The common ground of these cases is that, at their trials, both defendants attempted to utilize voluntary intoxication as a defense to charges of crimes which Michigan appellate courts previously have held to be general-intent crimes. Both defendants request this Court to expand the category of specific-intent crimes to include the offenses they were convicted of, i.e., first-degree criminal sexual conduct and second-degree murder, in order to make available to them the defense of voluntary intoxication.
Facts
Defendant Lundy was found guilty but mentally ill of three counts of first-degree criminal sexual *635conduct, MCL 750.520b; MSA 28.788(2), and sentenced to three concurrent life terms. The convictions arose from the October 30, 1978, rape of his adult sister. The crime, carried out with the use of a knife as a threatening weapon, involved three penetrations.
At Lundy’s bench trial, the major issue centered on defendant’s mental state at the time of the commission of the crime. His defense was predicated upon expert testimony regarding his mental state as well as evidence that he had been sniffing glue and drinking alcohol immediately prior to the crime. The trial court rejected Lundy’s insanity defense as well as his intoxication defense, ruling as to the latter that first-degree criminal sexual conduct is a general-intent crime.
The Court of Appeals affirmed in a memorandum opinion.
Defendant Langworthy was convicted of second-degree murder, MCL 750.317; MSA 28.549, and was sentenced to 60 to 90 years in prison.
After a bench trial, the trial judge found that on the night of November 5, 1976, defendant, Roy Schipani, and Alan Parker were together indulging in alcohol and drugs in a house in Ypsilanti. Parker left sometime during the early morning hours to purchase cigarettes at a gas station. There he met the decedent, William Wedge, who returned to the house with Parker.
The trial judge further found that Wedge was intoxicated and offensive and that Wedge made certain comments which irritated defendant. Wedge then passed out and the three others dis*636cussed robbing Wedge. Defendant suggested that they "blow him away” and then he turned up the stereo, went to a closet where he got a rifle and shot Wedge in the mouth and in the chest.
The trial judge determined that the defendant was not mentally ill or legally insane at the time of the commission of the crime. He found that defendant had taken at least 400 milligrams of Valium and some codeine and Nembutal and had been drinking Southern Comfort and Coke at the time of the crime. The trial judge concluded:
"However, the court finds that as a result of the drugs and alcohol his judgment and his appreciation of the consequence of his actions was grossly impaired.
"That he committed the act knowingly with malice but 'without a real concept of the consequence of the act.’ That he had a conscious intent to commit the crime but that his judgment and appreciation of the consequence of his act was grossly impaired as the result of the drugs and alcohol.”
The Court of Appeals affirmed in an unpublished opinion per curiam, ruling, inter alia, that second-degree murder is not a specific-intent crime and that, therefore, voluntary intoxication was not a defense.
A. The Voluntary Intoxication Defense
Every jurisdiction in this country recognizes the general principle that voluntary intoxication is not any excuse for crime.1 This is in accord with the common-law rule dating back to the sixteenth *637century which allowed no concession to a defendant because of his intoxication.2 However, by the early nineteenth century, the English courts began to fashion a doctrine to mitigate the harshness and rigidity of the traditional rule.3 The doctrine, which has come to be known as the exculpatory rule, was stated by Judge Stephen as follows:
"[Although you cannot take drunkenness as any excuse for crime, yet when the crime is such that the intention of the party committing it is one of its constituent elements, you may look at the fact that a man was in drink in considering whether he formed the intention necessary to constitute the crime.”4
It is said that the theory behind this exculpatory doctrine is that it does not hold that drunkenness will excuse crime; rather, it inquires whether the very crime which the law defines has in fact been committed.5 Almost every state, by statute or by common law, has adopted the exculpatory rule,6 and Michigan is no exception.7_
*638"While it is true that drunkenness cannot excuse crime, it is equally true that when a certain intent is a necessary element in a crime, the crime cannot have been committed when the intent did not exist.” People v Walker, 38 Mich 156, 158 (1878). See, also, People v Crittle, 390 Mich 367; 212 NW2d 196 (1973).
The applicability of the exculpatory rule rests entirely on the determination whether the offense involved is categorized as a general- or specific-intent crime.
"It is important in this decision to emphasize that intoxication may only negative the existence of specific intent. Examination of the cases reveals that where the rule was applied, it was done so in cases where the crime charged also involved a specific intent.” People v Guillett, 342 Mich 1, 6; 69 NW2d 140 (1955). See, also, Roberts v People, 19 Mich 401 (1870).
Thus, if a crime is determined to require only a general intent, the defendant’s voluntary intoxication during the commission of an offense may not be asserted as a defense to the existence of the mental element of that crime.
The general intent-specific intent dichotomy arose as a compromise between the perceived need to afford some relief to the intoxicated offender whose moral culpability was considered less than that of a sober person who committed the same offense and the view that a person who voluntarily becomes drunk and commits a crime should not escape the consequences.8 Although the rule seems *639logical on the surface, it has proven to be far from logical in application. While specific intent can easily be defined as "a particular criminal intent beyond the act done”* **9 (whereas general intent is the intent simply to do the physical act), the ease of stating the definition belies the difficulty of applying it in practice. In order to appreciate the problem, one need only note the divergence of opinion among the jurisdictions as to which crimes require a specific intent and, therefore, to which crimes the exculpatory rule applies.10
It has been noted that the law with respect to voluntary intoxication and criminal responsibility has shown little tendency to change or develop despite advances socially and medically in this area;11 and, we might add, despite strong criticism from treatise writers,12 law review commentators,13 case law,14 and the drafters of the Model Penal *640Code.15 My Brother Levin summarized the major criticisms of the exculpatory rule while on the Court of Appeals:
"It has also been maintained that the availability of the intoxication defense should not depend on whether a court chooses to characterize an element of the crime charged as separate from the element of general intent. It has been observed that neither common experience nor psychology knows of any such phenomenon as 'general intent’ distinguishable from 'specific intent.’ It does seem incongruous to make the admissibility of mitigating evidence depend on whether the statutory definition of a crime includes a separately stated intent, and other methods of defining specific intent are highly manipulable.
"The clumsiness of the exculpatory device has been criticized. A defendant who is charged with a specific intent crime may go free if he can prove he was intoxicated; this result contrasts sharply with the absolute denial of relief to the intoxicated offender charged with a crime of general intent.
"If the function of the general/specific intent distinction is to eliminate the defense as to lesser included offenses, e.g., assault and battery, but to retain it for the more serious offenses, e.g., armed robbery, and in that manner mitigate the general rule that intoxication is not a defense, then manifestly this should be done on a consistent basis. The right to interpose this defense should depend on something more substantial than a technical distinction that was seized upon by a judge *641130 years ago and adopted by other judges to reach results thought sound in the cases then before them. People v Kelley, 21 Mich App 612, 628-630; 176 NW2d 435 (1970).
While we recognize the illogic and incongruity of the general intent-specific intent dichotomy, the remedy is not clear-cut. One solution, of course, would be to join the ranks of those few states which do not allow the voluntary intoxication defense even where a specific intent is required. We agree, however, with Professors LaFave and Scott that this view is clearly wrong.16 It would require us to ignore basic concepts of criminal culpability as well as modern scientific views on alcoholism.
The alternative would be to allow the intoxication defense to be asserted against any charge of crime which traditionally has required general or specific intent. Although this Court has the power to so modify the common-law rule,17 we believe that it would be imprudent to take that step at this time. While abolishing the general intent-specific intent distinction may rid the courts of an illogical rule, it would do nothing to help solve the problem of the intoxicated offender, both from the standpoint of the offender and from the standpoint of society which suffers from the acts of the intoxicated offender. Moreover, because the parties before us did not specifically address the issue of abolishing the exculpatory rule, we do not have the benefit of an adversarial presentation of the pros and cons of such an action. This Court should be hesitant to abolish an established common-law rule without a fully developed presentation of both sides of the question._
*642The problem of alcoholism and crime is complex, requiring studies and policy considerations beyond the ability of any judicial body. Various solutions which have been proposed would require legislative action.18 We urge the Legislature to consider the intoxicated-offender problem and to modernize Michigan law on this subject. Until the Legislature takes action or until we are persuaded to modify the common-law rule in an appropriate case in the future, we shall continue to struggle with applying the rule case by case.
B. Is First-Degree Criminal Sexual Conduct a Specific-Intent Crime?
Defendant Lundy asks this Court to find that first-degree criminal sexual conduct includes the element of specific intent. His only argument is that felonious assault is a specific-intent crime and, therefore, in those criminal sexual conduct situations where felonious assault is a lesser included offense logic dictates that specific intent is also an element of the criminal sexual conduct. Because Lundy possessed a weapon while committing the criminal sexual conduct herein, he argues that specific intent was an element of proof which the intoxication defense should have been allowed to negative._
*643This case requires us to decide whether first-degree criminal sexual conduct is a general- or specific-intent crime. We have previously held, under the predecessor to the criminal sexual conduct statute,19 that rape is not a specific-intent crime. People v Phillips, 385 Mich 30; 187 NW2d 211 (1971).20 This comports with the overwhelming weight of authority which holds that rape is a general-intent crime.21
An examination of the statute convinces us that the Legislature did not intend to include specific intent as an element of first-degree criminal sexual conduct. Neither the first-degree criminal sexual conduct statute nor the corresponding statutory definition of "sexual penetration” contains any language whatsoever regarding intent.22 The fact that the Legislature must have been cognizant, in enacting the first-degree criminal sexual conduct provision, of the established rule that rape does not require specific intent, combined with the absence of any provision regarding intent, considerably weakens defendant’s argument that his *644crime is a specific-intent offense. If the Legislature wanted to add specific intent as an element, knowing that the predecessor statute had been consistently construed as a general-intent crime, it would have specifically done so. The fact that it did not leads us to conclude that the Legislature intended to maintain the general rule that "no intent is requisite other than that evidenced by the doing of the acts constituting the offense”, i.e., general intent.23
Moreover, one of the purposes of the new act was to strengthen the laws against sexual violence by removing certain evidentiary obstacles to the prosecution of sexual assault.24 This further strengthens our conclusion that it is unlikely that a new element of proof would be added without specific mention.
Finally, we reject defendant’s argument that if an applicable lesser included offense of a criminal sexual conduct offense requires specific intent, it necessarily follows that the greater offense also requires proof of specific intent. Other courts presented with this argument have rejected it,25 and we reject it also. We concur with the United States Court of Appeals, writing in United States v Thornton, 162 US App DC 207, 210-211; 498 F2d 749 (1974):
"Actually, as has been stated, '[A]ll attempts require specific intent’; so if it were to follow appellant’s logic of *645superimposing the specific intent of an included crime upon the greater offense, a specific intent would be required for practically every crime. This could not be the law. The differing requirements for lesser offenses result principally from the differing nature of the crimes and from their historical and legislative definitions. The requirement of a specific intent for lesser crimes exists because of a desire to protect the individual against conviction on slight evidence. The same protection is unnecessary where substantial overt acts are committed and fully consummated offenses are provable. There is no rule of law that crimes which carry greater punishment require the proof of greater, or even the same, criminal intent as included or related crimes which carry lesser punishment. Each crime has its own elements and peculiarities and as we said in McGuinn v United States, 89 US App DC 197, 199; 191 F2d 477, 479 (1951), 'Rape is not a crime which requires a specific intent.’ This is in accord with the great weight of authority which holds the crime of rape requires no intent other than that indicated by the commission of the acts constituting the offense.”
Accordingly, we conclude that first-degree criminal sexual conduct is a general-intent crime for which the defense of voluntary intoxication is not available.26
C. Is Second-Degree Murder a General- or Specific-Intent Crime?
Defendant Langworthy petitions this Court to extend to second-degree murder cases the rule in People v Garcia, 398 Mich 250; 247 NW2d 547 (1976) , that non-felony first-degree murder is a *646specific-intent crime. Defendant urges this Court to adopt the California rule of diminished capacity.
In support of his position, defendant has cited for our consideration cases from other jurisdictions which allow murder to be reduced to manslaughter through the successful assertion of the voluntary intoxication defense. We. have reviewed these cases and others, and we have concluded that they are not applicable to the situation existing in Michigan.27 An examination of the jurisdictions which defendant relies upon demonstrates why the cases are clearly distinguishable.
Unlike that of Michigan, the statutory schemes of some states do not divide murder into degrees. To further complicate comparison, these states may require, as an element of their single crime of murder, premeditation or some other specific mental element (such as intent to kill) not required for second-degree murder in Michigan.28 These states do no more than Michigan already does with *647respect to first-degree murder, i.e., allow intoxication to negate the element of premeditation (or intent to kill) and reduce the degree of the offense. The difference is that in these states negation of premeditation, for example, means that murder has not been proven at all, whereas in Michigan it only means that first-degree murder has not been proven. This difference is due to the legislative classification of homicide, which we have no control over and, consequently, which makes these cases distinguishable.
Other states allow charges of second-degree murder to be reduced to manslaughter, but this result is mandated by the particular statutory definition of the required mens rea. In Colorado, for instance, under a prior statute, second-degree murder was not a specific-intent crime, and voluntary intoxication was not a defense. Under the revised statute, the inclusion of the term "intentionally” caused the Colorado Supreme Court to redefine second-degree murder as a specific-intent crime.29 Michigan has no statutory mens rea requirement for second-degree murder which would mandate similar treatment.
Some of the other states which defendant refers us to have case-law definitions of malice which require premeditation or intent to kill as necessary requirements.30 Michigan does not have either of these elements as a prerequisite to second-degree murder.31_
*648The remaining jurisdiction which defendant cites is California. We are referred to People v Conley, 64 Cal 2d 310; 49 Cal Rptr 815; 411 P2d 911 (1966), and we are asked to adopt the diminished-capacity rule of that case. Under the diminished-capacity doctrine, inter alia, voluntary intoxication may negate the malice requirement for second-degree murder and reduce a homicide to manslaughter. However, recent legislation has seriously undermined the controversial diminished-capacity doctrine in California. California Penal Code § 28(a) abolished the independent defense of diminished capacity established by cases such as Conley, and amendments to California Penal Code §§ 188 and 189 have overruled expansive definitions of malice used in Conley and other California cases.32
Thus, we find that all of the jurisdictions which defendant relies upon as persuasive authority for his position are not applicable to our circumstances in Michigan. In any event, despite the existence of cases which allow a proper voluntary intoxication defense to reduce murder or second-degree murder to manslaughter, the majority rule remains as follows:
” Tt is now generally held that intoxication may be *649considered where murder is divided into degrees, and in many states, may have the effect of reducing homicide from murder in the first degree to murder in the second degree. In fact, in most states the only consideration given to the fact of drunkenness or intoxication at the time of the commission of the homicide is to enable the court and jury to determine whether the prisoner may be guilty of murder in the second degree, rather than of murder in the first degree. The rule followed by most courts is that intoxication will not reduce a homicide from murder to manslaughter. 40 Am Jur 2d, Homicide, § 129, pp 420-421. See also 40 CJS, Homicide, § 5, p 831. ("Voluntary intoxication does not of itself negative the malice required to constitute murder in the second degree and thereby reduce murder in the second degree to voluntary manslaughter.”); Anno: 12 ALR 861, 888 ("the great weight of authority is that intoxication will not reduce a homicide from murder to manslaughter”), 79 ALR 897, 904’.”33
Defendant also contends that the distinction between first- and second-degree murder is not so great as to require the difference in treatment vis-á-vis the intoxication defense. He argues that because "the line drawn is a fine one”, the emphasis should not be placed on the difference between first- and second-degree murder; rather, the emphasis should be placed on the difference between murder and manslaughter, the former distinction only being necessary for punishment purposes. At oral argument, defense counsel stressed that willfulness is the common thread of first- and second-degree murder and that the Criminal Jury Instructions use the term willfulness in conjunction with both crimes. Thus, defense counsel argued, *650voluntary intoxication should be allowed to negate the willfulness element of both degrees of murder.
Contrary to defense counsel’s argument, our reading of the relevant jury instructions indicates no requirement of willfulness for second-degree murder. The requirement of a "wilful” killing is contained only in the language of the first-degree murder statute. Furthermore, while the distinction between first- and second-degree murder, on the facts of a particular case, may at times appear to be a "fine line”, it nevertheless represents a policy decision of our Legislature to punish more severely certain types of murder which it considered to be more serious. We do not question the wisdom of that policy decision.
We find that there is more than a sufficient basis to distinguish between the degrees of murder to require that specific intent be demonstrated for first-degree murder only. In People v Garcia, supra, we held that "wilful” killing means the "intent to accomplish the result of death”. Moreover, specific intent to kill is a necessary constituent of the elements of premeditation and deliberation.34 It would be difficult, if not impossible, to premeditate and deliberate a killing without at the same time possessing the specific intent to kill. This logic, however, does not apply to second-degree murder.
The mens rea requirement for second-degree murder is supplied by the element of malice. While the intent to kill satisfies the malice requirement, it is not a necessary element of second-degree murder. An intent to inflict great bodily harm or a wanton and willful disregard of the likelihood that the natural tendency of a person’s behavior is to cause death or great bodily harm *651may also satisfy the malice requirement. People v Aaron, 409 Mich 672; 299 NW2d 304 (1980).
With respect to the element of malice encompassing wanton and willful disregard, we concur with the majority rule that voluntary intoxication is not a defense. We agree with the analysis of Professors LaFave and Scott:
"The person who unconsciously creates risk because he is voluntarily drunk is perhaps morally worse than one who does so because he is sober but mentally deficient. At all events, the cases generally hold that drunkenness does not negative a depraved heart by blotting out consciousness of risk, and the Model Penal Code, which generally requires awareness of the risk for depraved-heart murder (and for recklessness manslaughter), so provides.”35
Because second-degree murder does not require intent to kill, but rather, only wanton and willful disregard malice need be shown; and, because we have concluded that voluntary intoxication may not negate this latter category of malice, we believe that voluntary intoxication should not be a defense to a charge of second-degree murder. We are aware that there may be second-degree murder cases which involve only the intent to kill or the intent to do great bodily harm types of malice. We are further aware that these two categories of malice sound suspiciously akin to the traditional language of specific intent. However, we decline to extend the defense of voluntary intoxication to these cases on the grounds of public policy._
*652In People v Bourne, 385 Mich 170, 172; 188 NW2d 573 (1971), this Court held that a killing may be only manslaughter even though there is an intent to kill. Quoting from Justice Campbell in People v Scott, 6 Mich 287, 295 (1859), we noted that:
"Voluntary manslaughter often involves a direct intent to kill, but the law reduces the grade of the offense because, looking at the frailty of human nature, it considers great provocations sufficient to excite the passions beyond the control of reason.”
Hence, because of policy considerations, the law allows provocation to negate the element of malice and reduce the offense from murder to manslaughter. We are not aware of any statutory or common-law rule in Michigan which holds similarly when voluntary intoxication is a factor. Nor do we believe it wise to extend the policy exception to include voluntary intoxication as a factor which may reduce to manslaughter what would otherwise be a murder.
In short, we agree with the majority of jurisdictions which hold:
"As between murder in the first degree and murder in the second degree, voluntary drunkenness may be a legitimate subject of inquiry, but as between murder in the second degree and manslaughter it is never material and cannot be considered.”36
We hold that second-degree murder is not a specific-intent crime for which the defense of voluntary intoxication may be asserted.
*653D. Other Issues
We have carefully reviewed the remaining allegations of error of both defendants and have been unable to find any error which merits reversal.
E. Conclusion
Although we consider the general intent-specific intent dichotomy an unsatisfactory concept in the law, we believe it is more appropriate for the Legislature to fashion reform in this area, and we strongly recommend such reform. For the present, we hold that the defense of voluntary intoxication is not available to charges of the crimes of first-degree criminal sexual conduct and second-degree murder. Or, to use the traditional rubric, we hold that the above offenses are crimes of general intent. The Court of Appeals is affirmed in both cases.
Williams, Coleman, and Ryan, JJ., concurred with Fitzgerald, C.J. Coleman, J.I have signed my colleague’s opinion believing that his reasoning and conclusions are correct regarding the applicability of the voluntary intoxication defense in these cases. I write separately to note that I do not join in his recommendations to the Legislature to address the general- specific-intent analysis employed in these cases. I am not persuaded that the distinction is either illogical or unworkable.
Anno: Modern status of the rules as to voluntary intoxication as defense to criminal charge, 8 ALR3d 1236; 21 Am Jur 2d, Criminal Law, § 155, p 295; 22 CJS, Criminal Law, § 66, p 214; Perkins, Criminal Law (2d ed), p 898; 2 Torcia, Wharton’s Criminal Law (14th ed), § 108, p 49; People v Walker, 38 Mich 156, 158 (1878); People v Guillett, 342 Mich 1, 5; 69 NW2d 140 (1955); Bishop v United States, 71 US App DC 132, 136; 107 F2d 297 (1939).
Hall, Criminal Law (2d ed), p 529; Clark & Marshall, Crimes (7th ed), § 6.09, p 433; Singh, History of the Defense of Drunkenness in English Criminal Law, 49 L Qtr Rev 528 (1933).
In fact, Blackstone and Coke attempted to make drunkenness an aggravation of the offense. Hall, supra, p 530; Singh, supra, p 531; Miller, Criminal Law, § 42, p 137.
The doctrine was first suggested by Justice Holroyd in 1819 when he stated that voluntary drunkenness should be considered in determining the existence of premeditation. Rex v Grindley, quoted in Rex v Carroll, 7 C & P 145; 173 Eng Rep 64 (1835). In Regina v Cruse, 8 C & P 541; 173 Eng Rep 610 (1838), in a case of assault with intent to murder, the jury was instructed that gross intoxication could disprove the intent element for the aggravated offense. Hall, fn 2 supra, pp 531-532; People v Hood, 1 Cal 3d 444, 456, fn 5; 82 Cal Rptr 618; 462 P2d 370 (1969); Singh, fn 2 supra, pp 537-539.
Regina v Doherty, 16 Cox Crim C 306, 308 (N P 1887).
State v Rumble, 81 Kan 16; 105 P 1 (1909); Commonwealth v Graves, 461 Pa 118; 334 A2d 661 (1975); 21 Am Jur 2d, Criminal Law, § 155, p 299.
See, e.g., 8 ALR3d 1236, fn 1 supra. Vermont and Missouri are the exceptions.
For a history of the development of the exculpatory rule in *638Michigan, see People v Kelley, 21 Mich App 612; 176 NW2d 435 (1970); 1 Mich Criminal Jury Instructions (Ann Arbor: Institute of Continuing Legal Education), State of Mind Commentary, pp 6-18 — 6-20.
Hall, fn 2 supra, pp 537, 544; People v Hood, fn 3 supra, p 455.
It is reported that Justice Coleridge first used the term "specific intention” in Regina v Monkhouse, 4 Cox Crim C 55 (1849). Yet, "[h]e *639did not mean to weave any particular magic with these words.” Beck & Parker, The Intoxicated Offender — A Problem of Responsibility, 44 Can B Rev 563, 578 (1966). See, also, Singh, fn 2 supra, pp 539-540.
People v Depew, 215 Mich 317, 320; 183 NW 750 (1921). See, also, Roberts v People, 19 Mich 401, 414 (1870); LaFave & Scott, Criminal Law, § 28, p 202:
"[T]he most common usage of 'specific intent’ is to designate a special mental element which is required above and beyond any mental state required with respect to the actus reus of the crime.”
5 Am Jur Proof of Facts 2d, pp 194-196. See, e.g., 8 ALR3d, fn 1 supra, pp 1246-1257.
21 Am Jur 2d, fn 1 supra, p 295; 8 ALR3d, fn 1 supra, p 1239.
See, e.g., Hall, fn 2 supra; LaFave & Scott, fn 9 supra, p 344:
"[I]t is better * * * to stay away from those misleading concepts of general intent and specific intent.”
See, e.g., Deddens, Volitional Fault and the Intoxicated Criminal Offender, 36 U Cinn L Rev 258 (1967); Hall, Intoxication and Criminal Responsibility, 57 Harv L Rev 1045 (1944); Note, Intoxication as a Criminal Defense, 55 Colum L Rev 1210 (1955); Comment, Criminal Law — Intoxication as a Defense, 55 Can B Rev 691 (1977); Beck & Parker, fn 8 supra.
People v Hood, fn 3 supra; People v Kelley, fn 7 supra. Australia’s High Court recently rejected the general intent — specific intent rule and held that the prosecutor must prove the mental element for each. The High Court said that the distinction between general and *640specific intent was unsatisfactory in that it is difficult to define, it is not based on any factual difference between various states of mind, and it does not always work rationally in that it is not always the more serious offense which requires proof of specific intent. Queen v O’Connor, 29 Austl L Rpts 449 (1980), as reported in Orchard, Criminal Responsibility and Intoxication — The Australian Rejection of Majewski, New Zealand L J 532 (1980).
The Model Penal Code would abolish the use of the general intent-specific intent distinction. "[W]e can see no virtue in preserving the concept of 'general intent,’ which has been an abiding source of ambiguity and of confusion in the penal law.” Model Penal Code (Tentative Draft No 4, 1956), §2.02, Comment 5, p 128. See, also, Model Penal Code (Tentative Draft No 9, 1958), § 2.08.
LaFave & Scott, fn 9 supra, p 344.
People v Aaron, 409 Mich 672, 723, fn 112; 299 NW2d 304 (1980).
Professor Hall has proposed that a distinction be made between inexperienced inebriates, "those who had no previous experience with intoxication that rendered them dangerous”, and experienced inebriates. Hall, fn 2 supra, p 554.
Another commentator suggests for consideration the 1960 German Draft Penal Code which adopts the middle ground of holding the intoxicated offender to a diminished responsibility. Deddens, fn 13 supra, p 287.
Justice Levin, in People v Kelley, supra, 21 Mich App 628, fn 23, recommends legislation defining a new crime of committing crimes under the influence of drugs or liquor. This new crime could be graded, "depending on the extent and the gravity of antisocial act(s) previously committed in a comatose condition, and on the antisocial conduct immediately involved”.
MCL 750.520; MSA 28.788 (since repealed, 1974 PA 266).
See, also, People v Maglich, 234 Mich 88; 207 NW 865 (1926), where this Court approved the trial court’s instruction denying intoxication as a defense to a charge of rape.
United States v Thornton, 162 US App DC 207; 498 F2d 749 (1974); People v Brumfield, 72 Ill App 3d 107; 390 NE2d 589 (1979); State v Geer, 13 Wash App 71; 533 P2d 389 (1975); Frank v State, 6 Md App 332; 251 A2d 249 (1969); Henry v United States, 432 F2d 114 (CA 9, 1970); United States v Lavallie, 666 F2d 1217 (CA 8, 1981); Isaacs v Commonwealth, 553 SW2d 843 (Ky, 1977); Askew v State, 118 So 2d 219 (Fla, 1960); State v Ramirez, 84 NM 166; 500 F2d 451 (1972); State v Pilcher, 158 NW2d 631 (Iowa, 1968).
We have been unable to find any case which has specifically held that intoxication is a defense to a charge of rape. It appears that we are not alone. Frank v State, 6 Md App 332, 335; 251 A2d 249 (1969).
When a statute sets forth a crime and its punishment without designating its elements, courts must look to the common law for guidance. See, e.g., People v Aaron, fn 17 supra. However, for the reasons outlined above, the common-law definition does not aid defendant’s position.
75 CJS, Rape, § 9, p 471. See, also, Walden v State, 178 Tenn 71, 77; 156 SW2d 385 (1941); United States v Lavallie, fn 21 supra; Coots v Commonwealth, 418 SW2d 752 (Ky App, 1967); State v Smith, 3 Wash 2d 543; 101 P2d 298 (1940); Isaacs v Commonwealth, fn 21 supra; Askew v State, fn 21 supra.
See People v Willie Johnson, 406 Mich 320, 330; 279 NW2d 534 (1979).
Askew v State, fn 21 supra, pp 221-222; United States v Thornton, fn 21 supra.
We note that the Court of Appeals has likewise concluded that first-degree criminal sexual conduct and also second-degree criminal sexual conduct are general intent crimes. People v Bell, 101 Mich App 779; 300 NW2d 691 (1980); People v Brewer, 101 Mich App 194; 300 NW2d 491 (1980); People v Fisher, 77 Mich App 6; 257 NW2d 250 (1977).
The difficulty with reliance on case law from other jurisdictions in this area of law is that we are dealing with three concepts, each of which is necessary to the decision of the question involved here, and each of which is unique to the jurisdiction under consideration. Those three concepts are the definition of second-degree murder, the definition of malice, and the particular voluntary intoxication rule involved, whether statutory or common-law. The lack of identity of the three concepts makes comparison difficult. The divergence of result depending on the rule followed by a particular jurisdiction is noted in 40 Am Jur 2d, Homicide, § 129, p 421.
Choate v State, 19 Okla Cr 169; 197 P 1060 (1921); Oxendine v State, 335 P2d 940 (Okla, 1958); People v Jacobs, 44 Ill App 3d 290; 357 NE2d 821 (1976).
Defendant Langworthy cites Cagle v State, 211 Ala 346; 100 So 318 (1924), as an example of a state which allows voluntary intoxication to reduce murder to manslaughter. However, Alabama has changed its murder statute since Cagle and now divides murder into degrees. As a result, Alabama now holds that second-degree murder is not a specific intent crime and voluntary intoxication is not a defense. Rogers v State, 49 Ala App 78; 268 So 2d 859 (1972). This provides a good example of why it is difficult to compare cases involving murder statutes with degrees with cases involving murder statutes without degrees.
People v Romero, 192 Colo 106; 559 P2d 1101 (1976). See, also, Lorig v State, 58 AD2d 734; 396 NYS2d 122 (1977); People v Davis, 18 AD2d 644; 235 NYS2d 282 (1962). The statutory requirement of "purposeful” is another example of these types of cases. See, e.g., State v Rumble, 81 Kan 16; 105 P 1 (1909) (former statute); State v Fox, 68 Ohio St 2d 53; 428 NE2d 410 (1981).
See, e.g., King v State, 90 Ala 612; 8 So 856 (1891).
As discussed below, in Michigan the intent to kill will satisfy the malice requirement, but it is not required.
"The state Legislature previously had defined malice aforethought as including only the specific states of mind required to render an unlawful killing a murder — e.g., intent (in the absence of the heat of passion upon legally adequate provocation) or the conscious creation and disregard of a substantial and unjustifiable risk of death (i.e., 'abandoned and malignant-heart’ killings). If these specific mental states were proven, malice also was proven. As a technical matter, malice had no independent meaning. In [People v Conley, 64 Cal 2d 310; 49 Cal Rptr 815; 411 P2d 911 (1966)] * * * however, the Supreme Court announced that malice aforethought also required proof that the defendant possessed the ability to comprehend and be aware of his duty to act within the law. This was a novel addition to the elements of murder that previously was unknown in California.” Morse & Cohen, Diminishing Diminished Capacity in California, 2 Cal Lawyer 24, 25 (1982).
State v Hall, 214 NW2d 205, 208-209 (Iowa, 1974). See, also, LaFave & Scott, fn 9 supra, pp 345, 586; Model Penal Code (Tentative Draft No 9, 1958), § 2.08, p 5, Comment 2; 8 ALR3d, fn 1 supra; Hall, fn 2 supra, p 534; State v Bunn, 283 NC 444; 196 SE2d 777 (1973).
State v Bunn, p 458.
LaFave & Scott, fn 9 supra, p 545. See, also, Perkins, fn 1 supra, p 900; Torcia, fn 1 supra, p 63; Rogers v State, 196 Tenn 263; 265 SW2d 559 (1954); Jones v State, 70 Wis 2d 41; 233 NW2d 430 (1975); Commonwealth v Cambric, 475 Pa 454; 380 A2d 1224 (1977); People v LeGrand, 61 AD2d 815; 402 NYS2d 209 (1978); NY Penal Law § 15.05; ND Cent Code § 12.1-04-02.
Johnson v Commonwealth, 135 Va 524, 529; 115 SE 673 (1923).