HURT, Presiding Judge.
This is a conviction for perjury. Appellant, in obedience to subpoena, went before the grand jury of Mitchell County and was there interrogated in regard to gaming at a certain place. He swore that there had not been any gaming at said place on the preceding Saturday night, when in fact there had been a game of “poker” played at said place on that night, and in his presence. His testimony before the grand jury was assigned for perjury, and for this the conviction was had. Upon the trial there was evidence tending strongly to prove that appellant was drunk when the cards were played, and also when he was before the grand jury. The court gave no instructions to the jury upon the question of drunkenness, and counsel for appellant requested the following charge: “You are instructed, that if you believe from the evidence that the defendant made the statements before the grand jury which are alleged to be false, still if the jury believe from the evidence that the defendant was in such a mental state or condition, produced by the long-continued and excessive use, aided by recent use, of intoxicating liquor, as not to have been conscious of what he was doing, then you should find
the defendant not guilty.” “You are instructed, that if the defendant did not know said statements made by him before the grand jury were false at the time he made them, he is not guilty of perjury, and if you have a reasonable doubt that he knew said statements were false at the time he made them, you will find him not guilty.” The instructions were refused. In regard to the subject of drunkenness, in relation to this case, two phases are presented: (1) Will the statutes of this State prevent the jury from looking to the fact that appellant was drunk when he swore falsely before the grand jury ? (2) Can the fact that appellant was drunk when the game of cards was played in his presence be considered by the jury for any purpose P
We are not to be understood as holding that appellant was in fact drunk at either of the times referred to. If there is evidence reasonably tending to prove that he was, the court should or should not have submitted this matter to the jury, this depending upon the construction to be placed upon the statute. If permitted by the statute, then the attention of the jury should have been directed to the mental condition of appellant by proper instructions. If this is not permitted, the court below did right in falling and refusing to mention the matter at all in the charge. What then is the statute ? It reads: “ Neither intoxication nor temporary insanity of the mind produced by the voluntary recent use of ardent spirits shall constitute any excuse, in this State, for the commission of crime, nor shall intoxication mitigate either the degree or penalty of crime; but evidence of temporary insanity produced by such use of ardent spirits may be introduced by the defendant in any criminal prosecution in mitigation of the penalty attached to the offense for which he is being tried, and in case of murder, for the purpose of determining the degree of murder for which the defendant may be found guilty.” Penal Code, art. 40a; Willson’s Crim. Stats., sec. 92. This statute has been so construed as to exclude drunkenness in all cases, in all offenses, unless the drunkenness extends to temporary insanity, so construed that temporary insanity thus produced can be used only for the purpose of mitigating the penalty, except in the crime of murder. Ex Parte Evers, 29 Texas Ct. App., 539. At common law temporary insanity produced by the voluntary use of ardent spirits would neither excuse, reduce, nor mitigate crime. Insanity thus produced must be permanent to be excuse for crime. With other ingredients, perjury is a false statement, either written or verbal, deliberately and willfully made. In this crime there is an essential element, viz., the mental status. The mind must be deliberate, and the false statement must be intentionally, willfully made. The accused must know the statement to be false, and with this knowledge he must deliberately make it. Now, then, suppose the accused was temporarily insane from the voluntary use of ardent spirits, could he willfully and deliberately make a statement, either false or true ? If he was permanently insane, could he
make, willfully and deliberately, any statement ? If the insanity be temporary, is he not insane for the time being, and therefore incapable of deliberation ? What is the difference between temporary and permanent insanity, as affecting the capacity for deliberation ? Who will affirm that an insane man can willfully and deliberately commit an act or make a statement, being at the time insane ?
The opinion in the Evers case excludes this insanity as a defense to the charge of perjury, unless for the purpose of mitigating the penalty. Under that opinion, such insanity can not be considered or relied upon to disprove the allegation in the indictment, that the defendant “ did willfully and deliberately” make the statement. We had thought that the burden was upon the State to prove that the statement was willfully and deliberately made, and that any disturbing cause, whether insanity, intoxication, or anything else, might be taken into consideration by the jury when passing upon the condition of the mind. For what purpose ? To solve the question whether the statement was willfully and deliberately made.
But wé are told, “ Ita lex scripta est.” Let us see if the law is so written. Drunkenness shall not excuse or mitigate crime. This is law and common sense. But the excuse or mitigation is not needed until crime has been shown, and, when this is done, there should not be either in law or reason any excuse for crime. At common law,, it was no excuse, mitigation, or reduction. The common law was right; and our statute, in permitting even temporary insanity, preceded by the voluntary use of ardent spirits, to reduce the penalty for crime, is a departure from the correct principle. Why ? Because, if indeed the defendant committed the crime for which he stands convicted, there should in law and reason be no excuse for his crime or reduction of the penalty. To make the application to the particular case, if appellant willfully and deliberately made a false statement before the grand jury, as charged in the indictment, though insane from the use of ardent spirits, or from any other cause, there should be no excuse, and he should be punished, whether the insanity was temporary or permanent. But is it probable or possible that an insane man, whether his insanity be temporary or permanent, could willfully and deliberately make a statement ? Will it be affirmed that a person whose reason is dethroned—who is insane—could deliberate at all, or could rationally do anything ? Evidently, no person would assert such a proposition. But we are told in the Evers case that he should be punished—that he would be guilty of perjury. If this be so, then, without any sort of question, the crime of perjury would be deprived of essential elements, and the crime should be defined, thus: “ Perjury is a false statement, either in writing or verbal, made under the sanction of an oath,” etc. To restate: If temporary insanity, produced by the use of
ardent spirits, renders it morally impossible for the person so affected to deliberately and willfully make a statement, and if such a condition of the mind can not be looked to in passing upon the fact that the statement was so made, then we say that deliberation and willfulness are eliminated from the definition of perjury, or temporary insanity or drunkenness has been substituted for these elements that are otherwise essential.
The simple question is, can a person be guilty of perjury in this State unless he willfully and deliberately makes a false statement ? If he be sane, he can not; but if insane from the use of ardent spirits, he can—if the opinion in the Evers case be correct. It is insisted, however, that the law is so written, and that we must be governed by the statute, and that the statute says that neither drunkenness nor temporary insanity produced by the voluntary use of ardent spirits shall excuse crime. So says the statute, and so we say, and so was the law in every enlightened jurisprudence long before our statute. For we have seen that, at common law, neither intoxication nor temporary insanity produced by the voluntary use of ardent spirits was permitted to excuse crime, to mitigate crime, or to reduce the penalty attached to a crime. Our statute is more liberal to the accused than the common law. It permits temporary insanity to reduce the penalty. This was not so at common law. At common law permanent insanity produced by the use of ardent spirits was not an excuse for crime, but was a complete defense establishing that there was no crime, though some of the old books call it an excuse. At common law, and in every State in the Union, neither drunkenness nor temporary insanity from the use of intoxicants was permitted to excuse crime. This was the law in every State, so far as my research extends, and this was the law in Texas when the last act was passed, as firmly fixed in the criminal jurisprudence of the American States as if inserted in their statutes, and whenever the subject of drunkenness, etc., is involved in a criminal case, and it is relied upon as a defense, the decisions state the rule. The text books and reports discuss the subject, and invariably the rule will be found fully stated, and as strongly stated against the accused as it is done in our statute.
What say the books on this subject ? Before consulting the authorities, we desire to state that the evidence in this case fails to shoiv temporary insanity, but tends strongly to show that appellant was drunk when the game was played and when he was before the grand jury. So that the authorities cited will be confined to drunkenness, leaving out the question of insanity. When can drunkenness be used by the accused upon trial for an offense ? In what character of offense and for what purpose can the fact that he was drunk at the time of the supposed commission of the crime be used by the accused ?
1. As to the character of the offense, it is when the condition or status of the mind is an essential element of the offense. Colbath v. The State,
4 Texas Ct. App., 76; Brown v. The State, Id., 275; McCarty v. The State, Id., 461; Payne v. The State, 5 Texas Ct. App., 35; Golliher v. Commonwealth, 2 Duv., 163; The People v. Odell, 1 Dak., 197; 46 N. W. Rep., 601; Cartwright v. The State, 8 Lea, 376; McIntyre v. The People, 38 Ill., 514; Roberts v. The People, 19 Mich., 401; The People v. Harris, 29 Cal., 678; The People v. Eastwood, 14 N.
Y.,
562; The People v. Walker, 38 Mich., 156; and Lancaster v. The State, 2 Lea, 575. Where the offense charged embraces deliberation, premeditation, intent, and the like, evidence of intoxication may be important. The People v. Harris, 29 Cal., 678; The State v. Johnson, 40 Conn., 136; The State v. Welch, 21 Minn., 22; The People v. Robertson, 2 Parker, Crim. Rep., 235; Pigman v. The State, 14 Ohio, 555; Hopt v. The People, 104 U. S. 631, and hundreds of other cases. We desire to call especial attention to Hopt v. The People, 104 United States, 631, and to Haile v. The State, 11 Humphrey, 154. In the Hopt case, the Supreme Court of the United States, after having stated the common law rule, to-wit, “At common law, indeed, as a general rule, voluntary intoxication affords no excuse, justification, or extenuation of crime committed under its influence,” say: “ But whenever the actual existence of any particular purpose, motive, or intent is, a necessary element to constitute any particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive, or intent with which he committed the act.” In Lancaster v. The State, supra, it is held, upon a trial for murder in the first degree, or an assault to commit murder in the first degree, drunkenness to any extent is relevant, though it may not be so excessive as to render the accused incapable of deliberating, because it may have excited him, and produced a state of mind unfavorable to premeditation and deliberation. In Haile’s case,, supra, the same proposition is stated, and the opinion delivered in that case is the ablest one we have examined upon the subject. It was written by that_great jurist, Nathan Green, whose opinions are authority not only in America, but are cited with approval by the highest courts of England. We cite from the opinion in the Haile case the following: “ When the question is, whether a party is guilty of murder in the first degree, it becomes indispensable that the jury should form an opinion as to the actual state of the mind with which the act was done.” This is so in perjury. “All murder in the first degree (except,” etc.) “must be perpetrated willfully, deliberately, and maliciously, and premeditatedly,” and so perjury must be committed willfully and deliberately. “The jury must ascertain, as a matter of fact, that accused was in this state of mind when the act was done.” And so, in perjury, the jury must ascertain that the statement was willfully and deliberately made. “ Any fact, therefore, which will shed light upon this subject may be looked to by them, and may constitute legitimate proof for their consideration. And,
among other facts, any state of drunkenness, being proved, is a legitimate subject of inquiry as to what influence such intoxication might have had upon the mind of the offender in the perpetration of the deed.” “We know that an intoxicated man will often, upon a slight provocation, have ins passions excited, and rashly perpetrate a criminal act. Now it is unpliilosophical for us to assume that such a man would, in the given case, be chargeable with the same degree of deliberation and premeditation that we would ascribe to a sober man, perpetrating the act upon a like provocation.” “The question in such case is, what is the mental status ? Is it one of self-possession, favorable to fixed purpose, by deliberation and premeditation, or did the act spring from existing passion, excited by inadequate provocation, acting it may be on a peculiar temperament, or upon one already excited by ardent spirits ? In such case it matters not that the provocation was inadequate, or the spirits voluntarily drunk; the question is, did the act proceed from sudden passion, or from deliberation or premeditation ? What was the mental status at the time of the act, and with reference to the act ? To regard the fact of intoxication as meriting consideration, in such a case, is not to hold that drunkenness will excuse, but to inquire whether the very crime which the law defines and punishes has been in point of fact committed.”
We can add nothing to this reasoning. It is absolutely unanswerable. We call attention to the opinion in this case, also, for the purpose of showing the character of crimes in which the jury should look to the fact that the accused was drunk, and crimes in which they should not.
We come now to the second question, viz.: For what purpose can drunkenness be proved and considered on the trial of cases in which the question is relevant? We answer by an excerpt from the opinion of Judge Reese in the case of Swan v. The State, 4 Humphrey, 136, to-wit: “To inquire and ascertain whether the very crime which the law defines and punishes has been in fact committed.” If in point of fact the very crime which the law defines and punishes has been committed, drunkenness and other disturbing cause will not and should not excuse the criminal. We have seen that at common law, and in all the States, with or without statutes, the rule is absolutely fixed that drunkenness will not excuse crime; that temporary insanity produced by the use of ardent spirits will not excuse crime; and we find that in all the cases upon the subject this rule is stated with approval. Yet we find that the rule is so construed as to permit the jury to look to the fact that the accused was drunk, though not temporarily insane, nor extending to that condition as would deprive the accused of the capacity to willfully and deliberately commit the act. We know of but one State in which the contrary is held—Missouri. In New York the opinions are in conflict.
But we are told in the Evers case that no other construction can be
placed upon our statute than that contained in that case. Let us examine this proposition. Our statute simply declares the common law, with this exception: at common law temporary insanity, produced by the voluntary use of ardent spirits, was not permitted to reduce the penalty; under our statute it may. This is the only difference, and the change in the statute is not against, but favorable to, the accused. How, then, can the change alter the construction which has been placed upon the common law rule by almost all the courts ? At common law, neither voluntary drunkenness nor temporary insanity produced thereby would excuse crime. This is so under our statute. They are precisely the same to this extent. What construction has been placed upon the rule at common law ? This we have seen from the cases cited. What construction should be placed upon our statute ? What is the rule ? The statute, being in affirmance of the common law, is to be construed as was the rule at common law. This is the received doctrine in such cases. Baker v. Baker, 13 Cal., 87; Miles v. Williams, 1 P. Wms., 252; Arthur v. Bokenham, 11 Mod., 150; Suth. St. Const., 291. The last author says: “A statute in affirmance of a rule of the common law will be construed as to its consequences in accordance with such law.”
A few remarks with reference to the effect of the construction of the statute contained in the Evers case. In effect, the rule there asserted, is that neither temporary insanity produced by the voluntary use of ardent spirits, nor voluntary drunkenness, can be used for the purpose of determining the condition of the mind in any offense, except in case of murder. What a startling proposition. In this case the charge is perjury. To constitute this offense the accused must willfully and deliberately, without any agitation, make a false statement. ■ These elements are made essential to the crime, and without either there is no crime. It is held in the Evers case, that a person can, while temporarily insane, deliberately, willfully, and calmly make a false statement, or that the insanity takes the place of these elements; that, though drunk, he can so make a false statement. This last may be true, but being a question of fact, drunkenness may be considered by the jury so as to determine whether in fact the statement was so made. We know that if the person was insane he could not calmly and deliberately make a statement, and we also know that drunkenness is a condition very unfavorable to a calm, willful, and deliberate act. But the opinion excludes both as defenses, and the consequence of the rule is, that in every crime in which the state of the mind is an essential element the law eliminates this element from the crime and substitutes temporary insanity, produced by the use of ardent spirits or voluntary drunkenness. Is it a fact that in every offense in which the state of the mind is by law made an essential element the statute has taken from such offense this element ? There are many of such offenses, and if the opinion in the Evers case be correct, what a far-reaching statute.
Let us now apply the rule announced in the Evers case: A. is on trial for perjury. The evidence makes it absolutely certain that, at the time the accused made the statement, he was temporarily insane from drink. The court charges the jury that they must believe that the statement was calmly, willfully, and deliberately made. What a farce, and what a travesty on common sense. Why not charge the law as announced in the Evers case, to-wit: “If you believe that when defendant swore falsely he was temporarily insane from voluntary use of ardent spirits, you will find him guilty ? ’’ Again, the evidence shows that defendant was drunk, but not insane, and in that case the court should instruct them that, to convict, they must believe that defendant, without agitation, willfully and deliberately made the statement, and in passing upon that fact they must not look to the fact that he was drunk. By the way, evidence of drunkenness, unless it produces temporary insanity, under the Evers case, should be rejected, for temporary insanity, so produced, except in case of murder, when the contest is between express and implied malice, can be urged for no other purpose than to reduce the penalty. We have nothing to add upon this branch of the case.
What should be the rule ? When the nature of a crime is made to depend by law upon the peculiar state and condition of the mind of the accused, at the time, and with reference to the act done, drunkenness, as a matter of fact, affecting some state of the mind, is a proper subject for the consideration of the jury, the inquiry in such a case being, what is the mental status ? And in all cases in which the status of the mind is an essential element in the crime, the court should not only admit evidence of drunkenness, but instruct the jury that they should (in a case like the present), in passing upon whether defendant, without agitation, willfully and deliberately made the false statement, look to all the evidence, including that relating to drunkenness, in connection with the other testimony tending to show the condition of the mind of the accused. This we held to be the duty of the trial court in Reagan’s case, 28 Texas Appeals, 227.
Counsel for appellant asked a charge upon the subject, which was refused. The charge was more favorable to the State than the law requires. It required the jury to believe that the intoxication had deprived defendant of consciousness of what he was doing. This assumed the rule to be, that the degree of drunkenness must be such as to deprive defendant of the capacity to deliberate—to do an act willfully and deliberately. This is not the rule. Read the unanswerable argument of the jurist Nathan Green, in the Haile case. The requested charge served to call the attention of the court to the subject, and a proper charge should have been given. There is evidence tending to prove that, when the game was played, defendant was present, but drunk. The court should have instructed the jury that they might consider this evidence, with all other
testimony in the case, for the purpose of determining whether the defendant knew that the game was played, or whether at the time he made the statement he remembered having seen the game played, if in fact he did see it.
The judgment is reversed and the cause remanded.
Reversed and remanded.