Hower

The defendant was found guilty of the offense of assault with intent to commit murder, upon an information charging him with the offense of an assault with a deadly weapon with intent to commit murder, and was adjudged to suffer imprisonment in the state prison therefor. He appealed from the judgment and from an order denying his motion for a new trial, and the cause was ordered transferred to this court for hearing and decision, after decision in the district court of appeal for the third district.

1. Error is alleged in the matter of certain instructions given upon the subject of drunkenness. There was some evidence tending to show that the defendant was to some extent. under the influence of intoxicating liquor at the time of the commission of the offense. The defendant testified that during the last four years “the drink habit had held him absolutely, that when under the influence of liquor he did not know right from wrong, that when the craving and > desire for liquor came over him, he could not resist it, and that on the day in question he commenced drinking, and remembered nothing about any trouble with the prosecuting witness.”

Upon defendant’s request, the court gave to…

I concur in the judgment of affirmance, because I think that the error committed by the trial court which is hereinafter noticed probably had no prejudicial effect upon the minds of the jury. But, in my opinion, the district appellate court was right in holding that the trial court committed an error in instructing the jury that “evidence of drunkenness can only be considered by the jury for the purpose of determining the degree of crime.” This is in direct conflict with section 22 of the Penal Code, and takes away from that section its most important feature. The section is as follows: “No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition. But whenever the actual existence of any particular purpose, motive, or intent is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive, or intent with which he committed the act.” This language is not confined to a “degree” of a crime, but embraces any “species,” or kind oí crime, whether divided into degrees or…