2020 Georgia Code
Title 16 - Crimes and Offenses
Chapter 3 - Defenses to Criminal Prosecutions
Article 1 - Responsibility
§ 16-3-4. Intoxication

1. A person shall not be found guilty of a crime when, at the time of the act, omission, or negligence constituting the crime, the person, because of involuntary intoxication, did not have sufficient mental capacity to distinguish between right and wrong in relation to such act.
2. Involuntary intoxication means intoxication caused by:
   1. Consumption of a substance through excusable ignorance; or
   2. The coercion, fraud, artifice, or contrivance of another person.
3. Voluntary intoxication shall not be an excuse for any criminal act or omission.

(Laws 1833, Cobb's 1851 Digest, p. 779; Code 1863, § 4197; Code 1868, § 4236; Code 1873, § 4301; Code 1882, § 4301; Penal Code 1895, § 39; Penal Code 1910, § 39; Code 1933, § 26-403; Code 1933, § 26-704, enacted by Ga. L. 1968, p. 1249, § 1.)

- Voidable nature of contracts made by intoxicated persons, § 13-3-25.

Mental capacity as it relates to competency to stand trial and as it relates to culpability for criminal acts, §§ 17-7-130,17-7-131.

Driving under influence of alcohol or drugs, § 40-6-391.

- For article discussing the theory of insanity in criminal law, see 15 Mercer L. Rev. 399 (1964).

ANALYSIS

• General Consideration
• Notice
• Application to Specific Crimes
• Drug Addiction

Construction with O.C.G.A. § 16-3-2. - Law of intoxication contained in O.C.G.A. § 16-3-4 must be read in light of O.C.G.A. § 16-3-2. O.C.G.A. § 16-3-4 limits the reach of O.C.G.A. § 16-3-2 so that the inability to distinguish between right and wrong is not a defense if the inability is a consequence of voluntary intoxication (but remains a defense if the inability is a consequence of involuntary intoxication). Foster v. State, 258 Ga. 736, 374 S.E.2d 188 (1988), cert. denied, 490 U.S. 1085, 109 S. Ct. 2110, 104 L. Ed. 2d 671 (1989).

Voluntary intoxication shall not be an excuse for any criminal act or omission. Gilreath v. State, 247 Ga. 814, 279 S.E.2d 650 (1981), cert. denied, 456 U.S. 984, 102 S. Ct. 2258, 72 L. Ed. 2d 862 (1982).

If condition of a man's mind, when unexcited by liquor, is capable of distinguishing between right and wrong, reasoning and acting rationally, and one voluntarily deprives self of reason by intoxication, and commits an offense while in that condition, one is criminally responsible for it. Williams v. State, 237 Ga. 399, 228 S.E.2d 806 (1976).

As long as a criminal defendant can distinguish between right and wrong, can reason and act rationally when sober, and the defendant voluntarily deprives self of reason by intoxication and commits an offense while intoxicated, defendant is criminally responsible for defendant's actions. Booth v. State, 184 Ga. App. 494, 361 S.E.2d 868 (1987).

Claim that the defendant was unaware of what the defendant was doing because of medication the defendant was taking at the time of a burglary did not excuse the crime because voluntary intoxication was not a defense. Meeks v. State, 274 Ga. App. 517, 618 S.E.2d 152 (2005).

Voluntary drunkenness furnishes no excuse for crime, though the sensibilities may be temporarily dulled, or though the crime be committed in excitement or frenzy produced thereby. Estes v. State, 55 Ga. 30 (1875); Marshall v. State, 59 Ga. 154 (1877); Hanvey v. State, 68 Ga. 612 (1882); Moon v. State, 68 Ga. 687 (1882); Beck v. State, 76 Ga. 452 (1886); Bernhard v. State, 76 Ga. 613 (1886); McCook v. State, 91 Ga. 740, 17 S.E. 1019 (1893); Cribb v. State, 118 Ga. 316, 45 S.E. 396 (1903); Strickland v. State, 137 Ga. 115, 72 S.E. 922 (1911); Dickens v. State, 137 Ga. 523, 73 S.E. 826 (1912); Stephens v. State, 139 Ga. 594, 77 S.E. 875 (1913); Bonner v. State, 26 Ga. App. 185, 105 S.E. 863 (1921).

Evidence was sufficient to enable the trial court to find, beyond a reasonable doubt, that the defendant possessed the intent necessary to commit aggravated assault, O.C.G.A. § 16-5-21(a), and felony murder, O.C.G.A. § 16-5-1(c), because the defendant used a vehicle as an offensive weapon, was extremely drunk when the defendant committed the crimes, and there was no evidence of brain damage, temporary or permanent; the defendant's crimes would have been aggravated assault and felony murder if the defendant were sober, and the fact that the defendant was voluntarily intoxicated did not make the crimes anything less. Guyse v. State, 286 Ga. 574, 690 S.E.2d 406 (2010).

Defendant's conviction was affirmed because the evidence showed that the defendant voluntarily consumed alcohol; and the defendant's ability after the night of the incident to recall events from that evening as evidenced by the defendant's apology to the business owner two days later and by the defendant's testimony at trial, showed that any alteration of the defendant's brain function that night was not more than temporary. Anderson v. State, 319 Ga. App. 701, 738 S.E.2d 285 (2013).

- As to artificial, voluntarily contracted madness, by drunkenness or intoxication, which, depriving men of their reason, puts them in a temporary frenzy, the law looks upon this as an aggravation of an offense, rather than an excuse for any criminal misbehavior. Grimes v. Burch, 223 Ga. 856, 159 S.E.2d 69 (1968).

Kind or strength of liquor drunk is immaterial. Cribb v. State, 118 Ga. 316, 45 S.E. 396 (1903); Strickland v. State, 137 Ga. 115, 72 S.E. 922 (1911).

- It does not make any difference that a man, either by former injury to the head or brain, or constitutional infirmity, is more liable to be maddened by liquor than another man. If one has legal memory and discretion when sober, and voluntarily deprives self of reason, one is responsible for own acts while in that condition. Massey v. State, 222 Ga. 143, 149 S.E.2d 118, appeal dismissed, 385 U.S. 36, 87 S. Ct. 241, 17 L. Ed. 2d 36 (1966).

- Evidence was sufficient to convict the defendant of malice murder, armed robbery, and concealing the death of another as a party to the crimes, and the defendant's voluntary intoxication provided no defense because the defendant admitted that the defendant was not coerced into participating in the crimes; the defendant admitted that the defendant took money from the victim's pockets as an accomplice bludgeoned the victim with a baseball bat; the defendant admitted participating in removing the victim's body from the apartment; and the defendant presented no evidence at trial that the defendant's brain function had been permanently altered. Perez v. State, Ga. , S.E.2d (Sept. 8, 2020).

- There was sufficient evidence for a rational trier of fact to find beyond a reasonable doubt that defendant was not involuntarily intoxicated since defendant consumed alcohol while on prescription medication in direct contradiction of a doctor's orders. Carter v. State, 248 Ga. App. 139, 546 S.E.2d 5 (2001).

Jury can consider drunkenness to shed light on transaction, though drunkenness cannot excuse the transaction. Hicks v. State, 146 Ga. 221, 91 S.E. 57 (1916) (decided under former Penal Code 1910, § 39).

One sober enough to try to hide is sober enough to form a guilty intent. Brazzell v. State, 119 Ga. 559, 46 S.E. 837 (1904).

- Defendant's convictions for driving under the influence per se and reckless driving were proper, as the evidence was not sufficient to raise the issue of insanity by way of involuntary intoxication in the defendant's trial because it only showed, at most, that the defendant could not remember committing the crimes or was in a "blanked out" state of mind during the commission of the acts charged. Crossley v. State, 261 Ga. App. 250, 582 S.E.2d 204 (2003).

Trial counsel was not ineffective for failing to pursue evidence and request a jury instruction regarding the defense of involuntary intoxication because there was no evidence that the defendant was involuntarily intoxicated due to excusable ignorance or the coercion, fraud, or contrivance of another person. Jacobs v. State, 306 Ga. 571, 832 S.E.2d 363 (2019).

Trial counsel's failure to request a jury instruction on involuntary intoxication did not amount to ineffective assistance in violation of the Sixth Amendment because there was no persuasive evidence on that point; to the contrary, the evidence tended to show that the defendant was much more sober than the victim. Hills v. State, 306 Ga. 800, 833 S.E.2d 515 (2019).

Cited in Meadows v. State, 230 Ga. 471, 197 S.E.2d 698 (1973); Pierce v. State, 231 Ga. 731, 204 S.E.2d 159 (1974); McKenty v. State, 135 Ga. App. 271, 217 S.E.2d 388 (1975); Johnson v. State, 235 Ga. 486, 220 S.E.2d 448 (1975); Cochran v. State, 136 Ga. App. 125, 220 S.E.2d 477 (1975); Barner v. State, 139 Ga. App. 50, 227 S.E.2d 874 (1976); Mason v. Balcom, 531 F.2d 717 (5th Cir. 1976); Young v. State, 239 Ga. 53, 236 S.E.2d 1 (1977); Veasley v. State, 142 Ga. App. 863, 237 S.E.2d 464 (1977); Richardson v. State, 143 Ga. App. 846, 240 S.E.2d 217 (1977); Jackson v. State, 149 Ga. App. 253, 253 S.E.2d 874 (1979); Kennedy v. State, 156 Ga. App. 792, 275 S.E.2d 339 (1980); Moore v. State, 158 Ga. App. 579, 281 S.E.2d 322 (1981); Webb v. State, 159 Ga. App. 403, 283 S.E.2d 636 (1981); Dick v. State, 248 Ga. 898, 287 S.E.2d 11 (1982); Butler v. State, 161 Ga. App. 251, 288 S.E.2d 306 (1982); Tucker v. State, 249 Ga. 323, 290 S.E.2d 97 (1982); Bailey v. State, 249 Ga. 535, 291 S.E.2d 704 (1982); Ford v. State, 164 Ga. App. 620, 298 S.E.2d 327 (1982); Nash v. State, 166 Ga. App. 533, 304 S.E.2d 727 (1983); Hatcher v. State, 251 Ga. 388, 306 S.E.2d 250 (1983); Purdue v. State, 170 Ga. App. 18, 316 S.E.2d 166 (1984); Tucker v. Kemp, 256 Ga. 571, 351 S.E.2d 196 (1987); Haywood v. State, 256 Ga. 694, 353 S.E.2d 184 (1987); Collins v. State, 183 Ga. App. 243, 358 S.E.2d 876 (1987); State Farm Fire & Cas. Co. v. Morgan, 185 Ga. App. 377, 364 S.E.2d 62 (1987); McEver v. State, 258 Ga. 768, 373 S.E.2d 624 (1988); Swenson v. State, 196 Ga. App. 898, 397 S.E.2d 211 (1990); Stephens v. State, 214 Ga. App. 183, 447 S.E.2d 26 (1994); Burchfield v. State, 219 Ga. App. 40, 464 S.E.2d 27 (1995); Ford v. Schofield, 488 F. Supp. 2d 1258 (N.D. Ga. 2007); McClure v. State, 306 Ga. 856, 834 S.E.2d 96 (2019).

Notice

Witnesses used in involuntary intoxication defense.

- While the defendant was correct that in 2013 there was no pre-trial notice requirement where an insanity-type defense, such as involuntary intoxication, was to be pursued exclusively through lay witnesses, the defense depended on more than lay-witness testimony as the defendant intended to call an emergency-department physician who treated the defendant on the night of the defendant's arrest; and the anticipated purpose of the physician's testimony was in exploring what testing the physician ordered, what substances the physician did not test for, and whether the defendant could have been on those substances, which required scientific or specialized knowledge, and veered into the realm of expert-witness testimony. McKelvin v. State, 305 Ga. 39, 823 S.E.2d 729 (2019).

- Although involuntary intoxication was not specifically referenced in Supreme Court Rule 31.5, pre-trial notice of that defense was required as it was a subset of an insanity defense. McKelvin v. State, 305 Ga. 39, 823 S.E.2d 729 (2019).

- Defendant's trial counsel was not ineffective as counsel's investigation of the defendant's involuntary intoxication defense was reasonable, even though the investigation failed to lead to an expert competent to testify as to the defendant's intoxication and potential effects of combining alcohol with a substance marketed as an over-the-counter "performance supplement." Knox v. State, 290 Ga. App. 49, 658 S.E.2d 819 (2008).

Only involuntary intoxication sufficient to remove the mental capacity to distinguish between right and wrong in relation to the act may excuse a criminal act. Voluntary intoxication is not an excuse for any criminal act. Bailey v. State, 198 Ga. App. 632, 402 S.E.2d 363 (1991).

Chronic intoxication does not constitute involuntary intoxication within meaning of O.C.G.A. § 16-3-4. Franklin v. State, 183 Ga. App. 58, 357 S.E.2d 879 (1987).

Defense of chronic alcoholism is not an excuse for offense of escape. Grimes v. Burch, 223 Ga. 856, 159 S.E.2d 69 (1968).

Alcoholism is not involuntary intoxication and consequently is not a defense to offense of escape or any other criminal act or omission. Ford v. State, 164 Ga. App. 620, 298 S.E.2d 327 (1982).

- Trial court properly disallowed cross-examination of a psychological forensic specialist on the effect of alcohol and drugs on defendant's ability to form the intent to commit kidnapping and aggravated assault, where there was no evidence that defendant was unconscious or comatose when the crimes were committed. Carsner v. State, 190 Ga. App. 141, 378 S.E.2d 181 (1989).

- Persons are not excused from criminal liability under O.C.G.A. § 16-3-4 because they are incapable of forming criminal intent. Lack of intent is a defense, but it is not implicated by that section. Foster v. State, 258 Ga. 736, 374 S.E.2d 188 (1988), cert. denied, 490 U.S. 1085, 109 S. Ct. 2110, 104 L. Ed. 2d 671 (1989); Mills v. State, 198 Ga. App. 527, 402 S.E.2d 123 (1991).

- Defendant has burden, once criminal intent has been shown, of illustrating that defendant's voluntary intoxication rose to a level required to negate intent. Blankenship v. State, 247 Ga. 590, 277 S.E.2d 505 (1981), cert. denied, 488 U.S. 871, 109 S. Ct. 183, 102 L. Ed. 2d 152 (1988), overruled on other grounds, Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993).

State was not required to disprove a defendant's O.C.G.A. § 16-3-4 affirmative defense of involuntary intoxication as the defendant failed to initially establish by a preponderance of the evidence that the defendant had involuntarily been injected with drugs by the defendant's aggravated assault victim and that due to the injection, the defendant was not mentally responsible for the actions that led to false imprisonment and aggravated assault charges. Stewart v. State, 291 Ga. App. 846, 663 S.E.2d 278 (2008).

- Unless actor was so intoxicated as to be unable to know, understand and intend to do the act, it cannot be said that the actor's was not intentional. Transamerica Ins. Co. v. Thrift-Mart, Inc., 159 Ga. App. 874, 285 S.E.2d 566 (1981).

- In a prosecution for murder, the prosecutor properly noted during closing argument that voluntary intoxication is not a defense where one of the investigating officers testified that the defendant smelled of alcohol and an expert witness for the defense testified that the defendant admitted that defendant consumed liquor and cocaine on the day of the murder. Payne v. State, 273 Ga. 317, 540 S.E.2d 191 (2001).

Trial court's charge on voluntary intoxication was correct and sufficient because voluntary intoxication was not a defense to the crime unless the intoxication resulted in altering brain function so as to negate intent, and defendant offered no evidence at trial concerning such permanent alteration of defendant's brain function. Mathis v. State, 241 Ga. App. 869, 528 S.E.2d 293 (2000).

- Refusal to give charges not error. Houck v. State, 173 Ga. App. 388, 326 S.E.2d 567 (1985); Williams v. State, 180 Ga. App. 854, 350 S.E.2d 837 (1986).

Portion of a request to charge that, "whether intent to commit a felony or a theft is present is usually a jury question, but where, through unconsciousness, drunkenness, or other cause, there can be no intent, this would be a defense to a criminal charge," was misleading to the extent that it implied that voluntary intoxication in and of itself may be a defense to a crime, and the trial court did not err in refusing the requested charge. Tutton v. State, 179 Ga. App. 462, 346 S.E.2d 898 (1986).

Instruction that "voluntary intoxication shall not be an excuse for any criminal act" was sufficient. The trial court was not required to charge that defendant should be acquitted if defendant was intoxicated to the point where defendant could not form the requisite intent for the crimes of attempted armed robbery and aggravated battery. Franklin v. State, 183 Ga. App. 58, 357 S.E.2d 879 (1987).

It is not error to refuse to charge that voluntary intoxication can negate the specific intent for a crime. Mitchell v. State, 187 Ga. App. 40, 369 S.E.2d 487, cert. denied, 187 Ga. App. 908, 369 S.E.2d 487 (1988); Clark v. State, 187 Ga. App. 232, 369 S.E.2d 550 (1988).

Even though trial court's charge was not clear on the issue of whether voluntary intoxication can be considered a defense to a crime, defendant failed to show how defendant was harmed by the charge; thus, reversal was not required. Rattansay v. State, 240 Ga. App. 165, 523 S.E.2d 36 (1999).

- As voluntary intoxication was not an excuse for a criminal act, pursuant to O.C.G.A. § 16-3-4(c), counsel was not ineffective for failing to present a defense predicated on a lack of criminal intent due to alcohol intoxication. Leppla v. State, 277 Ga. App. 804, 627 S.E.2d 794 (2006).

Application to Specific Crimes

Fact of intoxication will not lessen character or degree of malice apparent from circumstances.

- If defendant was in a state of drunkenness by voluntary use of intoxicating liquor, and circumstances of killing were such as to show an abandoned and malignant heart, fact of intoxication will not lessen or affect character or degree of malice. Bradberry v. State, 170 Ga. 870, 154 S.E. 351 (1930).

Trial court did not err in refusing to allow the defendant to call a forensic toxicologist as a newly-discovered exculpatory witness to testify about the defendant's blood-alcohol level at the time the defendant's spouse was shot in the head, as voluntary intoxication was not an excuse for a criminal act and other evidence that the defendant had been drinking on the night of the shooting had already been admitted. Rowe v. State, 276 Ga. 800, 582 S.E.2d 119 (2003).

Evidence was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of the crimes for which the defendant was convicted as the jury was free to reject the defendant's claim that the defendant was involuntarily intoxicated and acting in self-defense at the time that the defendant shot and killed the victim. Cox v. State, 306 Ga. 736, 832 S.E.2d 354 (2019).

- Simply to prove that a person was drunk and killed another in passion would not reduce crime from murder to manslaughter. Bradberry v. State, 170 Ga. 859, 154 S.E. 344 (1930).

Habeas court erred in granting relief to a petitioner on a malice murder conviction on the basis of ineffective assistance of counsel because counsel's defense theory of innocence was not unsupported by the evidence, and there was no evidence of sudden passion supporting a proposed theory of voluntary manslaughter under O.C.G.A. § 16-5-2(a). Petitioner's intoxication likewise would not support a theory of voluntary manslaughter. Hall v. Lewis, 286 Ga. 767, 692 S.E.2d 580 (2010).

- Trial court was not required to charge that defendant should be acquitted if defendant was intoxicated to the point where defendant could not form the requisite intent for the crimes of burglary and aggravated sexual battery. Sydenstricker v. State, 209 Ga. App. 418, 433 S.E.2d 644 (1993).

- Evidence was sufficient to support the defendant's burglary conviction since the jury decided that evidence of the defendant's intoxication did not disprove intent. In addition to testimony about television wires having been disconnected from various devices in the victim's house, one witness testified that the television was sitting upright on the floor, not face-down, despite the defendant's testimony that the defendant had knocked the television off the stand. Dillard v. State, 323 Ga. App. 333, 744 S.E.2d 863 (2013).

- One who can voluntarily shoot is capable of malice, unless one can plead some infirmity besides drunkenness. To be too drunk to form intent to kill, one must be too drunk to form intent to shoot. Marshall v. State, 59 Ga. 154 (1877); Cone v. State, 193 Ga. 420, 18 S.E.2d 850 (1942).

Person, sober enough to intend to shoot at another, and actually to shoot at and hit that person, without any provocation or justification whatever, is to be deemed sober enough to form specific intent to murder; and mere drunkenness, whatever its degree, will not negative such intent. Bradberry v. State, 170 Ga. 859, 154 S.E. 344 (1930).

- While drunkenness may be a circumstance from which the jury may infer that one who has taken and carried away another's property did not intend to steal the property, still, if intention to steal is present, drunkenness is no excuse for the crime, even though intent to steal is caused by the drunkenness itself. Greeson v. State, 90 Ga. App. 57, 81 S.E.2d 839 (1954).

- Defendant's claim that the state used a voluntary intoxication charge as a "red flag" to the jury that the defendant was drunk and therefore was "an unsavory character," that the victim's parents now might question their decision "to invite this intoxicated man into their home," and that the defendant had "major psychological problems" was rejected; there was evidence from which an inference or deduction might be made that the defendant was drunk on the afternoon in question. Byers v. State, 276 Ga. App. 295, 623 S.E.2d 157 (2005).

- Trial court properly instructed the jury on voluntary intoxication in the defendant's trial for child molestation because there was evidence that: (1) the defendant was drinking on the night before and on the day the incident occurred; (2) the defendant told an interviewing agent that the defendant "probably" consumed four or five beers on that day and that the defendant would not have driven a car; (3) the defendant insisted that the defendant was not "intoxicated" by the defendant's definition of the word; and (4), the defendant estimated that the defendant drank three or four beers on the afternoon of the incident. Byers v. State, 276 Ga. App. 295, 623 S.E.2d 157 (2005).

Drug addiction presents no defense unless it results in involuntary intoxication. Goldsmith v. State, 148 Ga. App. 786, 252 S.E.2d 657 (1979).

- See Cribb v. State, 118 Ga. 316, 45 S.E. 396 (1903); Strickland v. State, 137 Ga. 115, 72 S.E. 977 (1911).

- McLaughlin v. State, 236 Ga. 577, 224 S.E.2d 412 (1976).

Chronic drug abuse, like chronic alcoholism, is not involuntary under the law. Mitchell v. State, 187 Ga. App. 40, 369 S.E.2d 487, cert. denied, 187 Ga. App. 908, 369 S.E.2d 487 (1988).

When a defendant relies upon involuntary intoxication because of mandatory medication as a defense to criminal prosecution, the defendant bears the burden of showing by a preponderance of the evidence that defendant was not mentally responsible at the time of the alleged crime. Rauschenberg v. State, 161 Ga. App. 331, 291 S.E.2d 58 (1982).

- If a defendant charged with driving under the influence of drugs would otherwise be entitled to an instruction under O.C.G.A. § 16-3-4, such an instruction would be required to be given without regard to whether the drug involved was legally prescribed or not. Flanders v. State, 188 Ga. App. 98, 371 S.E.2d 918 (1988).

Trial court properly refused defendant's requested instruction when, although defendant produced evidence that defendant was not aware that a prescribed medication could affect defendant's ability to drive, there was no evidence that defendant did not have sufficient mental capacity to distinguish between right and wrong by reason of intoxication. Flanders v. State, 188 Ga. App. 98, 371 S.E.2d 918 (1988).

RESEARCH REFERENCES

Am. Jur. 2d.

- 21 Am. Jur. 2d, Criminal Law, § 48. 29 Am. Jur. 2d, Evidence, § 570. 75 Am. Jur. 2d, Trial, § 277. 75A Am. Jur. 2d, Trial, § 611 et seq.

Lack of Capacity to Form Specific Intent - Voluntary Intoxication, 5 POF2d 189.

Punitive Damages in Motor Vehicle Litigation - Intoxicated Driver, 18 POF3d 1.

- 22 C.J.S., Criminal Law: Substantive Principles, § 147.

- Drunkenness as affecting existence of elements essential to murder in second degree, 8 A.L.R. 1052.

Voluntary intoxication as defense to homicide, 12 A.L.R. 861; 79 A.L.R. 897.

Effect of voluntary drug intoxication upon criminal responsibility, 73 A.L.R.2d 12.

Modern status of the rules as to voluntary intoxication as defense to criminal charge, 8 A.L.R.3d 1236.

When intoxication deemed involuntary so as to constitute a defense to criminal charge, 73 A.L.R.3d 195.

Validity, construction and effect of Uniform Alcoholism and Intoxication Treatment Act, 85 A.L.R.3d 701.

Adequacy of defense counsel's representation of criminal client - conduct occurring at time of trial regarding issues of diminished capacity, intoxication, and unconsciousness, 78 A.L.R.5th 197.

Adequacy of defense counsel's representation of criminal client - pretrial conduct or conduct at unspecified time regarding issues of diminished capacity, intoxication, and unconsciousness, 79 A.L.R.5th 419.