Blandford, Justice.
The plaintiff in error was indicted, tried and found guilty of the murder of his wife, Ella Beck, in the superior court of Rabun county. He made a motion for new trial on many grounds, which being denied by the court, he excepted to such refusal, and assigns as error the several grounds taken in his motion for new trial.
The first two grounds in the motion will be considered last.
The third ground was abandoned by the counsel for plaintiff, as ihe same was ruled adversely to them in Dan-forth's case, decided at the last term of this court, 75 Ga., 614.
1. The fourth ground contains a long request to the court to charge the jury, which is argumentative, and in the main correct; but, from an examination of the charge which the court did give the j ury on the points involved in the request, [470] it will be seen that he gave law as favorably to accused as he was entitled to. The latter part of this request should not have been given by the court, under the facts of this case, without qualification, and this constitutes the cream of the request, which is, “ Did he know that he was killing his wife; if not, he was not a person of sound memory and discretion, and it would become the duty of the jury to acquit him.” If the accused was drunk, and in consequence of that drunkenness, he did not know his wife, or comprehend the nature of the act he committed, he would be responsible for the act and be a person of sound memory and discretion within the meaning of the law. If the drunkenness produced a temporary frenzy, madness or unsoundness of mind in the accused, he will not be excused or held irresponsible for the act done by him while laboring under such temporary insanity, madness or unsoundness of mind thus produced, because it is his own voluntary act; he put himself in that condition, and must abide all its consequences.
But if the mania, insanity or unsoundness of mind, though produced by drunkenness, be permanent and fixed, so as to destroy all knowledge of right and wrong, then the person thus laboring under these infirmities would not be responsible. The insanity must be fixed and permanent, and such we understand to be the ruling of this court in Choice vs. The State, 31 Ga., 424. Undoubtedly this was the common law. 1 Hale’s P. C., 32. It is there stated that “ although the simplex" frenzy occasioned immediately by drunkenness excuse not in criminals, yet if by one or more such practices an habitual or fixed frenzy be caused, though this madness be contracted by the vice and will of the party, this habitual and fixed frenzy thereby caused puts the man in the same condition in relation to crimes as if the same were contracted involuntarily at first.” 4 Coke, § 125(a).
Blackstone, in the 4th book of his commentaries, page 26, says, “ As to artificial, voluntarily contracted madness [471] by drunkenness or intoxication, which, depriving men of their reason, puts them in a temporary frenzy, our law looks upon this as an aggravation of the offense, rather than as an excuse for any criminal misbehavior.”
W e think that these principles, laid down by these sages of the law, are as true and correct now as they were when uttered, and are as applicable to the present condition of society.
Our law declares that “ drunkenness shall not be an excuse for any crime or misdemeanor.” Code, §4301.
2. As to the fifth assignment of error, what has been said in reference io the fourth ground applies equally to this. We think that the request contained in this ground was fully covered by the court in his general charge to the jury, and when this is so, the court need not give a request in charge, however proper the same may be, or free from infirmities.
3. The sixth ground complains that the court erred in refusing to allow the accused to prove that Miss Bailey said shortly after the homicide, that Eugene Beck killed her sister (Beck’s wife), but he would not have done it if he had been in his right mind.
We think the court did right to exclude this evidence: first, because it wag immaterial; second, because the opinion of the witness as to the condition of the mind of the accused was not a statement of a fact connected with the transaction so as to form a part of the res gestee. If she had been upon the stand as a witness, she could not have given her opinion without stating the facts upon which it was based.
Blandford, Justice.
The plaintiff in error was indicted, tried and found guilty of the murder of his wife, Ella Beck, in the superior court of Rabun county. He made a motion for new trial on many grounds, which being denied by the court, he excepted to such refusal, and assigns as error the several grounds taken in his motion for new trial.
The first two grounds in the motion will be considered last.
The third ground was abandoned by the counsel for plaintiff, as ihe same was ruled adversely to them in Dan-forth's case, decided at the last term of this court, 75 Ga., 614.
1. The fourth ground contains a long request to the court to charge the jury, which is argumentative, and in the main correct; but, from an examination of the charge which the court did give the j ury on the points involved in the request, [470] it will be seen that he gave law as favorably to accused as he was entitled to. The latter part of this request should not have been given by the court, under the facts of this case, without qualification, and this constitutes the cream of the request, which is, “ Did he know that he was killing his wife; if not, he was not a person of sound memory and discretion, and it would become the duty of the jury to acquit him.” If the accused was drunk, and in consequence of that drunkenness, he did not know his wife, or comprehend the nature of the act he committed, he would be responsible for the act and be a person of sound memory and discretion within the meaning of the law. If the drunkenness produced a temporary frenzy, madness or unsoundness of mind in the accused, he will not be excused or held irresponsible for the act done by him while laboring under such temporary insanity, madness or unsoundness of mind thus produced, because it is his own voluntary act; he put himself in that condition, and must abide all its consequences.
But if the mania, insanity or unsoundness of mind, though produced by drunkenness, be permanent and fixed, so as to destroy all knowledge of right and wrong, then the person thus laboring under these infirmities would not be responsible. The insanity must be fixed and permanent, and such we understand to be the ruling of this court in Choice vs. The State, 31 Ga., 424. Undoubtedly this was the common law. 1 Hale’s P. C., 32. It is there stated that “ although the simplex" frenzy occasioned immediately by drunkenness excuse not in criminals, yet if by one or more such practices an habitual or fixed frenzy be caused, though this madness be contracted by the vice and will of the party, this habitual and fixed frenzy thereby caused puts the man in the same condition in relation to crimes as if the same were contracted involuntarily at first.” 4 Coke, § 125(a).
Blackstone, in the 4th book of his commentaries, page 26, says, “ As to artificial, voluntarily contracted madness [471] by drunkenness or intoxication, which, depriving men of their reason, puts them in a temporary frenzy, our law looks upon this as an aggravation of the offense, rather than as an excuse for any criminal misbehavior.”
W e think that these principles, laid down by these sages of the law, are as true and correct now as they were when uttered, and are as applicable to the present condition of society.
Our law declares that “ drunkenness shall not be an excuse for any crime or misdemeanor.” Code, §4301.
2. As to the fifth assignment of error, what has been said in reference io the fourth ground applies equally to this. We think that the request contained in this ground was fully covered by the court in his general charge to the jury, and when this is so, the court need not give a request in charge, however proper the same may be, or free from infirmities.
3. The sixth ground complains that the court erred in refusing to allow the accused to prove that Miss Bailey said shortly after the homicide, that Eugene Beck killed her sister (Beck’s wife), but he would not have done it if he had been in his right mind.
We think the court did right to exclude this evidence: first, because it wag immaterial; second, because the opinion of the witness as to the condition of the mind of the accused was not a statement of a fact connected with the transaction so as to form a part of the res gestee. If she had been upon the stand as a witness, she could not have given her opinion without stating the facts upon which it was based.