FRANK A/K/A BEAN v. State

Thompson, J., delivered the opinion of the Court. Daniel Allen Frank, the appellant, complains of a conviction for rape in the Circuit Court for Montgomery County, Judge Irving A. Devine presiding with a jury. Fie was sentenced to a term of 15 years. He was acquitted of charges of assault with intent to murder and assault with intent to rape.

In view of the contentions hereinafter set forth it will be unnecessary to recite the facts except to state that there was ample evidence to show that Frank engaged in sexual intercourse against the will of the female involved and that there was some evidence that he was highly intoxicated at the time the act occurred. The trial judge instructed the jury in part as follows: “You are instructed that where a particular motive, intent or purpose is an essential element of a crime, drunkenness may be considered in determining whether or not the accused lacked the mental capacity to form the requisite motive, intent or purpose and if a sufficient mental incapacity is found to exist, drunkenness may constitute a defense to the particular offense charged. “In such event, the Defendant must show that he was so intoxicated that he was robbed of his mental faculties and he will be considered criminally responsible so long as he retains control of his mental faculties, sufficiently to appreciate what he is doing. “This particular instruction has reference to the charges of assault with intent to commit murder, and assault with intent to commit rape because, as you will notice, by their very statement, they each would require—either one would require proof of a specific intent. ³³⁴ “This instruction which the Court gives you refers • specifically to those charges which do require proof of such an intent.” Frank duly excepted to the charge alleging that it was error for the trial judge not to include the crime of rape in the above quoted portion of the charge. He contends that rape requires a specific intent; and therefore drunkenness could, under the proper circumstances constitute a defense to rape as well as to assault with intent to rape and assault with intent to murder. Thus the issue is: Does the crime of rape require proof of a specific intent to support a conviction?

We hold that it does not. It is universally recognized that voluntary drunkenness is generally not a defense to crime, see Michael v. State, 1 Md. App. 243, 247 , 229 A. 2d 145 wherein we collected the various authorities. Although the older law made no exceptions it is now equally well settled that where a crime requires a specific intent, motive, or purpose, voluntary drunkenness may be considered in determining whether or not the accused lacked the mental capacity to commit the crime, see Avey v. State, 249 Md. 385 , 240 A. 2d 107 ; Mock v. State, 2 Md. App. 771, 237 A. 2d 811 ; Dubs v. State, 2 Md. App. 524, 235 A. 2d 764 ; Michael v. State, supra. 1 This problem has been considered in several recent cases: In Askew v. State, 118 So. 2d 219, 222 (Fla. 1960) the Supreme Court of Florida disposed of a similar- contention stating: “The law makes the act of rape the crime and infers a criminal intent from the act itself. “Since the requisite intent is presumed or inferred from the act itself voluntary intoxication is only a defense to the crime of rape when its use produces a mental condition of insanity.” ³³⁵ In State v. Tompkins, 277 S.W.2d 587, 591 (Mo. 1955) the Supreme Court of Missouri stated as follows: “This was a forcible rape case, and if the evidence showed that there was carnal knowledge, force and the commission of the act, no intent is requisite other than that evidenced by the doing of the acts constituting the offense.” In State v. Scarborough, 55 N. M. 201, 230 P. 2d 235 (1951) the Supreme Court of New Mexico arrived at the same conclusion. In Walden v. State, 156 S.W.2d 385, 387 (Tenn. 1941) the Supreme Court of Tennessee reiterated the rule set forth above: “In the crime