Phelan

Appellant and two other persons were accused by information of feloniously and burglariously entering a building, with the felonious intent of committing larceny therein. The defendants pleaded not guilty, and two of them demanded separate trials; and appellant was tried separately, and the jury found him guilty of burglary in the first degree. He moved for a new trial, which was denied, and from the order denying his motion for a new trial, and from the judgment, he appeals to this court.

The main contention of appellant here is, that the court erred in giving the following instruction to the jury: “As to intoxication, I charge you that voluntary intoxication or drunkenness is no excuse for the commission of a crime. Intoxication is only permitted to be given in evidence for the purpose of throwing light upon the intent, motive, or purpose which the person may have had in doing the act complained of. Evidence of drunkenness can only be considered by the jury for the purpose of determining the degree of the crime, and for this purpose it must be received with great caution.”

The portion which we have Italicized is repugnant to what precedes it, and likewise repugnant to section…