dissenting: I respectfully dissent. Although I am in complete agreement with the principles of law which are set forth in *141the majority opinion, I have concluded from a careful reading of the evidentiary record that there was a legitimate factual issue relating to whether the defendant Wright had the specific intent to injure which is an essential element of aggravated battery (K. S. A. 21-3414). The evidence of defendant’s intoxication required the trial court to instruct the jury on the lesser offense of criminal injury to persons as defined in K. S. A. 21-3431.
Donna DeWater testified unequivocally that Mike Smith, Wayne Wright, and Randy Smith were drunk on the evening in question. It was undisputed that the defendant Wright and Mike Smith fought back and forth on a number of occasions during the evening and after each exchange of blows would seem to become friends again. Then the fight would start all over again. Defendant Wright when asked whether or not he had a knife that evening téstified that he was told he did but that he did not remember actually having a knife. The trial judge obviously believed that defendant’s intoxication was a factor in the case since he instructed the jury in substance that although voluntary intoxication is not a defense to a charge it may be taken into consideration in determining whether the accused was capable of forming a particular intent or state of mind. Although giving this instruction, the court did not then instruct the jury as to any lesser offense of which the defendant might be guilty in the event the jury concluded that as a result of his intoxication the defendant was unable to form the intent to injure which is a necessary element of aggravated battery. I would reverse and remand the case for a new trial so that a jury could consider defendant’s guilt of the lesser included offense of criminal injury to persons as defined in K. S. A. 21-3431.