(dissenting).
I am unable to concur in the majority opinion. While many of the assignments of error are without merit and correctly disposed of in the majority opinion, there are some propositions submitted and argued which deserve careful consideration.
At the trial appellant contended and offered testimony to prove that at the time of the crime charged he was so intoxicated that he did not have and could not form an intent to commit grand or petit larceny, or other felony.
He testified that he had been drinking for several days prior to the time of the charged burglary and that on the day preceding the alleged burglary he drank intoxicants from 11:30 A.M. until late in the evening, consuming four or five drinks an hour, testifying:
“I drank from early afternoon until late evening, maybe four or five drinks an hour, — possibly between three and four drinks. * * * I remember
drinking through the afternoon and into the evening * * * and things just sort of got black. * * *
“Q. On this particular day, as well as you can remember, would you say you were intoxicated? A. Yes, I would, very intoxicated.”
On cross-examination he testified that during the day of the claimed burglary, he supposed he drank in all the bars along Main Street, and his recollection of what happened in the evening, and particularly before and at the time of the alleged burglary, was very hazy.
A corroborating witness testified that appellant was in his place of business about ten, or later, on the evening of the burglary, and he was at that time drunk. There was further slight testimony to show that on the day in question appellant had been consuming intoxicating liquors.
Among instructions requested, the defendant asked that the jury be instructed:
“ * * * if you find that the defendant did enter said Vista Pharmacy on the night mentioned, but from the *34evidence you entertain a reasonable doubt as to whether at the time of such entry the defendant did have an intent to commit one of the offenses named, or if you believe from the evidence and therefore find that the defendant was intoxicated and by reason thereof you entertain a reasonable doubt as to whether the defendant had an intent, or was capable of having an intent to commit one of the offenses named.in the statute, then you should acquit the defendant.”
He requested other instructions in substance stating that if the jury entertained a reasonable doubt as to whether he was or was not intoxicated at the time of the unlawful entry to the degree that he did not have, or was incapable of having, an intent to commit one of the offenses named, he was entitled to an acquittal. The court refused to give the requested instructions and such refusal is assigned as error.
In order to constitute burglary, there must have existed in the mind of the defendant at the time of the entry into the building, a specific intent to commit grand or petit larceny, or other felony. If .this intent did not exist at the time of the entry, regardless of what might happen thereafter, the. crime of burglary was not committed. State v. Dwyer, 33 Idaho 224, 191 P. 203; State v. Sullivan, 34 Idaho 68, 199 P. 647, 17 A.L.R. 902; State v. Bigley, 53 Idaho 636, 26 P.2d 375.
If the intent to commit larceny or some felony necessary to constitute the crime of burglary actually existed at the time of the entry, it would make no difference whether the accused was drunk or sober. The correct inquiry, however, is the criminal intent at the time of the entry. True, this intent may exist in the mind of one who is under the .influence of intoxicating liquors, and if so, intoxication is no excuse. If, on the other hand, the defendant was so drunk (there being no prior criminal intent) as not to know where he was or what he was doing, and with no specific intent to commit the crime of grand or petit larceny, or other felony, when the entry was made, he would not be guilty of burglary. From the very nature of the offense charged, the necessary intent cannot exist in the mind of one who is too drunk to entertain a specific intent of any kind. State v. Shores, 31 W.Va. 491, 7 S.E. 413,13 Am. St.Rep. 875; McPhee v. People, 105 Colo. 539, 100 P.2d 148, 23 C.J.S., Criminal Law, § 1201, p. 756; 15 Am.Jur. 30, Sec. 340; State v. Stenback, 78 Utah 350, 2 P.2d 1050, 79 A.L.R. 878; State v. Gailey (assault with intent to commit rape) 69 Idaho 146, 204 P.2d 254.
The rule applicable here is stated in 16 C.J. 107, § 83, as follows:
“The rule that drunkenness is no defense does not apply to the full extent where a specific intent or motive is an essential element of the offense *35charged. If at the time of the commission of such an offense the accused was by intoxication so entirely deprived of his reason that he did not have the mental capacity to entertain the necessary specific intent which is required to constitute the crime, he must necessarily be acquitted; and in like manner the fact of defendant’s drunkenness should be considered in determining the degree of the crime. This is so, not because drunkenness excuses the crime but because if the mental status required by law to constitute crime be one of specific intent or of deliberation and premeditation, and drunkenness excludes the existence of such mental state, then the particular crime charged has not in fact been committed.” See also, 22 C.J.S., Criminal Law, § 68.
The court did not give the jury any instructions covering the legal points presented here. General instructions given were insufficient. The refusal was error.
The defendant is entitled to an affirmative instruction applicable to his testimony based upon the hypothesis that it is true when his testimony affects a material issue of the case. State v. Huskinson, 71 Idaho 82, 226 P.2d 779; Dismore v. State, 60 Okl.Cr.R. 346, 44 P.2d 894; State v. White, 46 Idaho 124, 266 P. 415; State v. Moultrie, 43 Idaho 766, 254 P. 620.
Numerous remarks of the court made in the presence of the jury, during the proceedings taken against the appellant, are assigned as error. It is a well recognized fact that the jury watches every movement and statement of the trial judge, observes his demeanor and detects, if possible, the slightest intimation on his part of his feelings, if any, in the matter at issue, and places great reliance upon what he says, how he says it, and what he does. If a wrong impression is made on a jury from any such demeanor or remarks, it is difficult, if not impossible, to remove it from the minds of the jury by any general instruction that might be given. Hence comment or remarks by a trial court which will in anywise tend to prejudice a defendant should be avoided. It is no answer to say no prejudice is shown. The question is, might it have affected the verdict.
The State contends that the proof of the defendant’s guilt is evident and the presumption great so that errors complained of could have had no effect on the verdict.
Art. 1, iSec. 7, Idaho Constitution provides the right of trial by jury shall remain inviolate.
This provision of the constitution means the trial on an issue of fact, free from prejudicial error, by a jury which has not been misdirected by a court as to the law governing the case. In re Dawson, 20 Idaho 178, 117 P. 696, 35 L.R.A.,N.S., 1146; State v. Lundhigh, 30 Idaho 365, 164 P. 690. An instruction which takes from the jury a question of fact proper for the jury to pass on is prejudicial error. State v. Dunn, 44 Idaho 636, 258 P. 553.
*36The real question presented here is whether or not a person accused of crime is entitled to have the facts passed on by a jury under proper instructions covering the law of the case, or. may be convicted by a court’s determination of the facts. The grave issue raised is whether or not established precedents may be disregarded and the procedural rights of a person accused of crime as guaranteed by the constitution and the well recognized law of the state be ignored. The answer seems plain. The procedural rights of a person accused of crime is part of the law to which every accused person is entitled, and the guilt of such accused person should not be determined by the over-all conclusion that the proof of guilt is evident and the presumption great.
■It is not for us to say whether the accused is guilty or innocent. There is, in fact, no way of determining this issue without first according the accused a fair and impartial trial before a jury under rules of law and procedure well recognized and established. These rights belong to every person and should not be out-weighed by what our own conclusions of the facts might be.
This Court and other Courts have many times reversed convictions, not because of a reasonable doubt of what the facts might be, but because the procedural rights of the accused by which the guilt was established were not complied with.
We should not speculate on or determine what a jury may or might have done under other circumstances. No one knows what a jury will determine until its verdict is announced.
One of the basic principles necessary to secure the liberties of all is a fair trial for those accused of crime, and a defendant in a criminal proceeding has a right to have his cause passed on by a jury and instructions given covering his theory of the defense which are within the issues. When we adopt a contrary rule, by following a like example, many errors will enter our judicial system.
It is probably of little general importance whether the accused is or is not confined in the penitentiary, but the precedent established by which his conviction was secured is of the gravest importance to all individ-' uals.
The judgment should be reversed and ap^ pellant granted a new trial.
THOMAS, J., concurs in this dissent.