
    BALDWIN v. STATE.
    (Court of Criminal Appeals of Texas.
    June 5, 1912.)
    Criminal Law (§ 53*) — Intoxication—Intent^ — Mitigation of Punishment.
    Under Pen. Code 1911, art. 41, evidence of the defendant’s intoxication is properly limited to mitigation of the punishment to be as--sessed, and cannot be considered in determining intent.
    [Ed. Note. — Eor other Oases, see Criminal' Law, Cent. Dig. § 65; Dec. Dig. § 53.*]
    Appeal from District Court, Wharton-County; Wells Thompson, Judge.
    Jim Baldwin was convicted of assault to-murder, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was indicted,, tried, and convicted of the offense of assault to murder, and his punishment assessed at 10 years’ confinement in the penitentiary.

There are but two grounds in the motion,,, one alleging the insufficiency of the evidence, and the other is that the court erred in his charge in limiting evidence of drunkenness to mitigation of the punishment to be assessed, and did not authorize the jury to consider such, evidence in determining whether or not the specific intent to kill existed at the time of the commission of the offense.

The court submitted the law applicable to aggravated assault, as well as assault to murder, and instructed the jury, before they would be authorized to convict appellant of an assault to murder, they must believe beyond a reasonable doubt that the assault was made with the specific intent then and there to kill and murder the prosecuting witness, and if they had a reasonable doubt as to whether such assault was upon malice, with the specific intent to murder, they would acquit of that offense, and inquire whether or not he was guilty of an aggravated assault under the charge given. Our Code (Pen. Code 1911, art. 41) provides that neither intoxication nor temporary insanity of mind, produced by the voluntary recent use of ardent spirits, shall constitute any excuse for the commission of crime; nor shall intoxication mitigate either the degree or the penalty of crime, but such evidence may be introduced in mitigation of the punishment attached to the offense for which one is on trial. The question raised by appellant was decided adversely to his contention in Hernandez v. State, 32 Tex. Cr. R. 271, 22 S. W. 972, Mays v. State, 50 Tex. Cr. R. 165, 96 S. W. 329, and cases therein cited.

The judgment is affirmed.  