Michael v. State

Per Curiam. Appellant was convicted on April 1, 1966 by the Circuit Court for Allegany County, sitting without a jury, of assault with intent to have carnal knowledge of a female child under the age of fourteen years. On appeal from that judgment, appellant’s sole contention is that he was so intoxicated at the time of the crime as to be incapable of forming the criminal intent necessary to support his conviction. ²⁴⁶ The evidence adduced at the trial showed that approximately 9:00 p.m. on the evening of December 23, 1965, Mrs. Norma Gabbert left her home to visit a friend, leaving her four children in the care of a teenage male babysitter. At her friend’s house, Mrs. Gabbert was joined by appellant and one Riggleman, both of whom were drinking.

Mrs. Gabbert, appellant and Riggleman then- returned to the Gabbert home. Appellant remained in the Gabbert house with the babysitter, who was asleep, while Mrs. Gabbert and Riggleman went to the store. At that time, both a television set and a record player were turned on. Mrs. Gabbert’s daughter, Dianne, then three years of age, was sleeping on a couch in the same room where appellant was sitting.

The other three Gabbert children were asleep-on the second floor of the home. The evidence further indicated that appellant carried Dianne upstairs to a bedroom where her two brothers were sleeping; that one of these children, Charles, age seven, was awakened by Dianne crying; that appellant had removed Dianne’s pants and that when Charles tried to put them back on Dianne, the appellant knocked him down. Charles testified that appellant placed Dianne on his bed and was on his stomach on top of her and trying to hug her. He further testified that he and his younger brother remained in the bedroom hitting appellant on the back until finally appellant ordered the two children to leave the room.

Shortly thereafter, Mrs. Gabbert returned home and, upon hearing Dianne crying, ran upstairs and discovered appellant lying on the bed on top of her. Mrs. Gabbert testified that she pulled the appellant off the child, observed that she did not have any underpants on, that her skirt and blouse were pulled up over her waist, and that the appellant’s pants were open and his privates out on the child’s leg. She testified that appellant tried to cover up the front of his pants and his exposed penis. Mrs. Gabbert took Dianne downstairs.

The babysitter was still asleep. 1 Appellant also returned to the first floor where Mrs. Gabbert hit him in the head with a glass. Appellant threatened to have Mrs. Gabbert arrested for striking him ²⁴⁷ but, according to her testimony, appellant said, “* * * if you keep your mouth shut I will keep mine.” The appellant testified that he was an excessive drinker and that on the day of the crime he shared three fifths of whiskey with some of his friends, drank some beer and also bought a half pint of whiskey. The arresting police officers testified that they arrested appellant between 2:00 a.m. and 2:10 a.m. (approximately two hours after the assault took place), that the appellant was drunk, that he was staggering and very wobbly on his feet, that his face was red, and that his eyes were bloodshot.

In Maryland, as elsewhere, voluntary drunkenness is generally not a defense to crime. Clark v. State, 236 Md. 648 (1964); Martin v. State, 228 Md. 311 (1962); Lipscomb v. State, 223 Md. 599 (1960); Saldiveri v. State, 217 Md. 412 (1958); 7 M.L.E. Criminal Law, Section 23; 22 C.J.S. Criminal Law, Section 66. It may, however, be considered by the triers of fact as bearing upon the state of mind of the accused. Stansbury v. State, 218 Md. 255 (1958).

Where a particular motive, intent or purpose is an essential element of a crime, drunkenness may be considered in determining whether or not the