(concurring).
I concur for the reason that under the facts shown the defendant was not entitled to an instruction on intoxication as a defense. Therefore, the instruction which was given, although obviously erroneous, was not prejudicial and did not deprive him of a full and fair presentation of the issues to the jury.
There are many acts which are not criminal unless they are accompanied by a specific wrongful intent. For instance, one may take the property of another by mistake or with consent without being guilty of a crime. It is only the taking with intent to steal which constitutes larceny. One may similarly enter the dwelling of another without committing crime. Burglary requires that the entering be with an intent to steal or commit a felony therein. Signing another’s name may be no crime, but doing so with intent to defraud makes the act forgery. In these and numerous other crimes a “particular purpose, motive ol intent is a necessary element” within the meaning of the statute 1 quoted in the main opinion, and intoxication which would raise a reasonable doubt as to whether an act was done with the required intent would be a defense. However, with respect to the crime here charged it is the doing of the act which constitutes the crime without regard to the intent with which it is done. In such cases intoxication would be a defense only if it existed to such a degree that it might raise a reasonable doubt that the defendant was aware that he was doing the act. The jury were instructed that the defendant could not be found guilty unless they believed from the evidence beyond a reasonable doubt that he voluntarily did the act. Their having so found, in my view, necessarily presupposes that he was aware what he -i/as doing, because under the circumstances here in question the act committed could not otherwise have been accomplished. The defense interposed by the defendant himself was that of alibi. The only evidence of his being under the influence of liquor came from the other witnesses and under no reasonable view could it be considered sufficient to raise a reasonable doubt as to his capacity to know that he was doing the act charged. I therefore concur in affirming the judgment for the reason that under the facts of this case no instruction on drunkenness was justified.
. Section 76-1-22, U.C.A.1953.