64 Wn.2d 995, THE STATE OF WASHINGTON, Respondent, v. ROBERT B. RUNNELLS, Appellant

[No. 37211. Department Two.      Supreme Court      April 9, 1964.]

THE STATE OF WASHINGTON, Respondent, v. ROBERT B. RUNNELLS,
                          Appellant.*

Appeal from a judgment of the Superior Court for Chelan County, No. 3712, Lawrence Leahy, J., entered July 22, 1963. Affirmed.

Prosecution for forgery. Defendant appeals from a conviction and sentence.

Hughes & Jeffers, for appellant.

E. R. Whitmore, Jr. and Robert E. Graham, for respondent.

WEAVER, J. -

Defendant was convicted of first degree forgery. He took the stand in his own defense, claimed he was an alcoholic, and testified that he had "blanked out" and did not remember forging an endorsement on a check.

Defendant makes three assignments of error: the first and second to the court's refusal to give two requested instructions, and the third to instruction No. 13-A. All refer to intoxication as a defense.

Instruction No. 13, to which no error is assigned, paraphrases RCW 9.01.114. 1 Defendant admits that this instruction is a correct statement of the law, but contends that when it is considered with instruction No. 13-A, to which error is assigned, the latter takes from the jury its right to consider the defense of intoxication. Instruction No. 13-A reads as follows:

"You are instructed that in dealing with the question of intoxication and intent you should use caution not to give immunity to persons who commit crime when they are inflamed by intoxicating drink. You must discriminate between the conditions of mind merely excited by intoxicating drink, and yet capable of forming a specific intent to commit a crime, and such a prostration of the faculties as renders a man incapable of forming the intent. If an intoxicated person has the capacity to form an intent to commit the crime charged herein and conceives and executes such an intent, it is no defense that he was induced to conceive it, or to conceive it more suddenly by reason of his intoxication." The language of the instruction does not support this contention.

Instruction No. 13-A was taken nearly verbatim from instructions that were approved in State v. Miller, 177 Wash. 442, 462, 32 P. (2d) 535 (1934) and State v. Cogswell, 54 Wn. (2d) 240, 246, 339 P. (2d)


* Reported in 390 P. (2d) 1003.

1 1 RCW 9.01.114. "No act committed by a person while in a state of voluntary intoxication shall be deemed less criminal by reason of his condition, but whenever the actual existence of any particular purpose, motive or intent is a necessary element to constitute a particular species or degree of crime, the fact of his intoxication may be taken into consideration in determining such purpose, motive or intent."

 996    REPORTER'S NOTE

465 (1959). For the reasons stated in Miller, supra, we conclude that the instruction was not erroneous.

The jury having been correctly instructed upon the law applicable to intoxication as a defense, it was not error to refuse to give the requested instructions upon the same subject.

The judgment is affirmed.

OTT, C.J., DONWORTH and FINLEY, JJ., and DENNEY, J. Pro Tem., concur.

June 3, 1984. Petition for rehearing denied.
                          REPORTER'S NOTE

By order of the Supreme Court dated December 13, 1957, the reporter was directed not to publish any opinion of the Supreme Court in bound volume of the Washington Reports while a petition for rehearing is pending, and until after the final determination if a rehearing is granted.

Pursuant to the above order, the opinions in the following cases, which were published in Vol. 64, Washington Decisions, Second Series, have been withheld from publication in the current volume:

No. 36863 Larsen v. Walton Plywood Company

No. 37189 Slippern v. Briggs