I am unable to agree with the majority's construction of and conclusion with reference to the district *Page 751 court's instructions known in the opinion as Nos. 4 and 5. Those instructions, so far as material, are:
"You are instructed that, before the defendant can be convicted of the crime of assault with intent to commit rape, the State must prove beyond a reasonable doubt the following essentials:
"1. That the defendant made an assault upon Madge Jones, a female child under the age of 16 years.
"2. That such assault was made by him with the intent to haveor attempt to have [the italics are ours] sexual intercourse with her."
There is nothing in the instructions to indicate, as the majority declare, that the judge intended to say that the defendant could be convicted if the assault was "made by him with intent to attempt" (italics are ours) to commit the act. No such language appears in the instructions. What the district court said was that the defendant could be convicted if he made an assault: First, with the intent, or second, with the attempt, to have sexual intercourse with the prosecutrix. If the defendant, then, made the assault with an intent to commit the illegal act, he is guilty. Likewise, he is guilty if he made such assault with the attempt to commit the illegal act. Under the court's instructions, he is guilty if he intended or attempted to commit the act, under the assault. The statute uses the word "intent." Consequently, there is but one proposition to decide, and that is whether intent to commit is covered by the attempt to commit. In other words, does an assault with an intent to commit the act mean the same thing as an assault with an attempt to commit the act? Error does not appear if an attempt to commit the act includes an intent to commit it. Even though attempt and intent, as here used, are not synonymous, yet there need not be a reversal if attempt includes intent, because in such event the defendant in no way would be prejudiced by the instructions: that is to say, if "attempt" signifies more than "intent," there was no harm done the defendant if the word "attempt" includes "intent."
It is my opinion that an attempt includes an intent, under the circumstances. An intent, however, might not include an attempt. A man might intend to commit rape, but never actually attempt to do so. But if he attempted to commit the crime, *Page 752 he necessarily intended to do so; for, if he attempted the act, and was in no way prevented, he would have consummated it. Hence, if he actually attempted, he intended, because without the intent there would never have been the attempt. Attempt includes the intent, plus action. The assault with intent is something less than an assault with an attempt, because in the attempt there must be an effort to accomplish, in addition to the intent to do so. So, there would be no attempt without an intent. Before a man starts to put his thought into execution, there must be a will to prompt the action. Resultantly, the use of the word "attempt" in the instructions included "intent," and therefore in no way prejudiced the defendant. The jury could not have been misled.
This conclusion is borne out by the definition of "attempt" set forth in Webster's New International Dictionary. Furthermore, I am not alone in my opinion in this regard, because this and many other courts have held that an "attempt," used in an indictment or definition of certain crimes, must of necessity include "intent." For convenience, excerpts from the opinions of those courts are here set forth:
"* * * `attempt' is an act tending toward the accomplishment of a purpose which exceeds a mere intent or design, but falls short of the execution of it. * * * It implies an intent formed, and also an endeavor to commit the offense. * * * `An attempt' is any intent to do a particular thing with an act falling short of the thing intended. When we say a man attempted to do a thing, we mean that he intended to do specifically it, and proceeded a certain way in the doing." Flower v. Continental Cas. Co.,140 Iowa 510, on page 512.
See, also, State v. Lewis, 173 Iowa 643.
"The authorities seem to be uniform that, where an act is done with the intent to commit a crime, and tending, but failing, to effect its commission, is an attempt to commit the ultimate crime * * *." Shipp v. State, 81 Tex. Cr. 328, 332 (196 S.W. 840, 843).
"What acts will constitute an `attempt' to commit a crime is often difficult of determination. * * * Generally, there must be an intent to commit a crime, coupled with an overt act apparently *Page 753 adapted to effect the intent, carried beyond mere preparation, but falling short of execution of the ultimate design." Gustinev. State, 86 Fla. 24, 26 (97 So. 207, 208).
"An attempt to commit a crime is generally held to be any overt act done towards its commission with an intent to commit the offense, but because of some interference, the accused is prevented from carrying out the intent which would have resulted in the commission of the crime." State v. Rooney, 118 Kan. 618 (236 P. 826).
"The rule relied upon is stated thus in 8 R.C.L., p. 277, Section 294: `An indictable attempt, therefore, consists of two important elements: First, an intent to commit the crime; and, second, a direct ineffectual act done towards its commission.'"State v. Harvey, 119 Or. 512 (249 P. 172).
"To define the word of the second section, `attempt:' It is an act done with intent to commit a crime." State v. Harwick,133 La. 545 (63 So. 166).
"It is claimed that there is no allegation in the indictment of any intent on the part of the defendant * * *. It is alleged that he did `feloniously and willfully attempt * * *.' Now, an attempt, in its very nature, includes and involves intent."United States v. Sugarman, 245 Fed. 604.
"`Attempt' itself, as used in the information [the one involved in that case], imports: (1) The intent to commit the crime; and (2) a direct, ineffectual act done towards its commission." Statev. Crawford, 21 Ariz. 501 (190 P. 422).
"In 1 Words and Phrases, second series, page 358, it is said: `The word "attempt" is more comprehensive than the word "intent," implying both the purpose and an actual effort to carry that purpose into execution. * * * The only distinction between an "intent" and an "attempt" to do a thing is that the former implies purpose only, while the latter implies both the purpose and an actual effort to carry that purpose into execution; and, since the word "attempt" embraces the full meaning of "intent," with something more, it is not impossible that the courts may hold it to be an admissible substitute in an indictment.'" Cirulv. State, 83 Tex. Cr. 8, 10 (200 S.W. 1088, 1089).
"An attempt to commit a crime is composed of two elements. (1) The intent to commit it; and (2) a direct, ineffectual act *Page 754 done towards its commission." Andrews v. Commonwealth, 135 Va. 451 (115 S.E. 558).
"An attempt to commit a crime is an act done with intent to commit it beyond mere preparation, but falling short of its actual commission." State v. Schwarzbach, 84 N.J. Law 268 (86 A. 423).
For similar pronouncements, see People v. Werblow, 241 N.Y. 55 (148 N.E. 786); State v. Huber, 38 Nev. 253 (148 P. 562);People v. Petros, 25 Cal.App. 236 (143 P. 246); State v.Thompson, 118 Kan. 256 (234 P. 980); Smith v. State,72 Neb. 345 (100 N.W. 806); Miller v. State, 130 Miss. 730 (95 So. 83);State v. Thomason, 23 Okla. Cr. 104 (212 P. 1026).
Thus it appears by the great weight of authority that "attempt" includes "intent;" and where intent is essential for the commission of a crime the use of the word "attempt" in describing the same is sufficient, for the reason that attempt includes intent.
Because of the reasons above suggested, I respectfully dissent from the majority opinion.
MORLING, C.J., and STEVENS and De GRAFF, JJ., join in dissent.