The opinion
HEADERS Obi, Judge.
I concur in the disposition of the case as made in the opinion of my Brother Brooks, but do not agree to some of the reasons advanced, and especially I do not assent to that portion of the opinion which declares against that character of insanity known as “irresistible impulse.” I expressed my views in Hurst v. State, 40 Texas Criminal Reports, 378, and I refer to what was there said. The learned judge who tried the case below appears to have concurred in this opinion, and to have aligned himself with the textbooks and the current decisions on this question. It is said, however, that his charge on this subject is confusing, and that is the objection urged against it by appellant. I do not consider it. The charge fully and clearly announced the doctrine of irresistible impulse, as follqws: “Whether the insanity be general or partial, whether fixed or periodical, the degree of it must have been sufficiently great to have controlled the will of the accused, and to have taken from him the freedom of moral action at the time of the commission of the act.” And again: “If it is true defendant took the life of deceased, and at the time the mental and physical faculties were not under the control of defendant, or if some controlling mental or physical disease was in truth the acting power within him, which he could not resist, and he was impelled, without intent, reason, or purpose, he would not be accountable to the law.” And again: “If the mind was in a diseased and unsound state, to such a degree that for the time being it overwhelmed the reason, conscience, and judgment, and the defendant in committing the crime acted from an irresistible and uncontrollable impulse, then it would be the act of the body, without the concurrence of the mind. In such case there would be the want of the necessary ingredient of every crime, the intent and purpose to commit it.” True, in applying the law to the facts in one of the charges given, the judge coupled irresistible impulse with the capacity to know the right and wrong of the particular act, but in another charge he gave the law on this subject as follows, to wit: “If you further believe' * * * defendant, by the continued or recent use of morphine or cocaine, or both, or by the use of either of said drugs combined with whisky, or from any other cause, * * * as heretofore explained to you, was rendered temporarily insane, * * * which created in the mind of defendant an uncontrollable and irresistible impulse to kill deceased, which because of such unsound condition of his mind he had not suffi
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cient reason, judgment and will power to resist, then you will acquit defendant, and so state in your verdict.” These charges I do not think were confusing. One was an enlargement merely of the other. In the one the jury were told that, if the party was insane to a degree that he did not know the right and wrong of the particular act at the time, he would he irresponsible. In the other they were instructed that if the insanity of defendant went to the extent of depriving him of all will power, and he was impelled by an uncontrollable and irresistible impulse to kill deceased, on account of such unsoundness of mind, then he would not be responsible. With these observations, I agree to the affirmance of the case.