100 Ark. 189 | Ark. | 1911
(after stating the facts). Counsel for the defendant urge that the court erred in refusing to give the following instruction requested by them:
“1. The court charges the jury that voluntary intoxication is no defense to this charge, but if you believe from a preponderance of the evidence that at the time of the alleged bigamous marriage the defendant was laboring under such a defect of reason from disease of the mind, regardless of the cause of such mental condition, as not to know the nature of the act he was doing, or, if he did know it, that he was ignorant that he was doing what was wrong, then you will find the defendant not guilty.”
Under our statute no intent is involved in bigamy except to do the thing forbidden by the statute. It is conceded by counsel for the defendant that voluntary drunkenness is no excuse for the crime. They insist, however, that under their testimony the defendant ■ did not have sufficient mental capacity at the time he married the prosecuting witness to distinguish between right and wrong in regard to the act of marriage, and that this defect of reason was a secondary and not a primary consequence of drinking alcoholic liquors. Hence they claim they were entitled to the instruction.
The law on the subject is clearly and tersely stated in case of Reg. v. Davis, 14 Cox, C. C. (Eng. Rep.) 568, as follows:
"Drunkenness is one thing and the disease to which drunkenness leads are different things; and if a man by drunkenness brings on a degree of madness, even for a time, which would have relieved him from responsibility if it had been caused in any other way, then he would not be criminally responsible. .■1= * * man is a madman, and is to be treated as such, although his madness is only -temporary.” Such is the effect of our own decisions. Byrd v. State, 76 Ark. 286; Casat v. State, 40 Ark. 511.
Of course, no degree of mere intoxication will excuse crime. There is, however, another effect of the excessive use of alcoholic liquors which will excuse crime; and that is mental unsoundness brought on by excessive drinking, which remains after the intoxication has subsided. If this latter condition exists to such extent that the mind of the defendant is incapable of distinguishing between right and wrong in regard to the particular act he is charged with doing, he is not liable to punishment. In this case, the testimony of the defendant, if it is to be believed, tended- to show mental unsoundness which was separable from mere intoxication. The court should, therefore, have left it to the jury to determine whether there was any mental unsoundness, which was separable from the intoxication, and, if there was, whether it was sufficient to overthrow defendant's sense of right and wrong at the time he married the prosecuting witness. The evidence adduced by him on this point may have been regarded by the trial court as, very feeble, yet it was sufficient to justify the charge requested.
Counsel for defendant also contends that the court erred in excluding from the jury certain evidence offered by them to the effect that several witnesses present in court would testify, if permitted to do so, that they were long, well and intimately acquainted with defendant — many of them were officers who had had him in custody at such times — and that they would all testify that in each and eve^ instance, and always from a day or two to a week after he had quit drinking and after the intoxicating effects of the liquor had left him, there was produced a diseased condition of the mind, to such an extent that he does not know right from wrong. That defendant, on such occasions, was not drunk but insane. Although the witnesses were not present, and did not have an opportunity to observe the condition of the defendant on the day he married the prosecuting witness, yet the evidence, when considered in connection with the other evidence adduced by the defendant, was intended to show that excessive drinking in the case of the defendant always had the effect to produce a condition of insanity after the immediate effects of his intoxication had left him; and was admissible for what the jury might consider it worth for that purpose.
Other assignments of error are pressed upon us as grounds for a reversal of the judgment, but, in view of another trial, we do not deem it necessary to discuss them.
For the errors in refusing to give instruction No. 1 asked by the defendant and in excluding the evidence indicated in the opinion, the judgment will be reversed, and the cause remanded for a new trial.