¶1The appellant was convicted of the crime of murder in the second degree.
¶2There was no error in allowing the introduction of the pistol, after the witness had stated that it was either the one which defendant had on him, or one just like it. In addition, the defendant himself afterwards identified the pistol as his.
¶3There was no error in overruling the objection to the question to the defendant, when on the stand as a witness, on cross-examination, “Where did you get that Swiss rifle?” It was permissible to test the accuracy of the witness’ statement that he was too drunk to remember anything.
¶4There ivas no error in that part of the court’s oral charge marked (T). “Malice, in law, does not necessarily mean hate or ill will, but is defined as any unlawful act willfully done, without just cause or legal excuse. It is that mental state or condition which prompts the doing of an unlawful act without legal justification or extenuation.” — Patterson v. State, 156 Ala. 63, 67, 68, 47 South. 52, 54; Boulden v. State, 102 Ala. 80, 83, 86, 15 South. 341.
¶5There Avas no error in that part of the oral charge marked (2), in Avhich the court referred to and explained the Daughdrill Case, 113 Ala. 7, 21 South. 378. Holley v. State, 75 Ala. 14, 18.
¶6*43There was no error in that part of the oral charge marked (3). As to what was the criticism indulged in by counsel, the record does not show; and we must presume that there was such criticism as to have called for the remarks of the court. It is not a charge on the effect of the evidence, but simply a statement of the undeniable proposition that there is no impropriety in a police officer’s going to a man’s house, even though the man should be sitting on his porch in a drunken condition, and that, at any rate, that fact could not furnish any justification for shooting the policeman at another place 30 minutes later.
¶7Appellant contends that the presence of the policeman, and the anger ensuing, might have “accelerated the effects of the whisky on his mind and tended to disturb his mental equilibrium,” and thus be proper matter for the jury to consider “in determining the mental state of the defendant 30 minutes later.” This argument loses sight of the effect of drunkenness as a defense in homicide cases. The fact that a man, when drunk, is more easily made angry, or excited, does not furnish any defense; but the question is only whether his faculties have been so benumbed as to render him incapable of entertaining the intent necessary to constitute the crime. The fact that the policeman had been at his house a half hour before the commission of the crime could not affect his ability to be conscious of his acts. — Chatham v. State, 92 Ala. 47, 49, 9 South. 607; Brown v. State, 142 Ala. 289, 291, 296, 297, 38 South. 268; Heinburg v. State, 151 Ala. 27, 30, 43 South. 959.
¶8The judgment of the court is affirmed.
¶9Affirmed.