concurring in result.
I concur in the result of the majority, but would point out that I do not agree with the language used by the majority in disposing of the question raised by defendant's tendered instructions numbered 6, 7 and 8.
Although in 1980 the legislature did pass IC § 385-41-8-5(b), which provides:
"(b) Voluntary intoxication is a defense only to the extent that it negates an element of an offense referred to by the phrase 'with intent to' or 'with an intention to'" [IG 35-41-3-6, as added by Acts 1976, P.L. 148, § 1; 1977, P.L. 340, § 11; 1980, P.L. 205, § 1.]
I believe the statute to be an anomaly in legal language. Apparently the legislature wrote this amendment to the statute in response to our holding in Williams v. State, (1980) 278 Ind. 105, 402 N.E.2d 954.
Although the Court of Appeals has rendered a decision much the same as the majority in this case, in holding that the words in the statute "with intent to" or "with an intention to" are not contained in the robbery statute, Smith v. State, (1982) Ind.App., 441 N.E.2d 984, I believe that interpretation to be unreasonable, and not in keeping with past cases on statutory interpretation.
The murder statute, the same being IC § 35-42-1-1, reads in pertinent part as follows:
"A person who:
(1) Knowingly or intentionally kills another human being; ...."
To hold that this statute does not contain the language required in the voluntary intoxication statute, to me is a strain of statutory interpretation. The murder statute clearly requires an intentional act on the part of the perpetrator. To interpret the statute to require the specific language that is contained in the quotes of the statute is to make the statute ludicrous indeed. This I would not do.
However, I have a more fundamental disagreement with the majority opinion in this regard, in that I feel the statute is wholly unworkable in its total concept. It is fundamental in criminal law that there is no such thing as a crime without a mens rea.
In some cases courts have, while acknowledging the necessity of mens rea, discussed what they term "strict or absolute criminal responsibility." See Smith v. *241California, (1959) 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205; Noble v. State, (1967) 248 Ind. 101, 228 N.E.2d 755. See also Hall, Ignorance and Mistake in Criminal Law, 38 Ind.L.J. 1 (1957). However, it is submitted that a close examination of these cases leads one to believe the so-called "strict responsibility" is not responsibility devoid of mens rea, but rather an implied mens rea.
Smith v. California, supra, cites United States v. Balint, (1922) 258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604, for the proposition that a state may impose strict liability, Le. no intent needed in food and drug cases. However, in so holding the court first ree-ognized the general rule that scienter was a necessary element of every crime, but then observed an exception in certain cases "under statutes the purpose of which would be obstructed by such requirement." Id. at 252, 42 S.Ct. at 302, 66 L.Ed. at 605. Here again, upon reading the entire opinion, the court appears to really be recognizing the practical necessity of implying intent rather than holding it totally unnecessary.
I would take the position that every crime requires intent of some sort. In a crime like murder the intent must be to kill a human being. In a crime like involuntary manslaughter the intent to commit an unlawful act is the intent that is required. Some authors have gone so far as to say that crimes that were malum in se required intent, whereas crimes that were malum prohibitum did not require intent. See Gregory v. State, (1973) 259 Ind. 652, 655, 291 N.E.2d 67, 68; Sewell v. State, (1983) Ind., 452 N.E.2d 1018, 1020.
The mere fact that a crime is malum prohibitum does not obviate the necessity of the presence of intent. The situation is that when a matter is malum prokibitum, such as traffic laws, intent to violate the statute will be presumed from the action of the defendant. For instance, a court will not entertain the claim of a defendant who has been accused of running a traffic light that he did not see the light. He is charged with the responsibility of seeing the light and his actions will give rise to the presumption of this intent.
This is clearly demonstrated in the ma-lum in se crime of murder, where we will imply intent and malice from the use of a deadly weapon in a manner calculated to inflict personal injury on a human being. In either case, the presumption of intent, although raised as a matter of law, is in fact rebuttable.
In the traffic light situation where the defendant admits he was totally compos mentis as he drove through the red light, but merely claims he neglected to see it, his intent will be implied from his action. However, let us suppose that the defendant states, and can readily prove, that he was proceeding down the street in a lawful, attentive manner, but as he approached the light a small child playing at the side of the road threw a rock through the window of his car, striking him in the head and rendering him unconscious. While he was unconscious his car proceeded down the street and passed through the red traffic light. One would hope there is no judge on the bench in Indiana who would hold that the defendant nevertheless had passed through the light, although he was in a state of unconsciousness, and that he was therefore guilty of running a red light. Such a decision, of course, would be ludicrous to the extreme. However, this example serves to demonstrate that even in the running of a red light intent is a necessary element even though that intent may be implied in certain instances.
This brings us to the proposition in the case at hand wherein the majority holds that intoxication is a defense only in cases where the phrases "with intent to" or "with an intention to" appear in the statute. Although this is the exact language of the statute above quoted, it poses an impossible situation in eriminal jurisprudence. In order to form intent in any event the perpetrator must be acting consciously and competently. Any situation which renders the perpetrator incapable of forming intent frees him from the responsibility of his acts. Again, I refer to the hypothetical *242above cited concerning the driver of the automobile who is struck in the head by a rock and while unconscious passes through a red light in an intersection.
Similarly, if a completely non compos mentis inmate of a mental hospital managed to escape his guards, acquire a motor vehicle and speed into the traffic of the city, thereby violating one or more traffic laws, he of course could not be prosecuted because he is non compos mentis, not only incapable of standing trial, but also incapable of forming the intent to commit the act whether it be an act of malum in se or malum prohibitum.
Likewise, if intoxication, whether it be voluntary or involuntary, renders that individual so completely non compos mentis that he has no ability to form intent, then under our constitution and under the firmly established principles of the mens rea required in criminal law, he cannot be held accountable for his actions, no matter how grave or how inconsequential they may be.
In appellate cases, we also find a confusion in terminology with the uses of the words "general intent" and "specific intent." In Black's Law Dictionary 727 (5th ed. 1979), we find the definition given for "general intent" to be: "In criminal law, the intent to do that which the law prohibits. It is not necessary for the prosecution to prove that the defendant intended the precise harm or the precise result which eventuated." Under the definition of "specific intent", we find: "In criminal law, the intent to accomplish the precise act which the law prohibits; e.g. assault with intent to rape." We go back up to the top of that column on page 727 and we find within the definition of the word "intent", inter alia, "A mental attitude which can seldom be proved by direct evidence, but must ordinarily be proved by circumstances from which it may be inferred." Further we find: "A state of mind existing at the time a person commits an offense and may be shown by act, circumstances and inferences deducible therefrom."
When we turn in the same dictionary to page 1254, we find the definition of the word "specific" to be: "Precisely formulated or restricted; definite; explicit; of an exact or particular nature." It thus becomes apparent that to use the word "specific" in front of the word "intent" is to inject an unnecessary word. When speaking of intent so far as the working of the human mind is concerned, we are speaking of a specific mental process. When we say an actor had intent to do a certain thing, we add nothing whatsoever to the meaning by saying he had specific intent to commit the act.
On the other hand, what do we add when we add the word "general" to the word "intent"? To say that the person had general intent to commit some sort of act is not to say that he did not have specific intent, but is merely to say that we will imply "specific" intent from the nature of his acts. Thus, in the last few years, a state of confusion has been brought about by the use of inaccurate terminology.
In his book General Principles of Criminal Law (2nd ed. 1960), Professor Jerome Hall observes on p. 142:
"The current confusion resulting from diverse uses of 'general intent' is aggravated by dubious efforts to differentiate that from 'specific intent.! Each crime, as Stephen pointed out, has its distinctive mens rea, e.g. intending to have forced intercourse, intending to break and enter a dwelling-house and to commit a crime there, intending to inflict a battery, and so on. It is evident that there must be as many mentes reae as there are crimes. And whatever else may be said about an intention, an essential characteristic of it is that it is directed towards a definite end. To assert therefore that an intention is 'specific' is to employ a superfluous term just as if one were to speak of a 'voluntary act' It follows also that if some intentions are to be distinguished from others, the criteria selected to do that must be coherent with the specificity of all intentions. This provides one guide to a critical reading and improvement of current professional discourse in terms of 'general intent' and 'specific *243intent.' Insofar as these terms are used to refer to actual intentions, both of them are unfortunate, and the adjectives should be discontinued."
There is the element of intent which must be present in every crime. Sometimes intent can be directly proved by the actions or utterances of the perpetrator. However, as correctly stated in Block's Law Dictionary, referred to above, (intent) "must ordinarily be proved by cireumstance-es from which it may be inferred." To be accurate in the use of the english language, the intent in the mind of the perpetrator in either event is "specific." In neither event is it "general" whatever that may mean. In either situation we are merely speaking of the manner in which the state proceeds to convince the trier of fact that "intent" existed in the mind of the perpetrator.
I would therefore hold that in any crime the prosecution must fail if there is, in fact, a lack of intent, and that the inability to form intent may be demonstrated by various conditions of the mind including intoxication to the extent that intoxication has rendered the perpetrator non compos men-tis.
I would hold that IC § 85-41-3-5(b) is unconstitutional under Smith v. California, supra, and further that it violates the equal protection clause of the constitution in that it affords different defenses to persons in like cireumstances.
I would overrule the cases that have attempted to follow and implement the statute.
PIVARNIK, J., concurs.