delivered the opinion of the Court.
The problem in this case arose because Richard Donald Morris, appellant, and the State were in salient agreement on two important issues — that appellant was competent to stand trial, Code, Art. 59, § 7,
1
and that he was not responsible for the criminal conduct of which he was charged because he was insane at the time of the commission of the alleged crimes, Code, Art. 59, § 9 (a). He was charged with rape and, as is customary, the lesser of-, fenses relating thereto, assault with intent to rape and assault and battery, and made, in writing, a general plea of not guilty, Maryland Rule 720, and sufficiently, although not technically correctly, a plea that he was insane at time of the commission of the alleged crime. Code, Art. 59, § 9 (b).
Sweeney v. State,
There was a hearing on the motion and answer in the Circuit Court for Montgomery County. Appellant’s counsel argued that the plea of insanity was an alternative defense. He said, “Now, clearly, the man is not guilty of rape as we stand here today, and we are going on to the issue of consent that there was no lack of consent on the part of the lady that was involved * * * [A] crime was not committed because the lady consented. We have her statement.” He summed it up, “Until such time as the State of Maryland establishes a crime is committed, they cannot take people off the street and charge them with a crime and then confess a plea of not guilty by reason of *22 insanity and place them in a State inslitution without proof they did something wrong. This is not a civil commitment * * The Assistant State’s Attorney said he had not seen a statement by the girl that she consented. He had gone over the case with the complaining witness and her husband, “a part-time preacher,” and “I know I have never heard anything more about consent than the man in the moon.” Then the prosecutor said that even if the girl said she consented “nothing changes the law about what has happened. You see, there is a charge; the man has a mental problem. * * * He is not guilty under any conditions, whether he did it or whether he is insane * * * He never had the mental requisite, the intent to commit the crime alleged.” The court said it would take the case under advisement. It invited counsel to chambers, saying :
“If what he says is true, you have a man here charged with rape and she says herself he didn’t rape her. I don’t know how in the world you got a case. Insanity is something else. We can take care of him if he is insane.”
The record does not disclose what occurred in chambers but on the same day as the hearing the docket entries read that the court ordered that “the State’s confession of not guilty by reason of insanity be and is hereby accepted and entered.” And on the same day the court passed an order that appellant be committed to the Clifton T. Perkins State Hospital and be there confined until he shall have recovered his reason and be discharged by due course of law. 3 Shortly thereafter the court filed an opinion. After setting out the factual posture leading to the State’s confession the court said:
“The ground for the defendant’s opposition to the State’s Confession of the Plea is that in addition to being not guilty by reason of insanity *23 he is not guilty in that he has a defense, i.e., that the victim consented. It being the court’s view that the ingredients of specific criminal intent is absent by virtue of his insanity at the time of the alleged commission of the crime, and that even in the event he went to trial and was acquitted upon the ground of consent such an acquittal for that reason would be tantamount to lack of proof of the element of specific criminal intent. For the foreg-oing reasons the court ordered that the State’s Confession of Not Guilty by Reason of Insanity be accepted.”
Appellant entered a timely appeal from the order accepting the State’s confession of not guilty by reason of insanity and entering the verdict. The State has moved that we dismiss the appeal on the ground that no appeal lies from a verdict of not guilty. We deny the motion. The action of the trial court was no ordinary finding of not guilty on which a defendant walks out of court a free agent. It was a final disposition of the criminal proceeding against appellant and its effect, no matter what the form, was to restrain the liberty of him. Even if it was not within the letter of Code, Art. 5, § 12, we feel it was sufficiently within the meaning of the statute as construed from time to time by judicial opinions to enable us to review it. See Buckner, et al. v. State, 11 Md. App. (1971). We entertain the appeal.
The reasoning underlying the court’s action, as evidenced by its opinion, was that appellant could not have the requisite intent to commit a criminal act if he was insane
4
and “even in the event he went to trial and was acquitted upon the ground of consent such an acquittal for that reason would be tantamount to lack of proof of the element of specific criminal intent.” Of course, if it was established that the woman, whom appellant carnally
*24
knew, being of the age of consent, legally consented to the act of intercourse, there was no rape committed. Force is an essential element of the crime of rape; consent to the act, however reluctantly given, at any time prior to penetration deprives the subsequent intercourse of its criminal character.
Hazel v. State,
We believe, in the circumstances, that appellant was entitled to have the indictment returned against him tried on the pleas he made. See Strawderman v. State, 4 Md. App. 689, 694-698. We hold that there was prejudicial error in the lower court’s acceptance of the State’s confession that appellant was not guilty by reason of insanity, in its directing that such verdict be entered, and in its commitment of appellant to the Clifton T. Perkins State Hospital to remain until released by due course of law. 5 We vacate the order of the lower court of 23 January 1970 that the State’s confession of not guilty by reason of insanity be accepted and entered and its order of the same date committing appellant to the Clifton T. Perkins State Hospital to be “there confined until he shall have recovered his reason and be discharged by due course of law.” We remand the case for trial.
We observe that it is within the province of the State to enter, in open court, a
nolle prosequi
of the indictment against appellant. Rule 711. See
Barrett v. State,
155
*27
Md. 636,
Greathouse v. State,
Each order of 23 January 1970 vacated; case remanded for trial.
Notes
. Unless otherwise stated, references to Code, Art. 59 are as it was under the title “Lunatics and Insane” before its repeal and enactment under the title “Mental Hygiene” by ch. 407, Acts 1970, eifective 1 July 1970.
. In the report of examination it was stated that the feeling of the Staff was that appellant “might best be managed by being retained in the Hospital until the date of his trial” and it was recommended that “should Mr. Morris be found Not Guilty by Reason of Insanity, he should be remanded to our hospital for his continued treatment and rehabilitation.”
. We are informed by appellant’s counsel that appellant has been transferred to Springfield State Hospital.
. What Code, Art. 59, § 9 (a) provides is that one who commits a crime while insane cannot be held responsible for his criminal conduct.
. Our holding here is in nowise a departure from our ruling in Sweeney v. State, supra, applied in Avey v. State, supra, that an accused is not entitled to a bifurcated trial on the separate issues of insanity and guilt of the crime. We expressly reaffirm that rule.
. At one point in the proceedings below when appellant’s counsel suggested he did not commit a crime, the court indicated that if this were so “ [ij nsanity is something else. We can take care of him if he is insane.”