specially concurring.
The offer of an instruction on intoxication by the prosecution leaves a clear inference to me that defendant had, during the proceeding, asserted the defense of intoxication and recognized the burden of the State to meet this claim; and also, the recognition that there was evidence to justify such instruction. The writer wishes to suggest to trial judges, when faced with this question, that it is not their function or province to weigh the evidence but to determine if it exists. The factual situation in this case demonstrates the wisdom of the suggestions contained in the case of People v. Cram, 12 Cal.App.3d 37, 90 Cal.Rptr. 393, 398, which suggests that whenever there is any evidence of intoxication, discretion should dictate to the trial court to instruct on this matter or secure a waiver from defense counsel and thus remove from the appellate court the responsibility of weighing the evidence of such intoxication to *415determine if it is substantial. See People v. Puckett, 44 Cal.App.3d 607, 118 Cal.Rptr. 884, 890;1 and People v. Rodriquez, 274 Cal.App.2d 487, 79 Cal.Rptr. 187.
The writer finds of some interest and possible applicability the case of People v. King, 29 Ill.2d 150, 193 N.E.2d 790, 793, in which case the defendant did not assert the defense of intoxication but the court gave such instruction upon its own motion over the objection of defendant, and complaint was made of this on appeal. The court held that such instruction was properly given. See also, Dye v. State, 220 Ga. 113, 137 S.E.2d 465, 467.
. This suggestion based upon evidence which consisted only of finding empty beer cans and an odor of alcohol on defendant’s breath.