¶1The defendant was tried and convicted for the offense of larceny from a store-house. There being some testimony that he was drunk at the time of the commission of the offense, and he himself having testified that he did not remember anything which occurred on that day, defendant requested the court to instruct the jury: “Although drunkenness is no excuse for crime, yet, if the jury believe that, at the time the flour is said to have been taken, the defendant was in such a condition from drink as not to form a specific intent to take, or not to take the flour, then the jury may look to such condition, along with the other evidence in the case, to determine whether or not the taking was with the intent to •deprive the owner of the property, or to appropriate it to defendant’s own use.” While, as a general proposition, voluntary drunkenness neither excuses nor palliates an offense, yet its excessiveness may produce such a mental condition as to render the intoxicated person incapable of forming or conceiving a specific intent or purpose. — Fonville v. The State. 91 Ala. 39. When the offense consists of an act committed^ with a particular intent — when a specific intent is of the \ essence of the crime — drunkenness, as affecting the mental state and condition of the accused, becomes a proper subject to/ be considered by the jury in deciding the question of intent/
¶2Extracts from a few of the authorities will suffice to illustrate the reasons for, and the application of the doctrine. In People v. Walker, 38 Mich. 156, Cooley, J. says : “While it is true that drunkenness can not excuse crime, it is equally true that, when a certain intent is a necessary element in a crime,, the crime can not have been committed when the intent did not exist. In larceny, the crime does not consist in the wrongful taking of the property, for-that might be a mere trespass ; but it consists in the wrongful taking with felonious intent; and if the defendant, for any reason whatever, indulged in no such intent, the crime can not have been committed.” In Swan v. *49State, 4 Humph. 136, it is said: “Although drunkenness, in point of law, constitutes no excuse or justification for crime, still, when the nature and essence of a crime is made by law to depend upon the peculiar state and condition of the criminal’s mind at the time, and with reference to the act done, drunkenness, as a matter of fact, affecting such state and condition of the mind, is a proper subject for consideration and inquiry by the jury. The question in such cases is, what is the mental status ?”
¶3The decided weight of authority sustains the doctrine, that evidence of the condition of the accused, though caused by voluntary drunkenness, is receivable, and may be considered by the jury in determining the question of intent. — State v. Bell, 29 Iowa, 316; Wood v. State, 34 Ark. 341; 36 Am. Rep. 13; Rogers v. State, 33 Ind. 543; People v. Harris, 29 Cal. 678; 4 Am. & Eng. Encyc. of Law, 712. Charges as to this doctrine should, when necessary, be accompanied by such explanatory instructions as will prevent its misapplication by juries. Partial intoxication will not avail to disprove the specific intent; it must be of such character and extent as to render the accused incapable of consciousness that he is committing a crime; incapable of discriminating between right and wrong — stupefaction of the reasoning faculty.
¶4There being some testimony tending to show that defendant was drunk, he had a right to have the jury pass upon its credibility and sufficiency to prove that he'was so drunk as to be incapable of forming the specific intent to steal..- — King v. State, 90 Ala. 612. The charge should have been given.
¶5The second charge requested by defendant is purely argumentative, evidently intended as a reply to remarks made by the prosecuting attorney, mentioned in the bill of exceptions; for this reason, it was properly refused.
¶6Reversed and remanded.