Ex parte Evers

DAVIDSON, Judge.

“All prisoners shall be bailable by sufficient sureties unless for capital offenses when the proof is evident.” Bill of Rights, sec. 11. By virtue of this provision the right of bail is secured to all persons in this State who are accused of crime except in cases where the evidence manifests with reasonable certainty that the accused party is guilty of a capital offense. McCoy v. The State, 25 Texas, 33; Ex Parte Coldiron, 15 Texas Ct. App., 464; Ex Parte Smith, 23 Texas Ct. App., 100.

The rule in this State for determining whether or not bail should be granted is as follows: “If the evidence is clear and strong, leading a well guarded and dispassionate judgment to the conclusion that the offense has been committed, that the accused is the guilty agent, and that he would probably be punished capitally if the law is administered, bail is not a matter of right.” Ex Parte Smith, 23 Texas Ct. App., 125. Stated in another form it is thus laid down: “If, upon the whole testimony adduced, the court or judge entertains a reasonable doubt whether the relator committed the act, or whether in doing so he was guilty of a capital crime, bail should be granted.” Same authority, 126. “This rule applies when the case is considered on appeal, the court keeping in mind the prima facie legal presumption that the action of the trial judge was correct.” Same authority.

“To the mind of the tribunal passing upon the evidence the guilt of the applicant of a capital offense may be evident—that is, clear, strong, not admitting of a reasonable doubt—and yet there may be evidence in conflict with such inculpatory evidence. It is not all conflicting, exculpatory evidence that will have the effect to raise a reasonable doubt of guilt and destroy or impair the force of evident proof’ made by inculpatory evidence.” Same authority.

It would not be proper to discuss the evidence in the case, but tested by the above quoted rules a majority of the court are of the opinion that the facts authorize the judgment rendered refusing bail.

The point relied on for reversal is that the relator was drunk at the time of the homicide, and that therefore there must arise a doubt as to whether the proof is evident of a sufficient intent to justify a capital conviction.

If time sufficed it would be interesting to trace the history of judicial decisions and the laws of the different States upon this question. This, however, we can not do, except in so far as it may serve to illustrate and throw light upon the statutory enactments in this State upon the question. At common law voluntary drunkenness was held to be an aggravation of the crime committed. Coke on Lift., 247; The State v. Hendly, 46 Mo., 419. There were two exceptions to this rule; one where the intoxication is without fault on his part, as where it is caused by drugs administered by an unskillful physician, and the other where indulgence in habits of intemperance has produced permanent mental disease, which is called “fixed frenzy.” It has been held in Missouri that evidence of a defendant’s condition in regard to intoxication is inadmissible. The State v. Ramsey, 82 Mo., 137; The State v. Deoring, 65 Mo., 532. In Ramsey’s case, 82 Missouri, 137, the court said: “It is also objected that the court erred in refusing to allow a witness to state whether defendant was drunk or sober. Inasmuch as drunkenness neither extenuates nor excuses crime, the ruling of the court was proper.” Citing The State v. Hendley, 46 Mo., 419; The State v. Deoring, 65 Mo., 530; The State v. Edwards, 71 Mo., 312. This seems to be the settled rule of that State. In some of the States where there are degrees of murder the fact of drunkenness is relevant on the question whether the killing sprang from a premeditated purpose or from passion excited by inadequate provocation. In some States intoxication is relevant on the question of deliberation and premeditation. In all civilized countries it is held that intoxication is no excuse for crime. In fact there can be no excuse for crime. In this State our Legislature has embodied the law with reference to the effect of intoxication produced by voluntary recent use of ardent spirits in a statutory enactment, which is as follows: “Reither intoxication nor temporary insanity of 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 eases of murder for the purpose of determining the degree of murder of which the defendant may be found guilty. Sec. 2. It shall be the duty of the several district and county judges of this State, in any criminal presecution pending before them where 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 liquors, to charge the jury in accordance with the provisions of section 1 of this act.” Gen. Laws 17th Leg., Reg. Sess., p. 9; Willson’s Grim. Stats., sec. 92. This law changes the rule in this State as to the effect of drunkenness upon the degrees of murder. In the case of Ferrell v. The State, our Supreme Court said: “ The correct rule upon the subject is that although drunkenness neither aggravates nor excuses an act done by a party while under its influence, still it is a fact which may affect both physical ability and mental condition, and may be essential in determining the nature and character of the acts of the defendant as well as the purpose and intent with which they are done.” 43 Texas, 508. This court said in Colbath’s case that “while intoxication per se is no defense to the fact of guilt, yet, when the question of intent and premeditation is concerned, evidence of it is material for the purpose of determining the precise degree. In all cases where the question is between murder in the first or murder in the second degree the fact of drunkenness may be proved to shed light upon the mental status of the offender, and thereby to enable the jury to determine whether or not the killing resulted from a deliberate and premeditated purpose.” 2 Texas Ct. App., 395, 396. In Brown’s case this court further said that “after a careful examination of authorities, both English and American, we have held that voluntary intoxication is no excuse for crime; that it will not reduce an act which in a sober man would be murder to manslaughter. The mere fact of the accused being drunk will not miti.gate the criminality of a voluntary killing below the grade of murder. In all cases where the question is between murder in the first and murder in the second degree the fact of drunkenness may be proved to shed light upon the mental status of the offender, and thereby enable the jury to determine whether or not the killing resulted from a deliberate and premeditated purpose.” 4 Texas Ct. App., 291. Again it was said: “ Evidence of intoxication or drunkenness is of vital importance only in the class of offenses in which criminality depends solely, or to a certain degree, upon the state or condition of the mind at the time the wrongful act is done, showing the ability or inability of the mind to form or entertain a sedate or inordinate criminal design.” Gaitan v. The State, 11 Texas Ct. App., 562.

A sufficient number of the decisions of the courts of last resort in this ■State have been quoted to show plainly and clearly what the law was prior to and at the time of the enactment of the statute above quoted. ■It will be seen that the evidence of drunkenness was, in cases of murder, held admissible upon the question of degrees in that offense. The statute was enacted with reference to these decisions because they constituted the law, at the time of its enactment, on this subject. In whatever respect the statute may or does differ from these decisions it must be held to override them, and to that extent change the rule upon the (subject in this State. A casual glance at the said statute manifests the intention of the Legislature to be that intoxication shall not “mitigate either the degree or the penalty of crime.” It is also to be seen that in cases of murder “ evidence of temporary insanity produced by such use of ardent spirits may be introduced by the defendant for the purpose of determining the degree of murder of which the defendant may be found guilty.”

Viewing the statute in the light of the previous decisions, the language •employed therein,- and the evident intention of the legislative mind to be gathered therefrom, we are of the opinion that the only construction that can be placed thereon is that since the passage of that law evidence of drunkenness alone will not be admitted for the purpose of mitigating. murder from the first to the second degree. It is manifest from the statute that in cases of murder the party accused stands before the law to be tried without reference to his mental or physical condition with reference to drunkenness, if the intoxication be caused by the “voluntary recent use of ardent spirits,” and such intoxication does not reach the stage of temporary insanity. This is not a novel question in this •court. This same question came up for decision in Clore’s case, in which this court said: “We think it clear that the legislative intention was, first, that mere intoxication from recent use of ardent spirits should not of itself in any case excuse crime; second, that mere intoxication should neither mitigate the degree nor the penalty of crime; third, temporary insanity produced by such use of ardent spirits is evidence which may be used in all cases in the mitigation of the penalty and also in murder, for the further purpose of determining the degree. Of itself intoxication is neither a justification, mitigation, nor excuse of any sort of crime. It must go to the extent of producing temporary insanity before it will be allowed to mitigate the penalty, and in murder, before it can be considered in determining the degree. This is our understanding of the-proper construction to be placed upon the language of the statute.” Clore v. The State, 26 Texas Ct. App., 629, 630.

It will be observed that the statute has no reference to drunkenness-other than voluntary, nor does it refer to insanity other than temporary, and such only as is produced from such use of “ardent spirits.” The-construction herein placed on this statute is believed to be in strict accord with the legislative will and intention, and the only construction that can be legitimately placed thereon. It is a fundamental principle-that in the construction of a statute the legislative intent, if that intent-can be ascertained, must govern. The design of all rules of construction- of statutes is to furnish guides to assist in arriving at the intention of the Legislature. Willson’s Crim. Stats., sec. 17; Whitten v. The State, ante, 504.

'The statute before us hardly needs construction. Its language is plain and its purpose easy of access, and lies on the surface of the terms employed. The mere fact of intoxication at the time of a homicide will not affect the crime nor the degree of murder in this State as the law now stands. Clore v. The State, 26 Texas Ct. App., 629, 630; Willson’s Crim. Stats., sec. 92.

Temporary insanity was not claimed as an issue in this case in the-trial below, nor is it an issue here as the case is presented to us. The whole of this phase of the case turns upon the question of intoxication produced by the voluntary recent use of ardent spirits, and the effect thereof upon the relator at the time of the homicide. But suppose we. omit the statute quoted from the discussion and view this case from the-standpoint of the law as it was prior to the enactment of said statute, still the result of the case in our opinion must be the same. In passing upon the evidence the court will consider it as a whole, and if by the entire evidence a reasonable doubt of the applicant’s guilt of a. capital offense is not generated the proof is evident and bail should be denied. It is not all conflicts in the evidence that requires the granting of bail. Eor is it all stages of drunkenness that would be considered in determining the degree of murder. The fact that the slayer was intoxicated does not indicate that the homicide was not done in a-•cool and deliberate manner. A drunken party can commit the crime of murder with as much deliberation and in as heartless and cruel manner as the most sober man. The simple fact of intoxication has never been held to exonerate from crime, nor even to mitigate it, nor to become evidence favorable to the party accused if the other facts show coolness and deliberation. Intoxication, which is a wrong in and of itself, has never been held to have the effect of being excusing •cause for another and greater wrong. A party can not be heard to plead his first wrong or crime in justification of a subsequent offense. Ho man will be heard to take advantage of his own wrong. In order to have any effect favorable to the accused, the state of mind caused thereby must be such that his capacity to appreciate the enormity of his crime has been obscured, if not totally destroyed. Under the law as it was aforetime, should we relegate the decision of this case thereto, in so far as the question of drunkenness affects it, we arrive at the same ■conclusion. Under our former decisions it is evident that the trial court arrived at a correct conclusion in this case. Prior to the statute ■of the Seventeenth Legislature the courts of last resort in this State have never gone further than to hold that evidence of intoxication might become essential in determining the degree of murder, or to show a want of criminal intent. It has never been held that because a party was drunk that he would thereby be exonerated from punishment, nor that his crime would be reduced to an inferior degree. Hor has it ever been held that the mere fact of intoxication would demand the granting of bail. Our courts have never held that when a killing is shown to have occurred in such manner as to constitute murder upon express malice, that the fact that the slayer was drunk would reduce his crime to murder of the second degree.

Whether we view this case from the standpoint of the law as it was prior to the passage of the statute or subsequent thereto, our conclusion is the same, and we are of the opinion that the judgment is correct, and it is affirmed and bail is refused.

Affirmed.

Judge Hurt dissents.