
    LAWRENCE v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 31, 1912.)
    1. Homicide (§ 294) — Defenses—Temporary Insanity — Duty to Instruct.
    In view of Pen. Code -1895, art. 41, providing that evidence of temporary insanity produced by intoxicants may be introduced in mitigation of the penalty, in determining the degree of murder of which accused may be found guilty, and requiring the courts to so charge, where the evidence raises the question, the court should instruct that, if accused was temporarily insane from the use of intoxicants alone, that fact should be considered in determining the degree of murder, and in mitigating the penalty.
    [Ed. Note.- — Eor other cases, see Homicide, Cent. Dig. § 605; Dec. Dig. § 294.]
    2. Homicide (§ 27*) —Defenses—Insanity.
    One insane from the combined use of drugs and intoxicants, so that he did not know what he was doing, cannot be convicted of homicide.
    [Ed.. Note. — For ..other cases, see Homicide, Cent. Dig. § 43%; Dec. Dig. § 27.]
    3. Homicide (§ 340) — Instructions—Tem-pobary Insanity.
    Error in failing to charge that, if accused was temporarily insane from the use of intoxicants alone, that fact could be considered in determining the degree of the murder, and in mitigation of the penalty, as provided by Pen. Code 1895, art. 41, and that if he was insane from the use of drugs, or of drugs and ardent spirits combined, he should be acquitted, was prejudicial, so as to be reversible; the evidence raising such questions.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 715-720; Dec. Dig. § 340.]
    Appeal from District Court, Matagorda County; Wells Thompson, Judge.
    W. W. Lawrence was convicted of first-degree murder, and he appeals.
    Reversed and remanded.
    Holland & Krause, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
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      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r indexes
    
   HARPER, J.

Appellant was indicted, tried, and convicted of murder in the first degree, and his punishment assessed at imprisonment for life in the penitentiary. .

There are a number of alleged errors assigned in the motion for a new trial, and we have carefully considered them; but none of them present error, unless it be in the grounds alleged in paragraphs 1 to 6, all of which relate to the same matter, presenting it from a different viewpoint in each different ground in the motion.

The court instructed the jury: “In this case, evidence has been introduced, in behalf of the defendant, to show that at the time of the commission of the offense, if any, he was in a state of drunkenness, or intoxication, produced by the recent use of ardent spirits and drugs, or both, and as to this phase of the case you are instructed: That neither intoxication nor temporary insanity of mind, produced by the voluntary recent use of ardent spirits, constitutes in this state any excuse for the commission of crime, nor does intoxication mitigate either the degree or penalty of the crime; but evidence of temporary insanity, produced by such recent use of ardent spirits and drugs, should be considered in determining the degree of murder, if any, of which the defendant may be found guilty, and in mitigation of the penalty thereto attached. However, to be considered at all, the use of ardent spirits and drugs must have been indulged to the extent of producing temporary insanity, which is that degree of insanity that deprives the person of the capacity and power to distinguish between right and wrong as to the particular act charged against him. In other words, ‘temporary insanity’ caused by drunkenness is that Condition of the mind (directly produced by the use of ardent spirits and drugs) where the state of intoxication reaches such a degree that the person becomes incapable of knowing that the act he is doing is wrong and criminal. Where such is the case, he is in a condition of temporary insanity, within the meaning of our statutes.”

Appellant insists that this charge is error, in that it instructs the jury that if he was insane from the use of ardent spirits and drugs it was no defense, but it could be considered only in determining the degree of murder, and in mitigation of the punishment; (2) that appellant was entitled to have an instruction given that if he was insane from such causes he should be acquitted ; (3) that he was entitled to have a charge given that if he was insane from the recent use of ardent spirits alone it should be considered in fixing the degree of murder, and in mitigation of the punishment. In the case of Phillips v. State, 50 Tex. Cr. R. 484, 98 S. W. 869, this court held: “Under article 41, Penal Code, and the decisions interpreting the same, appellant was entitled to a charge on insanity, produced by the recent use of ardent spirits. Appellant having been acquitted of murder in the first degree, it could only go in mitigation of the penalty that the jury might assess against appellant, if they found him guilty of murder in the second degree of manslaughter. This [charge] was not a clear enunciation of the law. Besides this, appellant was entitled to a charge on insanity produced by morphine, or by the combined use of morphine and ardent spirits. In such case, as we understand the law, if he was insane from the use of morphine, or from the combined use of whisky and morphine, to such an extent that he did hot know what he was doing at the time of the alleged homicide, or did not know what he did was wrong, he would be entitled to an acquittal. The charge given was a conglomeration, and not a clear and affirmative charge upon any of the subjects above indicated, but was calculated to confuse and mislead the jury. It certainly did not give them a clear measure as to their duty in the premises. For a discussion of insanity produced by the use of morphine, or morphine and ardent spirits in combination, see Edwards v. State, 38 Tex. Cr. R. 386, 43 S. W. 112, 39 L. R. A. 262; Burton v. State, 46 Tex. Cr. R. 493, 81 S. W. 742. In the Edwards Case, supra, it is held that our statute in reference to ardent spirits and intoxication produced thereby has no relation to insanity produced by morphine or other drugs, or a combination of sueb drugs and whisky; and that the defense under such, proof does not come under our statute with reference to ardent spirits; but if the same produces such insanity as renders a person irresponsible — that is, incapable of knowing and understanding the right and wrong of the particular act which he commits — he is entitled to an acquittal. In the case of Edwards v. State, cited in the above opinion, it is said: “And we go further, and hold that, if his mind was rendered insane by the combined recent use of cocaine and morphine and intoxicating liquors, and that on such account he was not capable of forming the intent necessary to constitute an assault with intent to murder, he would not be guilty of said offense. We believe it is a correct legal principle, where there is insanity produced by other causes in conjunction with the recent use of intoxicating liquor, that an act done in such a state of mind cannot be attributed solely to the recent use of intoxicating liquors. See 1 McClain, Crim. Law, § 159; Roberts v. People, 19 Mich. 401; Terrill v. State, 74 Wis. 278, 42 N. W. 243.” These decisions appear to correctly state the construction placed on article 41 of the Penal Code since its adoption by this court; and the charge of the court in this case is erroneous in not instructing the jury that if he was insane from the use of drugs, or from the use of intoxicating liquor and drugs, he should be acquitted. The statute applies to temporary insanity produced by the voluntary use of intoxicating liquors alone. Upon another trial of this case, the court should instruct the jury that, if appellant was temporarily insane from the use of intoxicating liquors alone, it could be considered by them in determining the degree of murder, and in mitigation of the penalty; but if they found appellant was insane, and such insanity was caused by the use of drugs, or the use of drugs and ardent spirits combined, he should be acquitted. Under the evidence in this case,' appellant would be entitled to have both theories submitted to the jury.

There are no bills of exceptions in the record, and, as hereinbefore stated, none of the other assignments present any error; but we cannot say that the error above pointed out was not such as was probably calculated to injure the rights of appellant. Trial courts should remember that this court, in its decisions, has drawn a clear line of demarcation in this character of case. If'a person is insane, and the insanity was caused by the use of drugs alone, or by the drugs and ardent spirits combined, the common-law rule prevails, and he should be acquitted. If the temporary insanity is caused by the use of ardent spirits alone, then the law, as announced in article 41 of the Penal Code, should be applied to the case. In this case the evidence, perhaps, raises both issues, and both should be submitted under appropriate charges.

Reversed and remanded.  