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]*470it 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]*471by 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.
4. The seventh ground complains that the court refused to allow accused to prove by Jeff. Duncan that, on Monday before the homicide, when accused bought a pint of whiskey, he said he “ was going to quit; that was the last drop he ever expected lo drink.” This testimony was wholly immaterial; it threw no light upon the transaction. [472]*472He bought the whiskey to drink, and whether that was the last, and he inténded to stop, in nowise tended to show his guilt or innocence. It was properly rejected.
5. The eighth ground complains of the manner in which the court presented the case to the jury; that he spoke of the momentous issues involved in the case—on the one hand, the good order, peace and security of society; on the other, the life and liberty of the defendant; but the court followed by stating the precise issues involved in the case, and this was done fully and fairly, and the j ury were duly cautioned not to let prejudice, passion or excitement deprive the prisoner of any rights to which he was entitled. The statement complained of did the prisoner no harm. A charge similar to this was approved by this court in Choice's case above referred to.
6. The ninth ground complains of the charge of the court upon the subject of malice. The court correctly instructed that malice was a deliberate intent unlawfully to take life, whether it sprang from hatred, ill-will or revenge, ambi-' tion or avarice, or a mere frenzy of drunkenness. There certainly is no error in this, from the view we entertain of drunkenness.
7. In the tenth ground of the motion for new trial, we think that the error here complained of was settled adversely to plaintiff in error in Danforth's case. See also Loyd's case, 45 Ga., 64 ; Westmoreland's case, Ib., 225; Cartels case, 56 Ga., 463.
8. The eleventh ground complains of certain remarks of the court, which could well have been dispensed with, but they were in no manner calculated‘to hurt or injure the case as made by the accused.
9. In the twelfth ground, complaint is made that the court erred in telling the jury to take the case without any preferences on their part, without any desire to convict an innocent man or to acquit a guilty one, but with the sole purpose of vindicating the law and finding the truth, etc. We can see nothing in this part of the charge complained of. It is the duty of the j ury to vindicate the law.
[473]*47310. The thirteenth ground alleges as error the entire charge of the court.
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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]*470it 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]*471by 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.
4. The seventh ground complains that the court refused to allow accused to prove by Jeff. Duncan that, on Monday before the homicide, when accused bought a pint of whiskey, he said he “ was going to quit; that was the last drop he ever expected lo drink.” This testimony was wholly immaterial; it threw no light upon the transaction. [472]*472He bought the whiskey to drink, and whether that was the last, and he inténded to stop, in nowise tended to show his guilt or innocence. It was properly rejected.
5. The eighth ground complains of the manner in which the court presented the case to the jury; that he spoke of the momentous issues involved in the case—on the one hand, the good order, peace and security of society; on the other, the life and liberty of the defendant; but the court followed by stating the precise issues involved in the case, and this was done fully and fairly, and the j ury were duly cautioned not to let prejudice, passion or excitement deprive the prisoner of any rights to which he was entitled. The statement complained of did the prisoner no harm. A charge similar to this was approved by this court in Choice's case above referred to.
6. The ninth ground complains of the charge of the court upon the subject of malice. The court correctly instructed that malice was a deliberate intent unlawfully to take life, whether it sprang from hatred, ill-will or revenge, ambi-' tion or avarice, or a mere frenzy of drunkenness. There certainly is no error in this, from the view we entertain of drunkenness.
7. In the tenth ground of the motion for new trial, we think that the error here complained of was settled adversely to plaintiff in error in Danforth's case. See also Loyd's case, 45 Ga., 64 ; Westmoreland's case, Ib., 225; Cartels case, 56 Ga., 463.
8. The eleventh ground complains of certain remarks of the court, which could well have been dispensed with, but they were in no manner calculated‘to hurt or injure the case as made by the accused.
9. In the twelfth ground, complaint is made that the court erred in telling the jury to take the case without any preferences on their part, without any desire to convict an innocent man or to acquit a guilty one, but with the sole purpose of vindicating the law and finding the truth, etc. We can see nothing in this part of the charge complained of. It is the duty of the j ury to vindicate the law.
[473]*47310. The thirteenth ground alleges as error the entire charge of the court.
Having duly considered the entire charge delivered by this able and upright judge to the jury, we think it full and a fair presentation of the law bearing upon the issues in the case; that the accused has had his case fairly tried, and the law as favorably expounded in- his behalf as he has any right to demand.
11. The first and second assignments of error are that the verdict is contrary to law and contrary to the evidence. All that we can say is, as it appears to us from the facts in the record, the plaintiff in error killed and murdered his wife, without cause or provocation, while in a state of drunkenness produced and brought on voluntarily. There is no excuse or palliation of this offered, and the verdict of the jury was more merciful than he had a right to expect.
Judgment affirmed.
See Carr vs. State, (present term.)