I concur in the result reached by Judge Fahy, and in Parts I and III of his opinion. My reasons for doing so are stated hereinafter.
It was not argued to us on this appeal that we invalidate the D.C.Code provision against public intoxication on its face or as applied to any and all people found drunk in public places. What we were urged to do was to say that henceforth in this jurisdiction one charged with public drunkenness may assert chronic alcoholism as a defense and introduce evidence in support of that defense. This is what I consider we are doing in this case; and I agree that a remand is unnecessary only because the evidence of chronic alcoholism as to this appellant is clear.
We may, in my view, summon this defense into being because we have both the authority and the duty to shape the criminal jurisprudence of the District of Columbia in accordance with civilized notions of justice. We are not like the ten other federal courts of appeals, whose authority over state criminal law derives only from the commands of the Constitution. In particular, we are not in the position of the Fourth Circuit when, in Driver v. Hinnant, 356 F.2d 761 (1966), it decided that the Eighth Amendment barred the conviction and imprisonment of a chronic alcoholic under a North Carolina statute directed at public drunkenness.
Our authority in this regard exists in any event, absent only an affirmative and valid legislative proscription of what we propose to do. Far from there being in effect such a veto by Congress in this instance, our duty to do as we do here is, if not compelled, at least strongly indicated and emphasized by the Act of August 4, 1947. In that statute Congress exhibited an extraordinarily sensitive awareness of the problems of acute alcoholism and enacted a singularly enlightened — and non-criminal — approach to be followed in this jurisdiction. Had Congress acted to implement this statute with the necessary appropriations and facilities, this appeal would presumably never have reached us. The substantive statute remains on the books. Only the implementation is missing.
The urgent need of that implementation is accentuated by what we do today. The community will not tolerate uncontrolled drunkenness in public places, and will insist that the police act to remove it as before. The power of the police in this respect is, in my view, unaffected by today’s ruling.1 But it does underscore *61the necessity of coming to grips with the ultimate disposition of the chronic alcoholics among those so removed. Congress has already done so in the 1947 Act. All it needs to do now is to put some flesh on those bones.
DANAHER, Circuit Judge, with whom BURGER and TAMM, Circuit Judges, join, concurring in the result:
I join Judge McGowan in concluding that “a remand is unnecessary only because the evidence of chronic alcoholism as to this appellant is clear.” I share his view that we have here been asked to say that henceforth “one charged with public drunkenness may assert chronic alcoholism as a defense and introduce evidence in support of that defense.”
My real problem stems from the alternative clause in D.C.Code § 24-502 (1961). Its definition of a “chronic alcoholic” as one “who chronically and habitually uses alcoholic beverages to the extent that he has lost the power of self-control with respect to the use of such beverages,” is clear enough. As here applied, so far, so good.
But the statute goes on to extend that category to include one who “while under the influence of alcohol endangers the public morals, health, safety, or welfare.” (Emphasis added.)
I am confident that Congress in its obvious purpose of seeking means for accomplishing the possible rehabilitation of the unfortunate victims of alcoholism had no thought whatever of addressing itself to some revised standards for determining criminal responsibility as to yet other crimes than public drunkenness. I wish to note my complete understanding that we are not now doing so. All too often this court has been confronted with circumstances of crime where intoxication has been urged as a ground of exculpation. See, e. g., Bishop v. United States, 71 App.D.C. 132, 135-136, 107 F.2d 297, 301-302 (1939); Heideman v. United States, 104 U.S.App.D.C. 128, 259 F.2d 943 (1958), cert. denied, 359 U.S. 959, 79 S.Ct. 800, 3 L.Ed.2d 767 (1959).
Obviously the application of any rule of law will depend upon the circumstances of a particular case. In the instant situation this appellant meets the definition of a chronic alcoholic because, by reason of his habitual use of alcoholic beverages, he “has lost the power of self-control with respect to the use of such beverages.”
. The Fourth Circuit has said in Driver:
We do not annul the North Carolina statute. It is well within the State’s power and right to deter and punish public drunkenness, especially to secure others against its annoyances and intrusions. Robinson v. California, supra, 370 U.S. 600, 664 [82 S.Ct. 1417, 8 L.Ed.2d 758]. To this end any intoxicated person found in the street or other public areas may be taken into custody for inquiry or prosecution. But the *61Constitutíon intercedes when on arraignment the accused’s helplessness comes to light. Then it is that no criminal conviction may follow.
And the brief submitted to us for appellant characterized as “an unwarranted misrepresentation” the prosecution’s claim that acceptance of his argument “would paralyze the efforts of the Metropolitan Poliee to keep drunks off the public streets.” The rationale of this characterization was said to be that the “defense [of chronic alcoholism] could neither be raised, nor resolved, until trial. That a defendant may be able to establish an absolute defense to the charge for which he is tried does not impair the validity of his arrest and prosecution * *