concurring in part and dissenting in part.
I agree with Part I of the lead opinion, upholding the sufficiency of the evidence to support the jury’s finding that Olin displayed an operable firearm during the commission of the robbery. However, with respect to Part II, I am not persuaded that the district court erred in refusing to give din’s requested instruction. For that reason, my vote is to affirm the judgment of conviction.
It is well settled that robbery was recognized as a crime at common law. In fact, LaFave points out that the crime of robbery was created before that of larceny. W. LAFAVE & A. SCOTT, HANDBOOK ON CRIMINAL LAW § 94 at 692 n. 1 (1972). As noted in our lead opinion in the instant case, many courts have engrafted onto the crime of robbery all of the elements that later were developed in respect to the crime of larceny, including the element that the taking of property must be with a specific intent to deprive the owner of the property permanently. Case law and statutory law show that the “owner” characteristic has been changed to include not only owners, but any person who is in possession of the property. The “permanency” aspect has also changed, to include *531temporary deprivation — at least to the extent that a taking and holding of the property for an unreasonable length of time may suffice for the “deprivation” element.
Apparently, whether “robbery” is a crime embodying the specific intent attributed to larceny depends upon if the legislative enactment fortuitously includes (or excludes) the adjective “felonious.” In some states where that word does not appear in the statutory language defining the crime of robbery, courts have held that the specific intent to deprive an owner of property — required by larceny — is not required for robbery. See, e.g., People v. Moseley, 193 Colo. 256, 566 P.2d 331 (1977); People v. Meeks, 542 P.2d 397 (Colo.App.1975); People v. Banks, 75 Ill.2d 383, 27 Ill.Dec. 195, 388 N.E.2d 1244 (1979); State v. Thompson, 221 Kan. 165, 558 P.2d 1079 (1976); Litteral v. State, 97 Nev. 503, 634 P.2d 1226 (1981); Traxler v. State, 96 Okl.Cr. 231, 251 P.2d 815 (1952). On the other hand, the Florida Supreme Court has held that, notwithstanding omission of the word “felonious” from Florida’s statutory definition of robbery, the specific intent to deprive an owner of his property is a requisite of the crime of robbery. See Bell v. State, 394 So.2d 979 (Fla.1981). Other states, as noted by the lead opinion, have determined that robbery is a crime of specific larcenous intent where robbery is defined by statute as involving “felonious” conduct. Thus, it may seem anomalous to a citizen on the street that simply taking money from a store clerk at gunpoint may constitute the crime of robbery in one state but the same conduct in another state will not be punishable as a robbery.
Given these divergent views and in light of the historic metamorphosis through which the crime of robbery has evolved, it seems to me that the crime of robbery is no longer critically dependent upon a specific intent to deprive the owner of property. Rather, in the commission of that crime, it is the means employed that the law denounces. See, e.g., State v. Phillips, 62 Idaho 656, 115 P.2d 418 (1941). A similar conclusion was reached by the Illinois court in Banks.
“... what is essential to the offense of robbery ...: depriving a person, in his or her presence, of property, through force or intimidation. As a matter of policy, we do not think the duration of the deprivation is pertinent nor intended to be so by the legislature. (Citations omitted.) The various definitions of ‘deprivation’ or ‘deprive’ emphasize this; for example, Webster’s Third New International Dictionary 606 (1971) defines ‘deprive’ as ‘to take away: remove, destroy; to take something away from: divest, bereave; ... to keep from the possession, enjoyment, or use of something.’ Black’s Law Dictionary 529 (rev. 4th ed. 1968) defines ‘deprive’ as ‘[t]o take ... a taking altogether, a seizure, a direct appropriation, dispossession of the owner____ It connotes want of consent.’ What is relevant then is the substantial interference, temporary or permanent, with property rights without consent. And what is intended by the legislature is ‘to prevent the use of force and threats against persons as a means of inducing them to part with their property. The intent to steal may include the intent to permanently deprive but is not limited to it and extends to the taking away, stealing, or even preventing the owner from his or her continued and free enjoyment of his property.’ (M. Bassiouni, Criminal Law 336-37 (1978)).”
388 N.E.2d at 1247, quoted in Litteral v. State, supra, 634 P.2d at 1228. In this regard, I agree with the district judge below; it is the taking of property by means of force or fear that constitutes the offense of robbery.
I am also not persuaded that we need to lend any new definition to our robbery statute. I find it curious that the legislature of Idaho has never deemed it necessary to define robbery with such specificity that the crime should explicitly include all of the elements of larceny. Our robbery statute predates statehood. In 1864, the territorial legislature declared:
Robbery is the felonious and violent taking of money, goods or other valuable *532thing, from the person of another, by force or intimidation.
1864 Idaho Sess. Laws § 60 at 447. The statute was revised somewhat in 1887. That year the legislature adopted Revised Statute § 6590, which now appears as I.C. § 18-6501. The statute reads:
Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.
I suspect that our legislature (let alone the Valley County jury and the victim in this case) would be greatly surprised to learn that the defendant Olin may not have committed a robbery, as that crime has been statutorily defined by the lead opinion. Here, the store clerk testified that Olin entered the establishment, pointed a pistol at her face, cocked back the hammer and said “Empty the drawer now or I’ll blow your head off.” She began emptying the cash drawer of her till, beginning with one- and five-dollar bills. As she got to the ten-dollar bills, he said “Put it in a bag.” She grabbed a paper sack to put the money in and he said “Hurry up. Get the twenties. Hurry up.” After she put the twenty-dollar bills in the sack she asked him if he wanted the change and he said “No.” He then escorted her to a back room and told her to stay there. He told her, “Don’t come out or I’ll blow your head off.” When Olin was later arrested by the police, he was in possession of the sack of money and the sack contained $776.00. As he was accosted by the police, Olin stated “Okay, you’ve got me. I’m the one who robbed the store.”
Testifying on his own behalf, Olin admitted he entered the store, pointed a gun at the clerk and asked her for the money. In answer to a question by his counsel, if Olin went into the store “with the intent to rob that store,” Olin responded: “I had no idea why I was in there.” He also denied that, on the day in question, he had planned to rob the store. Olin testified that he was drunk when the robbery occurred.
Consequently, because of Olin’s representation that his intoxication prevented him from formulating a criminal intent, Olin requested the court to include in the definition of the crime of robbery, that the specific intent necessary to constitute the crime of robbery is the specific intent to permanently deprive the person of that property, viewing robbery as nothing more than larceny accomplished by means of force or fear. The court refused Olin’s request. The court ruled:
I think the larceny or the theft portion of the statute includes its own definition of what constitutes a theft when the property is taken from a person of another. As a matter of fact, it makes it grand theft, no matter what the value of the property might be when it is taken from the person of another.
It doesn’t say anything about force or fear. I don’t believe it is implicit in robbery that you have a larceny or a theft involved. I think you can have robbery, in other words, when the intent is maybe even giving the personal property back to somebody in the future at some time. It’s a taking by means of force or fear that constitutes the offense of robbery.
The court thus instructed the jury:
Instruction No. 24
Robbery, as charged in Count I of the Information, under the laws of the State of Idaho, is defined as the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.
Instruction No. 26
In the crime of Robbery with which the Defendant is charged in Count I of the Information, there must exist a union or joint operation of act or conduct and a certain specific intent.
In the crime of Robbery there must exist in the mind of the perpetrator the specific intent to take personal property in the possession of another from his *533person or immediate presence, against his will, by means of force or fear. Unless such intent so exists that crime is not committed.
Instruction No. 27
Our law provides that “no act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition.”
This means that drunkenness, if the evidence shows that the defendant was in such a condition when allegedly he committed the crime charged, is not of itself a defense in this case. It may throw light on the occurrence and aid you in determining what took place, but when a person in a state of intoxication, voluntarily produced by himself, commits a crime such as that against the defendant in this case, the law does not permit him to use his own vice as a shelter against the normal legal consequences of his conduct.
Instruction No. 28
However, when a defendant is charged with a crime which requires that a certain specific intent or mental state be established in order to constitute the crime or degree of crime, you must take all the evidence into consideration and determine therefrom if, at the time when the crime allegedly was committed, the defendant was suffering from some abnormal mental or physical condition, however caused, which prevented him from forming the specific intent or mental state essential to constitute the crime or degree of crime with which he is charged.
If from all the evidence you have a reasonable doubt whether the defendant was capable of forming such specific intent or mental state, you must give the defendant the benefit of that doubt and find that he did not have such specific intent or mental state.
Instruction No. 29
The intent with which an act is done is manifested by the circumstances attending the act, the manner in which it is done, the means used and the sound mind and discretion of the person committing the act.
I believe the instructions given by the court adequately covered the issues in this case. A person of common understanding certainly could conclude that the events transpiring in this case showed that a robbery — both in fact and in law — occurred. If it is necessary to engraft any additional definition or interpretation onto the legislature’s declaration making “felonious” taking of property from another, against his will and by means of force or fear, a crime, it should be sufficient to simply equate “felonious” with “wrongful,” “unlawful” or “without color of right.” Such an approach would allow an accused to present any defense or excuse that might show such matters as (a) the taking was under an honest, though mistaken, claim of ownership of, or claim of a lawful right to possess, the property; or (b) through the perpetration of a prank or practical joke; or (c) in honest belief of collection of a legitimate debt; or (d) by authority in the discharge of public duties by a public officer; or (e) in the case of seizure of dangerous weapons, to prevent harm or injury by the possessor of such instruments. The evidence in this case presented none of these defenses or excuses or any similar defense. Furthermore, as noted by the special concurring and dissenting opinion of Swanstrom, J., infra, inclusion of any instruction relating to specific intent to deprive would not, from any reasonable view of the evidence, result in any different verdict upon the facts as they were presented to this jury. Not being convinced that the district court erred in refusing to give the defendant’s instruction, I vote to affirm the conviction for robbery.