(concurring in part and dissenting in part):
I agree with the author of the principal opinion save as exceptions are taken hereafter.
II
Judge Latimer is perhaps correct in his criticism of the Chief Judge’s too heavy reliance on the possibility of incorrectness of the second instruction requested by the defense — although the principal opinion certainly does not ignore the point made by the former. The test would seem to be whether the requested instruction put the law officer bn notice to clarify or supplement some part of his previous charge. Here the evidence seems to me to have raised reasonably the possibility that the accused believed the prosecutrix was acceding to his overtures. The principal opinion suggests that such a belief, to be effective, must be both reasonable and honest. For this its author cites United States v. Perruccio, 4 USCMA 28, 15 CMR 28, where an unreasonable —and thus negligent — mistake of fact was deemed no defense to a prosecution for negligent homicide. On the other hand, a mistake of fact may be negligent and yet negate the intent or knowledge required for conviction of certain offenses. United States v Lampkins, 4 *446USCMA 31, 15 CMR 31. Within which category do rape and assault with intent to commit rape fall?
Rape — like unpremeditated murder— has ordinarily been treated as requiring only a general criminal in tent. Thus, drunkenness, even in excessive degree, would probably not constitute a defense to this crime — that is, as serving to belie the accused’s necessary intent. However, assault with intent to commit rape would seem to occupy a quite different position — since the very designation of the offense indicates the requirement of a specific intent. Clearly, then, drunkenness could operate to negate the intent required for conviction of such an assault. An unreason able mistake of fact could perhaps not serve to deny criminal liability for a consummated rape. But could it negative the prerequisites for a finding of guilt of assault with intent to commit rape— just as an unreasonable mistake of fact is said to destroy liability for larceny by false pretenses? See United States v. Rowan, 4 USCMA 430, 16 CMR 4.
The Chief Judge seeks to distinguish rape from assault with intent to rape as a step in his holding that certain action by the law officer, which would have prejudiced the accused in a rape trial, could not have prejudiced him under the present charge. My concern is whether — as to the second requested defense instruction — this distinction operates in reverse?
Ill
Assault with intent to commit rape demands proof of an assault on the prosecutrix accompanied by an intent to have unlawful sexual intercourse by force and without her consent — a purpose to overcome any resistance by force. Manual for Courts-Martial, United States, 1951, paragraph 213d (1) (c). If the woman consents to the application of force to her body, there would presumably be no assault in the first instance. Of course, if she had consented to sexual intercourse — that is, if her “will” favored such a result —she would also ordinarily have consented to that fondling which frenuently precedes the act of coition. Thus, acts like those before us here would not partake of their usual character of a battery. See Manual, supra, paragraph 207a, page 371.
Ignorance or mistake of fact — if reasonable — normally provides a defense to an accused. Manual, paragraph 154a (3). Ignorance of law usually constitutes no excuse — although it may negate the existence of the specific intent required in Certain offenses. Idem, paragraph 154a (4). While consent in some areas may be a matter of law— cf. United States v. Wilcher, 4 USCMA 215, 15 CMR 215 — I would suppose that the type of consent with which we are now dealing is “factual” in nature, and that a mistake as to the woman’s attitude would constitute one of fact. Thus, if the accused believed reasonably' that the Japanese girl here was consenting to his proposals, he would be exonerated, I should think, even from the crime of assault. On the other hand, an unreasonable mistake on his part would not affect his liability for assault, in violation of the Uniform Code, Article 128, 50 USC § 722.
But if an assault is to be found here —on the theory there was neither consent nor a reasonable mistake with regard thereto — does not the accused’s mistake reenter the picture? One possibility is that the trier of fact may conclude that the girl did not consent, and that no reasonable man would have thought she did, but that the accused— because of drunkenness or some variety of mild sexual complex which destroyed his realism- — genuinely believed that she was acquiescent. His purpose simply was to enjoy sexual relations with her under the circumstances presented to him. Those circumstances he unreasonably construed to amount to an invitation on her part. However, he did not intend coitus under any other circumstances. This might be because (a) he did not desire intercourse without full consent; or (b) because he was just not the sort of person who worries about hypothetical problems. When an accused fondles a woman against a background of the frame of mind just mentioned, I would suppose him to be wanting in that variety of criminal purpose *447required for assault with intent to rape. One may well lack an intention to overcome resistance when nothing is present which seems to suggest the possibility of its presence.
It may be regarded as anomalous to conclude that an accused may be exonerated from guilt of assault with’ intent to commit rape because of an unreasonable mistake, whereas he could have been convicted lawfully of rape had penetration been effected under the same misapprehension. It is to be observed, however, that the anomaly is no greater than that involved in holding that an assault with intent to murder requires a specific intent to kill, whereas the crime of murder may be made out with a lesser intent. See United States v. Woodson, 3 USCMA 372, 12 CMR 128. The fact of the matter is that a specific intent is, by definition, required for the present finding. The evidence, in my view, raised the possibility that a mistake of fact on the accused’s part precluded that intent.
IV
Two possible questions remain for consideration. The first has to do with whether the substance of the defense’s second requested instruction — re- ■ jected by the law officer — was covered adequately by other parts of his charge. And the second relates to whether— under the doctrine of United States v. Baguex, 2 USCMA 306, 8 CMR 106— we should affirm as to simple assault, and return to the board of review for reassessment of sentence. These will be considered in the order mentioned.
Regardless of whether the offered— and denied — instruction was entirely accurate in phrasing, it is manifest that the law officer was put on notice to see to it that the court-martial was instructed correctly on mistake of fact. Thus, I agree with Judge Latimer that a request for such a charge was distinctly made. I disagree with both him and the Chief Judge, however, in their view that “nothing in the instant request suggested a material issue that was not adequately covered in the general instructions.” I have earlier suggested the materiality of the issue of mistake of fact; and an evaluation of the instructional total convinces me that this issue was not covered therein with that degree of explication to which the accused was entitled. I am as unfriendly as the next judge toward the fault of overinstruction, and as unwilling as any to place unnecessary instructional burdens on the back of the law officer. However, none can be more anxious than I for assurance that relevant issues are pointed up to the court-martial in a clear and comprehensible manner. I have frequently suggested elsewhere that, when reasonably raised by the evidence and requested, I believe that a criminal defendant is entitled to have his theory of the case put to the court in sharp and unmistakable terms. I do not think this was done here.
It follows from what has been said that, as to mere assault, the accused is not entitled to an instruc- tion on mistake of fact, unless the possibility of a reasonable mistake was raised by the evidence. On the other hand, as i'o assault with intent to rape, he is so entitled regardless of reasonableness. It is not necessary that I determine the question of reasonableness here, for I am not at all disposed to affirm as to assault and return to the board of review. Although this course is open to us, we are not required to follow it. United States v. Baguex, supra.
V
I would reverse the decision of the board of review and order a rehearing.