Wingo

Defendant appeals from the judgment upon his conviction of attempted burglary. (Pen. Code, § 664.)

His first contention is that the trial court erred in giving the following instruction: “The intent with which an act is done is shown by the circumstances attending the act, the manner in which it is done, the means used, and the soundness of mind and discretion of the person committing the act. [f] For purposes of the case on trial, you must assume that the defendant was of sound mind at the time of his alleged conduct which, it is charged, constituted the crime described in the Information.” (Italics added.) Defendant urges that this instruction improperly stated to the jury the effect of intoxication upon his ability to form a specific intent.

In order to place the propriety of this instruction in proper perspective we set out the trial court’s instruction which was given immediately after the complained-of instruction. This instruction read as follows: “In the crime of attempted burglary of which the defendant is accused, a necessary element is the existence in the mind of the defendant of the specific intent to commit, burglary which includes the intent to commit a…