
    Submitted May 27,
    affirmed June 10, 1971
    STATE OF OREGON, Respondent, v. LARRY CURTIS NICHOLS, Appellant.
    
    485 P2d 634
    Gary D. Babcock, Public Defender, Salem, for appellant.
    John L. Snyder, District Attorney, Dallas, for respondent.
    Before Schwab, Chief Judge, and Langtry and Foley, Judges.
   PEB CUBIAM.

Defendant upon trial by the court was found guilty of burglary not in a dwelling under OBS 164.240. His sole assignment of error on appeal is that the court erred in fading on its own motion to find the defendant not gudty because he was too intoxicated from ingestion of alcohol and tranqudizers to form the requisite criminal intent.

Even if this assignment of error was properly before us, it would avail the defendant nothing. The trial judge specificady found that the defendant had the capacity to formulate the intent necessary to the crime charged, and the record discloses ample evidence to support the judge’s finding.

Affirmed.  