(dissenting)—The failure to give a manslaughter instruction was not error; the trial court was not “clearly apprised” of the theory adopted in the opinion reversing and remanding this case for new trial.
The logic of the majority as to the necessity of the manslaughter instruction where the evidence in a homicide case justifies a voluntary intoxication instruction is unimpeachable. One who is charged with murder and rests his defense upon voluntary intoxication, pursuant to RCW 9.01.114, may successfully convince the jury that he was so intoxicated that he was incapable of performing the specific intent to kill, but having admitted the killing, is guilty of manslaughter. Cf. State v. Brantley, 11 Wn. App. 716, 718, 525 P.2d 813 (1974).
If this was the defendant’s theory at trial, it was presented very obliquely.3 The exception taken to defendant’s *538proposed instruction No. 21, as noted in the footnote, is as close as the defendant comes to informing the trial court of this theory. In my opinion, none of the exceptions noted in footnote 3 comply with the requirement that the court be clearly apprised of the parties’ reason for taking the exception. As stated in Seattle v. Rainwater, 86 Wn.2d 567, 571, 546 P.2d 450 (1976):
Exceptions to the failure of the trial court to give an *539instruction must clearly apprise the trial judge of the points of law involved. Where the exception and the discussion of it does not do so, points of law or issues involved will not be considered on appeal.
See also CrR 6.15(c) and Haslund v. Seattle, 86 Wn.2d 607, 614, 547 P.2d 1221 (1976).
During the process of any trial, counsel and the court are involved in a multitude of issues. If the defendant intended to argue the theory now expressed, he was obligated to alert the trial court of that theory. It is only by selecting particular words from the several exceptions (keeping in mind the theory now expressed) that it is even remotely possible to perceive that the trial court was advised of the theory which is now so clearly enunciated. The exceptions to the instructions do not provide a sufficient nexus connecting the issue of voluntary intoxication to manslaughter.
I understand the majority’s opinion to be that the trial court should have recognized as a matter of law that by giving the intoxication instruction the manslaughter instruction must necessarily follow, in the absence of excusable or justifiable homicide. It is my belief that a party’s theory is best known to that party; he should be more familiar with his case than the judge. It is his obligation to present his theory to the trial judge. The defendant failed to meet this obligation with sufficient clarity.
The majority notes the State’s failure to challenge the adequacy of the defendant’s exception and laments this dissent raising the clarity contention. However, if a trial court may be sustained upon any ground, it is our duty to affirm. State v. Carroll, 81 Wn.2d 95, 500 P.2d 115 (1972); McDaniel v. McDaniel, 14 Wn. App. 194, 539 P.2d 699 (1975); State v. Broussard, 12 Wn. App. 355, 529 P.2d 1128 (1974). This court should not be handcuffed by the State’s omission of a contention in support of a judgment which is within the direct attack of the defendant.
I concur in the balance of the majority’s opinion; however, I would affirm the conviction.
Petition for rehearing denied July 19, 1976.
Appealed to Supreme Court July 23, 1976.
The defendant excepted to the giving of, and failure to give, certain instructions as follows. The intoxication instruction given:
Furthermore, the instruction is so confusing that it would appear to be almost impossible for the jury has never worked with an instruction like this to understand what it says.
I would cite in that regard State vs. Mellow, 79 Wash (2d) 279, and Edwards vs. United States, a Washington, D. C. opinion in the Federal courts, 172 Federal (2d) 884, and also RCW 9.01.114. The Edwards case states that if in fact there is evidence that a defendant is entitled to an intoxication instruction going to his intent or lack of intent, that the jury should be instructed that if he was intoxicated to such an extent that he could not form the necessary intent they must acquit him. In other words, telling the jury that it is a defense to the charge with a specific intent.
I believe that Defendant’s Proposed Instruction No. 33 precisely states that.
(Italics mine.) In truth, that’s exactly what defendant’s proposed instruction No. 33 said in this last paragraph:
“If you find that the defendant Clyde Gus Colwash was intoxi*538cated to such an extent that he could not form the necessary intent you must acquit him.”
(Italics mine.) Further, in excepting to the court’s instruction on intoxication, the defendant stated:
They are at liberty to either believe or disbelieve what I say to them as an attorney and it is not evidence what I say, and they are instructed on that, and when we argue this case if we tell them that this is a defense, you have to acquit him if he did not have the intent due to intoxication, they can say, “No, no, that’s not what the instruction says.” I think there is room for them to say that by reading this instruction, and this is prejudicial error.
(Italics mine.) In excepting to the failure to give defendant’s proposed instruction No. 6 defining the various degrees of murder, the defendant stated:
“As far as material for your consideration, manslaughter is defined as follows:
“The killing of a human being which is not excusable or justifiable and which is not premeditated nor intentional is manslaughter.”
We feel, Your Honor, that the court should have given an instruction allowing the jury to deliberate upon the issue of whether or not a crime was committed and whether or not this crime was manslaughter. The court has seen fit not to instruct upon manslaughter in any way whatsoever.
The defendant then went on to outline a set of facts reflecting the manner in which this crime could have occurred, concluding:
[A]nd it could be inferred from the evidence, the circumstantial evidence, that in fact the defendant did not intend to kill him but he drew this knife in such a way as to try to keep Danny Sampson from injuring him, that in fact it was an accidental and not an intentional killing.
In excepting to the failure to give defendant’s proposed instruction No. 21 relating to specific intent, the defendant stated:
We feel that the Court should have given this instruction because it states there is a specific intent required, it is a specific intent crime, and specific intent must be found or the crime is not committed.
This goes along with our theory of the case as to intoxication and it is a part of our theory of the case and it also is the law of the State of Washington.