Opinion of the Court
Homer FeRGüson, Judge:Accused was charged with assault with intent to commit rape, in violation of Uniform Code of Military Justice, Article 134, 10 USG § 934. He was found guilty of indecent assault, in violation of the same Article. With some reduction in the sentence, intermediate appellate authorities affirmed, and we granted review on the issue whether the law officer erred in failing to instruct upon the effect of intoxication upon the specific intent to gratify his sexual desire involved in the lesser crime.
Evidence adduced at the trial revealed that the victim was suddenly attacked in the latrine of the building in which she resided. Fortunately, her resistance to the assault proved successful, and her assailant fled. She was under the “impression” that he was blond and wore a checked shirt and light trousers. Her roommate observed a tall blond man leaving the latrine immediately after hearing the victim’s screams. Neither the victim nor the roommate could recall seeing the accused, a small Negro airman, in the building.
Other witnesses in nearby quarters heard the victim’s cries and left their residence. They saw accused running near the barracks in which the offense occurred and chased him. They eventually succeeded in capturing him. At the time of his apprehension, accused was naked from the waist up. At his own request, he was taken to the Air Police Station. En route, he admitted that he accompanied an unidentified friend to the victim’s residence and waited outside while the other entered the latrine. He claimed to have fled when he heard the screams. At the Air Police Station, a bite mark, conforming to one allegedly inflicted by the victim, was discovered on his right side. When this was pointed out to him, accused went “berserk” and had to be forcibly restrained. Eventually, he was taken to the hospital.
On the following day, accused executed a voluntary statement in which he confessed to the assault on the victim.
One of the prosecution witnesses who testified regarding the accused’s apprehension also declared that he had seen him earlier in the evening. On cross-examination, defense counsel drew from him considerable information regarding accused’s sobriety. Thus, the witness stated “I would say that he had had quite a bit of alcohol to my knowledge.” He further testified that there was an “obvious smell” of alcohol on accused’s breath when the parties arrived at the Air Police Station.
*151Captain Ralph. S. Metheny, a medical officer, testified for the prosecution regarding accused’s admission to the hospital on the night of the incident. He related that accused was admitted “in a state of alcoholism, with signs of recent injury on his body.” On cross-examination, he testified that accused had been drinking, had a strong odor of alcohol on his breath, “and lapsed into unconsciousness shortly after his arrival.” Initially, accused was violent and repeatedly rammed his head against the wall. He was in “a state of acute alcoholism.” No blood test was given “because of his inability to agree to such a test being made.” It was Dr. Metheny’s impression that accused’s unconsciousness resulted from his alcoholic condition.
There can be no doubt that the foregoing evidence is sufficient to raise an issue concerning whether accused was too intoxicated to possess the capacity to entertain the specific intent involved in the offense of which he was found guilty. United States v Morphis, 7 USCMA 748, 23 CMR 212; United States v Backley, 2 USCMA 496, 9 CMR 126. Indeed, accused’s bizarre actions at the Air Police Station and hospital, as well as his final lapse into unconsciousness, indicate he “was intoxicated to the point of ambulatory stupefaction.” United States v Miller, 2 USCMA 194, 195, 7 CMR 70. Moreover, the law officer recognized the existence of the issue, for he instructed on the effect of accused’s drunkenness with respect to his capacity to entertain the specific intent to rape involved in the crime charged. See United States v Morphis, supra, at page 755. To be sure, there was evidence from which a state of sobriety more compatible with the existence of the requisite intent might have been inferred, but it is not our duty to assume the role of fact finders — a function which is quite beyond the scope of the authority granted us by the Code. Code, supra, Article 67, 10 USC § 867. Accordingly, it is clear that an instruction should have also been given by the law officer with respect to accused’s capacity to entertain the specific intent to gratify his sexual desires, a necessary element of indecent assault, the lesser offense of which he was convicted. United States v Miller, supra; United States v Backley, supra. His failure to do so requires reversal.
The thrust of the dissenting opinion is directed to the proposition that the defense case turned upon the question of an alleged failure to identify the accused as the victim’s assailant and the lack of evidence to establish that he intended ultimately to overcome her resistance to his advances by force and violence. The principal support for this belief is said to be found in the scope of the defense counsel’s final argument and his cross-examination of Government witnesses. The latter consideration simply lacks validity in face of the fact that, in almost every instance, it was the defense counsel who adduced evidence of accused’s drunkenness through his interrogation of the prosecution witnesses. Thus, as noted above, it was he who developed the opinion that accused was drunk earlier in the evening and upon his arrival at the Air Police Station. It was also he who established that accused had been diagnosed as suffering from acute alcoholism and was too drunk to consent to the taking of a blood sample. Finally, it was he who, in his cross-examination, first adverted to the fact that accused persisted, both at the Air Police Station and at the hospital, in ramming his head aginst the wall and in other violent episodes. In light of this action on counsel’s part, it is hardly permissible to contend that his cross-examination was not intended to introduce into the case a question of accused’s capacity to entertain a specific intent.
The rationale with regard to the defense counsel’s final argument is subject to the same defect. While it is true that he adverted to other theories during his summation, it is also clear beyond cavil that he intended to place before the court-martial the legal effect of accused’s drunkenness. Thus, he stated in his closing argument:
. . Let’s assume for a minute to begin with that the accused’s identity had been established in this case, that the witnesses that you heard— *152the victim of the case and her friend —had definitely established the identity of this accused as the person who made the attack. Let’s assume that this point is not in question, and let’s see then whether you could find the accused guilty of assault with intent to commit rape beyond a reasonable doubt.
“It is the contention of the defense that there is no evidence to prove that whoever committed that attack on Miss Parellada did so with intent to commit rape. To begin with, if this were the accused, the evidence before you would indicate that he was in an acute alcoholic condition. To have intent, there must be a positive, definite, premediatated [sic] thought as to actually culminating an act of rape. This has not been proved. The most that the prosecution can even ask of you is to infer from the circumstances.
“I think it’s highly unlikely that a person in the state of sobriety as apparently the accused was, assuming he made the attack, could have the requisite intent or such requisite intent to be inferred from the circumstances that the prosecution has presented before you. Probably, if this were the accused, he didn’t even know why he was there. If someone had stopped him in that area, I sincerely suspect he could not have given a reason as to why he was there.”
The foregoing extract removes all force from the contention that there was a deliberate selection of issues on the part of the defense counsel and that he did not intend to raise the question of accused’s intoxication. Thus, there is no basis for reliance upon our holding in United States v Bowers, 3 USCMA 615, 14 CMR 33, wherein the sole defense advanced was that of alibi and counsel deliberately avoided any mention of intoxication on the basis that it would clearly weaken an otherwise substantial defense. As we there noted, at pages 619-620:
“. . . A successful appellate system cannot be built if we are to permit an accused to elect one course at the trial level and then, if that turns out disastrously, grant him a reversal so that he may have a chance to retry the case on a theory he previously rejected.” [Emphasis supplied.]
The situation is quite different when an accused is not willing to risk his future upon the single question of identity, particularly when that appears to be solved by his confession, and desires that the fact finders also consider whether his capacity for drink eliminated his capacity to intend.
In sum, then, the evidence of intoxication placed in issue accused’s capacity to entertain the specific intent to gratify his lust and the law officer’s failure fully to instruct the court members with respect thereto was prejudicial error.
The decision of the board of review is reversed, and the record of trial is returned to The Judge Advocate General of the Air Force. A rehearing may be ordered.