OUJI-CR 8-38


It is the burden of the State to prove beyond a reasonable doubt that the defendant formed the specific criminal intent of [Insert Specific Intent Required By the Statute]. If you find that the State has failed to sustain that burden, by reason of the intoxication of [Name of Defendant], then [Name of Defendant] must be found not guilty of [Crime Charged in Information/ Indictment]. You may find [Name of Defendant] guilty of [Lesser Included Offense], if the State has proved beyond a reasonable doubt each element of the crime of [Lesser Included Offense].

Notes on Use

The trial court should fill in the specific criminal intent at issue in place of the bracketed language in the first sentence of this instruction. See Malone v. State, 2007 OK CR 34, ¶ 31, 168 P.3d 185, 199.

Unless the evidence of the prosecution has raised the issue, the defendant must come forward with evidence concerning intoxication in order to raise it as a defense. If the defendant fails to come forward with evidence of intoxication, or fails as a matter of law to come forward with sufficient evidence, the issue of intoxication is not raised in the trial, and the trial judge should not instruct on intoxication. See Charm v. State, 1996 OK CR 40, ¶ 11, 924 P.2d 754 , 761. If the defendant presents sufficient evidence to raise the issue of intoxication, or if the evidence of the prosecution raises the issue of intoxication, the trial judge should instruct the jury on intoxication because the trial judge has a duty to instruct on the defendant's theory of the case. No instructions on the defendant's burden to come forward with evidence, or on whether the defendant has presented sufficient evidence, are presented because these are questions of trial procedure and of law, which are beyond the legitimate concern of the jury.

Committee Comments

This instruction sets forth the appropriate burden of proof that rests upon the State. Kerr v. State, 1954 OK CR 131, 276 P.2d 284 . It is drafted, however, to inform the jury very clearly that the defendant is to be acquitted only of the crime having a specific mens rea, but not of a lesser included offense, if one exists, lacking such a mens rea requirement.

The use of the following instruction was approved in Oxendine v. State, 1958 OK CR 104, 335 P.2d 940 :

You are instructed that homicide committed with a design to effect death is not the less murder because the perpetrator was in a state of voluntary intoxication at the time. However, one of the elements of the crime of murder is an intent to effect the death of the person killed and if you find that the defendant at the time of the killing was so completely drunk as to be totally unable to form an intent to kill, or if you have a reasonable doubt thereof, you should not find the defendant guilty of murder. The homicide, under such circumstances, unless otherwise excusable, would amount to manslaughter in the first degree.

Id. at ¶ 10, 335 P.2d at 940. See also Charm v. State, 1996 OK CR 40, ¶ 6, 924 P.2d 754 , 774 (Lane, J., dissenting) (noting that Oxendine has been followed in three other cases).

(2010 Supp.)