Otto v. State

80 S.W. 525, 47 Tex. Crim. 128, 1904 Tex. Crim. App. LEXIS 245

Opinion

BROOKS, Judge.

Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of twenty-five years.

The evidence tends to show that defendant was laboring under delirium tremens at the time of the homicide, superinduced by long continued dissipation, and was the user of narcotics of different character, which the medical experts testified did produce delirium tremens; and at the time of the homicide was laboring under said malady to such an extent that he did not know the nature and quality of the act, and did not know the difference between right and wrong. The court applied the law applicable to intoxication produced by the recent use of ardent spirits, but did not charge on above phase of the law. We think the evidence clearly raised the same, and the court should have so charged. Erwin v. State, 10 Texas Crim. App., 700; Ward v. State, 19 Texas Crim. App., 664; Kelly v. State, 20 S. W. Rep., 357; Edwards v. State, 43 S. W. Rep., 112; Cannon v. State, 56 S. W. Rep., 351; Merritt v. State, 40 Texas Crim. Rep., 359. If defendant was crazy, superinduced as stated above, by other agencies than intoxication, this is a distinct defense, and it is the duty of the court to charge on said issue where raised by the evidence. We do not deem it necessary to coHate all the evidence raising this issue. It clearly appears, whether true or not, that appellant's testimony raises the same; and the jury being the judges of the evidence, it is the duty of the court to charge thereon. Failing to do so is error.

The judgment is reversed and the cause remanded.

Reversed and remanded.