The opinion
OPINION ON REHEARING
On April 9, 1974, this Court affirmed the conviction of Larry Parrott, hereinafter referred to as defendant, for the crime of Burglary in the Second Degree. From that opinion, defendant has filed a Petition for Rehearing.
In our previous opinion this Court did not consider defendant’s fourth, fifth, and sixth propositions of error, as they were not properly before this Court. Defendant has now corrected this situation in his Petition for Rehearing.
Defendant argues that the trial court erred in refusing to give in toto requested Defense Instruction No. 1. The trial court gave Instruction No. 4, which was:
“You are further instructed that voluntary intoxication is no defense, unless at the time of the crime the defendant was so under the influence of intoxicants that he was unconscious of what he was doing and was incapable of forming the necessary intent.”
*634 Defendant cites error in that the trial court did not add to this instruction, “Such fact constitutes a valid defense to this prosecution.” This tag statement is intended to refer back to the state of intoxication.
We have carefully reviewed the requested instruction and the instructions that were given. It is our opinion that the instructions given by the trial court correctly state the applicable law. In Haywood v. State, Okl.Cr., 513 P.2d 322 (1973), this Court, in speaking to the sufficiency of an instruction, quoted Kerr v. State, Okl.Cr., 276 P.2d 284 (1954), stating:
“It is not error to refuse requested instructions which are proper statements of the law when such requested instructions are substantially covered by the instructions given by the court.”
See also Buie v. State, Okl.Cr., 368 P.2d 663 (1962).
We, therefore, find this assertion of error by defendant to be without merit.
Defendant also urges that the trial court erred in refusing to give requested Defense Instruction No. 2 to the effect that defendant was entitled to have the jury instructed on 21 O.S.1971, § 1438, as a lesser and included offense. This Court has repeatedly held that the trial court is bound to give instructions on those issues of law which have a bearing on the case. Sheehan v. State, 83 Okl.Cr. 41 , 172 P.2d 809 (1946); Hickman v. State, Old. Cr., 344 P.2d 593 (1959). Whether an instruction on a given point should be given depends upon the circumstances presented in that particular case. In the instant case, defendant was charged under 21 O.S.1971, § 1435 (Burglary in the Second Degree) and defendant urges that the trial court should have also instructed the jury as to the provisions of 21 O.S.1971, § 1438 which differs from Burglary in the Second Degree only in that a “breaking” is not an element of the offense. Defendant argues that 21 O.S.1971, § 1438 is a lesser and included offense and under some circumstances we agree with this contention. To be considered as a lesser and included offense, it is necessary that there be some evidence that tends to prove the commission of the lesser and included offense. This Court has held that it is error for the trial court to refuse to instruct the jury of their right to convict a defendant of a lesser and included offense where there is evidence tending to prove the commission of this lesser crime. Kilpatrick v. State, 71 Okl.Cr. 129 , 109 P.2d 516 (1941); Stiles v. State, S3 Okl.Cr. 187, 9 P.2d 58 (1932). Therefore, in the instant case there has to be some evidence of the lesser offense before it can be validly asserted that the trial court erred in refusing the proffered instruction. After a complete review of the record, this Court concludes that there was no evidence presented tending to prove the commission of the lesser and included offense. In Hall v. State, Okl.Cr., 503 P.2d 229 (1972), this Court stated:
“In Oklahoma all persons concerned with the commission of a crime, whether they directly commit the act constituting the offense, or aid and abet in its commission, are responsible as principals. 21 O.S.1971, § 172. 22 O.S.1971, § 432. It is, of course, necessary that there be some aiding by acts, words, or gestures, or consenting to the commission of the crime.”
In State v. Hunt, Okl.Cr., 330 P.2d 756 (1958), this Court pointed out, in the third paragraph of the Syllabus:
“All persons who are concerned in the commission of an offense are ‘principals’ and should be prosecuted and convicted as such . . .”
We have carefully reviewed the record in the instant case and find that there was no evidence introduced that tended to prove the commission of a lesser and included offense. Inasmuch as defendant’s co-defendant was not entitled to an instruction on a lesser and included offense, it necessarily follows, in light of the two quoted statutes, defendant, who was an aider and abettor, was not entitled to such *635 instruction. We, therefore, find this contention of error to be without merit.
Defendant further asserts that the trial court erred in refusing to give Defense Instruction No. 3 to the effect that defendant was entitled to have the jury instructed on 21 O.S.1971, § 1760, as a lesser and included offense. Defendant asserts that there was no showing that the defendant possessed the necessary felonious intent to commit the crime charged. This Court, in Garret v. State, Okl.Cr., 350 P.2d 983 (1960), stated:
“Where it is shown that one accused of burglary broke and entered a store in the night time, it may ordinarily be presumed that he did so with intent to steal, . . ."
This Court has heretofore asserted that the determination of intent is a question for the trier of fact. In Reynolds v. State, Okl.Cr., 511 P.2d 1145 (1973), this Court quoted from the Syllabus in Murphy v. State, 79 Okl.Cr. 31 , 151 P.2d 69 (1944), stating:
“Where intent is necessary in the commission of a crime, it is a question for the jury, under all the facts and circumstances, of each individual case. It may be proved by direct or circumstantial evidence.”
This Court has also held that a determination by the trier of fact will not be disturbed on appeal when the record discloses facts that support such a conclusion. Roberts v. State, Okl.Cr., 473 P.2d 264 (1970).
A review of the record indicates that there was sufficient evidence for the jury to determine that the defendant had the requisite intent. We, therefore, find this assertion of error to be without merit.
For all of the above and foregoing reasons, the Petition for Rehearing should be, and the same is hereby, denied. The Clerk of this Court is directed to issue the Mandate forthwith.
BLISS, P. J., concurs.
BRETT, J., not participating.