dissenting in part.
The issue presented is whether the trial judge committed reversible error in refusing to instruct on the lesser included offense of manslaughter.
Defendant pleaded not guilty to murder. At trial his theory of the case was that he did not commit the crime. He testified that he had not committed the murder and that he was not intoxicated. Was he nevertheless, because of other evidence of his possible intoxication, entitled to a lesser included offense instruction on manslaughter? I think not, based upon my reading of the decisions discussed below.
In State v. Atkins, 14 Or App 603, 513 P2d 1191 (1973), rev’d, on other grounds 269 Or 481, 525 P2d 1018 (1974), a similar question arose. We held that even if second degree criminal trespass was a lesser included offense of second degree burglary, defendant was not entitled to an instruction on second degree criminal trespass where he testified that he had been in a tavern at the time the state’s evidence sought to *199show he was stealing the wire from a warehouse. In rejecting defendant’s argument we stated:
"Defendant contends his testimony as to his intoxication, if it were believed by the jury, would negate the crime of burglary because defendant would not have been capable of forming the intent to commit a crime when he entered the building. Thus, he contends, he would be guilty of criminal trespass if the jury found he entered the warehouse when he was so intoxicated that he had no intent to steal.
"This argument is illogical. The defendant testified that he was in a tavern at the time the state’s evidence sought to show he was stealing the wire. If the jury believed him it would be required to acquit him of either burglary or criminal trespass. Cf. State v. Oliver, 13 Or App 324, 330, 509 P2d 41, Sup Ct review denied (1973):
" 'Defendant denied committing the murders. This line of defense is mutually exclusive with a claim that he committed the acts while so intoxicated that he could not form a specific intent * * * .’
* * * Where defendant’s defense would be a defense to all lesser included charges as well as the principal crime charged, the trial court need not instruct on the lesser included offense for this reason alone. Cf. State v. O’Berry, 11 Or App 552, 556, 503 P2d 505 (1972), Sup Ct review denied (1973). * * * ” 14 Or App at 606-07.
The same issue was again raised in State v. Stoneberg, 15 Or App 601, 517 P2d 333 (1973), where defendant was charged with second degree robbery. There we held that the refusal to give a requested instruction on lesser included offenses was not error, quoting with approval from Atkins. In addition we said:
"If, as defendant contends, his entry into and his acts within the home were a 'prank,’ then he could not be guilty of either the crime of robbery, which requires that it occur 'in the course of committing or attempting to commit theft’, ORS 164.395(1), or of theft or attempted theft itself.” 15 Or App at 605.
The same issue arose in State v. Coffin, 29 Or App 819, 565 P2d 391, rev den (1977), where defendant was charged with burglary. He pleaded not guilty. His *200defense was essentially alibi. Although he did not take the stand he made a detailed exculpatory statement to the police. There we held that there was no evidence to support a lesser included offense instruction on criminal trespass and went on to point out further that the requested instruction was totally inconsistent with defendant’s own theory of the case.
Similarly, in State v. Engblom, 31 Or App 425, 570 P2d 678, rev den (1977), as in Coffin, we said that it was not error to refuse the requested lesser included offense instruction, citing the same reasoning.
Applying the above precedents to the case at bar, I conclude that where a defendant’s entire defense is mutually exclusive with the crime charged within the requested lesser included instruction, and the only evidence or inferences supporting that instruction are gleaned from the state’s case, the instruction need not be given.
The most recent pronouncement by our Supreme Court on this question is State v. Washington, 273 Or 829, 836, 543 P2d 1058 (1975), which is discussed in the majority opinion.
The crux of my disagreement with the majority concerns the interpretation of the paragraph from Washington set out in the opinion. I interpret the paragraph from Washington to mean that where defendant denies the crime charged and his defense is that of alibi, mistaken identity or other exculpatory defense, the trial judge is not required to give a lesser included offense instruction.
In my view Atkins, Stoneberg, Coffin and Engblom are completely consistent with the quoted paragraph from Washington. The majority’s conclusion is not.
For these reasons I respectfully dissent from this portion of the majority opinion.