(dissenting) — I cannot agree with the majority opinion and the comments therein regarding the instruction challenged by appellant in this appeal. See State v. Willis, 67 Wn.2d 681, 409 P.2d 669 (1966) (dissent).
We have hitherto indicated that such an instruction creates a denial of the right to jury trial. Furthermore, it is not necessary to a review of such an error that the ground of exception be called to the trial court’s attention. State v. Peterson, 73 Wn.2d 303, 438 P.2d 183 (1968). If anything, the instruction used is even more questionable in this case than in the Peterson case. The assailant in that case had been struck and insulted, left a party and returned with a drawn pistol. An argument took place, and ended. The pistol then discharged, striking the victim. The defense was that the pistol had been discharged involuntarily. It was clear that the defendant in Peterson possessed the requisite ability to form the required intent. The question was whether he had done so. State v. Alvis, 70 Wn.2d 969, 425 *58P.2d 924 (1967), relied upon by the majority, is not in point. As noted by the majority, there was little or no evidence indicating that the defendant in Alvis lacked the ability to form the requisite intent.
The instant case is far more compelling, for the issue is not formation of the intent but possession of the capacity to form it. The instruction given removed that issue from the consideration of the jury. Considered in the context of this case, where the claim of incapacity resulted from extreme intoxication,1 I believe that to underemphasize appellant’s defense or to remove it from possible consideration by the jury would be an impermissible interference with appellant’s right to a fair trial. The instruction assumes the very fact which appellant was trying to refute; namely, the instruction implicitly assumes that the act of knifing was in fact an intentional and voluntary act. As a leading treatise states:
The presumption that the defendant intended the natural and probable consequences of his acts applies only when the defendant has voluntarily and intentionally committed the acts for the consequences of which he is later prosecuted.
1 R. Anderson, Wharton’s Criminal Evidence, § 131, 244, (12th ed. 1955).
I think an interference with appellant’s right to a fair trial was entirely too likely under the instruction, and that giving it constituted reversible error. I dissent for the reasons indicated.
This conclusion becomes even stronger when, as a result of defendant’s chronic alcoholism, there is serious question as to whether his intoxication itself was indeed voluntary. See Seattle v. Hill, 72 Wn.2d 786, 435 P.2d 692 (1967) (dissent).