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 of crime, whether divided into degrees or not; it applies to every crime of which the existence of a particular intent or purpose is a necessary element. It is true that this court in two or three cases used the expression that drunkenness could be considered only in determining the degree of a crime, but it was used only in murder cases where the degrees of the crime depended on a particular intent or purpose; and as it was said in People v. Vincent, 95 Cal. 425, [30 P. 581], "the degrees of murder are based upon the `intent' — the deliberation or premeditation — with which the act is done; and therefore it is not improper, in trials for unlawful homicide, to instruct the jury that they can consider intoxication only for the purpose of determining the degree of the crime, because that is telling them in substance that they may consider it in determining `the purpose, motive, and intent' with which the act was committed." But that the court did not intend to declare the invariable rule that drunkenness can be considered only to determine the degree of crime clearly appears in the case of the People v. Phelan, 93 Cal. 111, [28 P. 855]. In that case the defendant was charged with burglary, which crime consists in entering a building with intent *Page 648 to commit larceny or some felony. The defendant introduced evidence showing that he was greatly intoxicated at the time of the alleged commission of the crime, and did not have, and could not have had, any intent to commit a felony in the building; but the court instructed the jury — as the jury were instructed in the case at bar — that "evidence of drunkenness can only be considered by the jury for the purpose of determining the degree of the crime." Of course, this instruction in the Phelan case was absurd, because the degrees of burglary are founded on the time of the commission of the crime, whether in the daytime or night-time, and have no reference to the intent of the party charged; but the case was reversed for the giving of the instruction, because it took away from the jury the right to consider the drunkenness of the defendant in determining the intent or purpose with which he entered the building. The principle would have been the same if burglary had not been divided into degrees at all. The court say: "As given, the instruction withdrew from the consideration of the jury evidence which the code says a jury may consider in determining the intent with which an act is committed; . . . the instruction that the jury could not consider that evidence for any other purpose than that of determining the degree of the crime is clearly erroneous, and for that error the judgment appealed from must be reversed." And in People v. Vincent, 95 Cal. 425, [30 P. 581], the court, commenting upon the Phelan case, said: "Burglary consists in entering a house . . . `with intent to commit grand or petit larceny, or any felony'; and it is apparent to the dullest apprehension that a drunken man might unlawfully enter a house without any intent whatever to commit larceny or felony. And it is equally apparent that a jury, in determining with what intent he entered, might well consider the fact that he was intoxicated; but the `degree' of the crime would have nothing to do with it. The court, in delivering the decision in People v. Phelan,93 Cal. 111, [28 P. 855], did not consider it necessary to state that they were not dealing with a murder trial." We think, therefore, that in the case at bar the court clearly erred in using the language which we have considered; and any instruction in that abstract form should never be given. Whenever an essential element of a crime is the particular intent or purpose with which the *Page 649 act is done, drunkenness may be considered by a jury in determining whether such intent or purpose actuated the defendant; and this is so whether or not there are any degrees of the crime with which the defendant is charged.
Rehearing denied.