense.
    6. Manslaughter: definition of: self-defense. Self-defense excuses homicide; it has nothing to do in determining its degree. Hence it has no place in the definition of manslaughter, or of any other degree of homicide.
    
      Appeal from Henry District Court.
    
    Tuesday, December 11.
    The defendant was convicted of manslaughter, and sentenced to imprisonment in the penitentiary for thre'e years. He now appeals to this court. The facts of the case are stated in the opinion.
    
      Woolson <& Babb, for appellant.
    
      Smith McPherson, Attorney-general, for the State.
   Beck, J.

I. The deceased, one Salberg, and a comrade, having been drinking together, were, at the time of the occurrences resulting in the homicide, in an intoxicated condition. The maudlin actions of the deceased provoked taunts of derision from three young men, or boys, as they are called in the testimony, who were near by, which excited his anger and resentment. He ran towards them, climbing over an intervening fence, threatening them or inviting them to fight. One of the’ young men, defendant, approached the deceased, and a conflict ensued. The preponderance of the evidence is to the effect that defendant struck the first blow. No weajsons were used by defendant. He struck the deceased two or three times, who, before the last blow, turned away and fled to the fence. The last blow was given him when he was at the fence. These blows were with the fist, and were all received 'by deceased about the temple and side of the.head. The defendant’s evidence is to the effect that the deceased, before the blows, had taken from the ground a stone. But we are satisfied that the preponderance of the evidence fails to show that lie used it or attempted to use it. Immediately after the last blow the deceased fell, and was soon dead. He is shown by the evidence to have been a man of feeble, though of rather large, frame. A post mortem examination revealed the facts that he was far gono with consumption, and that there were extravasations of blood in the brain. There were two or three contusions discovered upon the side of the head. The testimony authorized the conclusion that death resulted from the rupturing of a blood vessel of the brain.

II. This statement of facts is sufficient to introduce the consideration of the alleged errors complained of by defend- ant, which all relate to the instructions given to ’ 0 the Uiry. J •>

The comrade of the deceased, named Clowson, who was a witness for the state, was shown to be in an intoxicated condition at the time of the fight, and admitted if in his own testimony, which was reasonably clear and direct. He testified in effect that he liad a distinct recollection of the affair. In directing the jury as to the effect of the witness’ condition upon his credibility, the court used the following language:

“The fact that a witness present at the death of Salberg, and testifying as to facts, was under the influence of liquor to any extent, does not affect his credibility, if you find that, at the time be was testifying, be distinctly remembered tbe facts as they occurred. It is tbe truth that tbe law seeks, and tbe condition of tbe witness is immaterial, except as a means of determininig bis ability and desire to know and tell tbe truth. And, if tbe witness now remembers tbe facts, and you believe be tells them truthfully, it does not matter what was bis condition then.”

We think tbe instruction is correct. It does not follow that tbe capacity of observation and the powers of memory are destroyed by intoxication, which is not to tbe degree producing stupor. While it must be admitted that intoxication does not destroy credibility, it undoubtedly impairs it. But, if tbe evidence of one who was intoxicated at tbe time of tbe occurrences of which be testifies is corroborated, or bis recollection of tbe transactions appears to be distinct and clear, be is entitled to belief. This is tbe purport of tbe instruction just quoted. Tbe district court gave to tbe jury other proper directions applicable to tbe case, which enabled the jury to determine tbe weight to be given to Clowson’s evidence.

III. Tbe defendant asked an instruction, tbe refusal of which is now made tbe ground of complaint, which does not present a rule materially different from tbe instruction above quoted. Another instruction contains directions as to tbe effect of tbe contradictions to Olowson’s evidence by other witnesses in discrediting it. Tbe instructions given in effect directed tbe jury to extract tbe truth from all the testimony, and to reject such part of it as appeared to be erroneous. Tbe jury would certainly understand that they should find tbe facts to accord with tbe preponderance of tbe proof. Tbe instruction in question was not demanded to guide them to this result.

IY. Tbe defendant requested tbe court to instruct the jury that defendant’s intentions in approaching tbe deceased must be presumed to have been lawful, unless shown to have been unlawful. Tbe instruction . • . is immaterial m view of tbe verdict for man-slaughter. "Whatever may have been the intention of defendant in approaching deceased at the time of the conflict, if they were in fact lawful and peaceable, they would not excuse the unlawful homicide resulting from violence occurring after they came together. It may be that, had the verdict been for a homicide of a higher degree, prejudice from the refusal to give the instructiion might have resulted.

Y. The defendant requested the court to instruct the jury that they must be satisfied beyond a reasonable doubt that death resulted from the blows inflicted by defend-an^ au£]101qze them to convict. And another instruction asked was to the effect that, if there were two theories in relation to the cause of death, one consistent with innocence and the other with guilt, and each equally in harmony with the evidence, the jury should adopt the theory of defendant’s innocence. The thoughts of these instructions, so far as they should have been presented to the jury, are expressed in an instruction given, announcing the rule of reasonable doubt. The jury would not have failed to entertain such a doubt, had the evidence, upon the points contemplated by these instructions, been of the character stated therein.

YI. An instruction asked by defendant was to the effect that, if, on account of the diseased condition of Salberg, a blow of less force caused his death than would have been required to take the life of a healthy manj defendant cannot be held guilty, unless he knew of the true condition of the health of deceased. The instruction was properly refused, and the jury were informed, in substance, that the condition of Salberg’s health would not excuse defendant. Surely, it cannot be claimed that a homicide may be excused on the ground that the man-slayer was ignorant of the fact that his victim’s feeble condition wvas not such as to enable him to resist the violence.

YII. An instruction upon the doctrine of self-defense is understood by counsel to mean that homicide can only be excused when it is reasonably necessary to take life for the defense of the accused. But the whole instruction unmistakably conveys the thought that, it such necessity appear to the accused, or would appear to an ordinarily prudent man, it is sufficient.

VIII. Counsel for the defendant insist that an instruction defining the crime of manslaughter leaves out of view the qmesti011 of self-defense as an excuse for thehom-icide. Self-defense excuses a homicide; it does not indicate its degree. If it is established, there can be no conviction for the offense in any degree. Hence it has no place in the definition of manslaughter, or any other degree of homicide. The nature of the defense, and the evidence necessary to support it, were stated in other instructions. The court was not required to repeat them in connection with the definitions of the different degrees of crime arising from the killing of a human being.

IX. While the' evidence in some degree is conflicting, it sufficiently sujiports the verdict.

We have considered all the points discussed by counsel, and reach the conclusion that the judgment of the district court ought to be

Affirmed.  