Nickens v. State

100 S.W.2d 363, 131 Tex. Crim. 510, 1936 Tex. Crim. App. LEXIS 647

• Court: Court of Criminal Appeals of Texas
• Decided: December 9, 1936
• Docket: No. 18811
• Status: Published

Opinions

CHRISTIAN, Judge.

The offense is burglary; the punishment, confinement in the penitentiary for two years.

The place of business of J. C. May was burglarized on the night of December 15, 1935, and jewelry and other property taken therefrom. The entry into the building was made by breaking a plate glass window. Mr. May testified that after the burglary he observed some blood near the broken window. The night watchman testified that on the night of the burglary he saw a man walking away from Mr. May’s store. On the same night officers arrested appellant at the home of Mrs. Audrey Bates, which was near the store of May. Appellant was in possession of some of the property that had been taken from Mr. May’s store. There was blood on appellant’s hands and clothing.

Testifying in his own behalf, appellant neither admitted nor denied that he committed the. burglary. He said he had a venereal disease and on the day of the burglary a physician had injected some medicine in his arm. He did not know what kind of medicine it was. The treatment caused him great pain and he drank about a quart of whisky to secure relief. He testified, in part: “The only-reason I can give the jury for not remembering anything that happened is that I was just so drunk that I didn’t know anything.” Again, he testified: “I didn’t know anything because they gave me so much of that dope and whisky both I was plumb crazy. All of that taken together, together with my gonorrhea, caused me to be mentally incompetent for that time.”

In the charge the court gave appellant the benefit of Art. 36, P. C., which reads as follows:

“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. Evidence of temporary insanity produced by such use of ardent spirits may be introduced by the defendant in mitigation of the penalty attached to the offense for which he is being tried. When temporary insanity is relied upon as a defense and the evidence tends to show that such insanity was brought about by the immoderate use of intoxicating liquor, the judge shall charge the jury in accordance with the provisions of this article.”

Appellant excepted to the charge for its failure to instruct the jury to acquit him if they believed that he was temporarily insane as a result of the combined use of drugs and whisky. We think the exception was not well taken. There is no testimony in the record to the effect that the medicine appellant used as a treatment for gonorrhea was calculated to render him temporarily insane. He testified that he did not know the nature of the medicine. Again, his testimony in its entirety shows that the condition he described resulted from the recent use of whisky.

The judgment is affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.