Under an information charging the respondent with murder, he was convicted of manslaughter.

The respondent commenced drinking intoxicating liquors between 8 and 10 o’clock A. M. of March 22, 1890. *450The evidence on the part of the people shows that he drank 18 or 20 times before the commission of the crime, which occurred about 2 o’clock p. M. At this time a large crowd had gathered in the saloon, some of whom, including the respondent, had become more or less intoxicated, but no serious disturbance had occurred. Two of the visitors, named Donnelly and Callaghan, became engaged in a scuffle, standing face to face, and having hold of each other’s shoulders. The respondent drew his revolver from his pocket, stepped back a few feet, and, holding his revolver at arms-length, pointing towards the ceiling above Donnelly and Callaghan, said, “Look out, or I’ll shoot.” The saloon-keeper saw this, and told him to put the revolver away. He thereupon lowered the pistol, at the same time looking a little to one side, and fired, killing Callaghan. Donnelly fell to the floor with Callaghan when he was shot, and as he arose respondent fired again, and severely wounded him.

The killing is admitted. The defense attempted was that the respondent had not become voluntarily intoxicated, but that he had become involuntarily intoxicated, and was rendered temporarily insane by some kind of liquor which one of the saloon-keepers had given him. Counsel, in their brief, state their position as follows:

“The theory of the defense was that when the shooting was done the defendant was unconscious of the act,— was insane,' — and that the intoxication producing that condition was caused and brought about by the fraud of Udell, the keeper of the saloon, who, it was contended, gave him, when partly intoxicated, a mixture of some liquid of a fiery nature, which almost immediately produced a condition of great excitement and uncontrollable frenzy.”

This drink was taken by respondent shortly before the shooting. The evidence on the part of the people was *451that it was taken from bottles, and was composed of birch beer and ginger ale, or from a bottle containing “tonic.”

Counsel for respondent offered to show certain experiments that they had caused to be made with ordinary whisky and a liquid which they claimed to be of the same character as the liquid which respondent had taken. This was excluded by the court on the ground that the proof did not show the liquor with which the experiments were made to be of the same character as the liquid drank by the respondent. The evidence offered in this behalf and received was that Udell, a while before the occurrence, had purchased a jug of whisky from one Ward, a liquor dealer, living some miles distant. This evidence came from a witness of the name of Kelly, who testified that he was in Ward’s store, heard Udell call for whisky; that he got a gallon, drawn from a barrel which stood “around in west of the bar;” and that he saw Udell take it away with him. One Hebner then testified that in the latter part of April he went to Ward’s store, at the request of defendant’s attorneys; purchased a half gallon of whisky; that it was drawn from a barrel which stood in the same place where a barrel had stood when he had purchased liquor there about two months before. There was no evidence that the liquor purchased by Udell was taken from the same barrel as that purchased by Hebner, nor that the barrel from which Hebner’s was taken stood in the same place as the other. The respondent testified that he drank a part of it, and either threw the rest away or set it down upon the bar; admitted that he was partially intoxicated, but that he was conscious of what he was doing up to the time of taking this drink. After his examination and cross-examination he was recalled by his counsel, and asked if he had tasted any similar liquor, to which he replied that he had, a few moments before, and that its taste was very *452similar to that which he drank at Udell’s at the time of the shooting, and that he thought it was the same brand. His counsel then renewed the offer to introduce evidence of the experiments above mentioned. It needs no argument to show that this testimony was properly excluded. It had no tendency to prove the identity of the liquor drank by the respondent with that experimented with.

There is no evidence of involuntary intoxication, and temporary insanity caused thereby, although the judge instructed the jury upon that theory of the case. The respondent was unlawfully carrying a deadly weapon. He knew that he was in the habit of getting intoxicated. In drawing the revolver and pointing it towards Callaghan and Donnelly he committed an unlawful act, although he might have had no intention to shoot or to injure either of them. One witness testified that he had seen respondent do acts apparently for the purpose of scaring others. "Whether he knowingly drew his pistol for that purpose, or whether he unknowingly committed the act in a state of voluntary intoxication, he is guilty of manslaughter.

Respondent’s counsel requested the court to charge the jury as follows:

“If you find that at the time of the shooting the defendant was in a condition of delirium, and was not able to reason, and while in that condition entertained and conceived a delusion or fancy that the persons about him were in some way seeking to injure him, and believed it necessary to use the revolver in his defense from the supposed attack, and used it, impelled thereto by said delusion, then he should be held not guilty.”

The only evidence claimed as a foundation of this request is as follows: One witness testified that after the shooting respondent said to those present: “Stand back; don’t come near me.” Another testified that he met him on the street, about 4 o’clock, after the shooting, and *453asked him what the matter was up there, to which he replied:

“There was a little crowd this afternoon, and they undertook to press me, and I had to defend myself.”

This witness, who was a physician, further testified that his mental condition was that of a badly excited man, but that, in his opinion, he was rational at the •time.

Another witness — the officer who arrested him about 6:30 that evening — testified that respondent put his hand to his hip, and said something about his revolver, and that he then went towards the cupboard, saying that he wanted the butcher-knife to defend himself with, and that when he got out of doors he was afraid of being mobbed.

In my judgment, there was nothing in these circumstances, which took place after the shooting, to justify this request, and it was properly refused.

The court instructed the jury that the evidence would not justify a conviction of murder in the first degree, •and that they must acquit him of that charge.

The instructions of the court were very favorable to the respondent. We find no error in the record, and the conviction is affirmed.