(specially concurring). I concur in tbe reversal of the judgment in this cause, but in tbe opinion of the *1052writer the reversal should be predicated on further and additional grounds as noted in appellant’s assignment of error. The burden of appellant’s contentions has to do with certain instructions given by the trial court and the sufficiency of the evidence to sustain the verdict.
The prosecutrix was slightly under the age of 15 years. Under our statute she could not consent to an unlawful assault nor could she consent to the consummated act or to any essential criminal part of it. On this proposition we are all agreed. No issue was submitted to the jury for determination except the guilt or innocence of the defendant as to the charge in the indictment, to wit: assault with intent to commit rape. This was a correct instruction, if the evidence warranted a submission of the case to the jury. State v. Sherman, 106 Iowa 684; State v. Johnson 133 Iowa 38; State v. Herrington, 147 Iowa 636.
In one instruction it is said that the act of the defendant in laying hands upon the prosecuting witness, “in any manner whatever constitutes an assault or an assault and battery within the meaning of the law of this state, so far as the charge of assault in this case is concerned,” and if the defendant did so with intent to have sexual intercourse with her he would be guilty of the crime of assault with intent to commit rape.
Is this statement of the law to the jury correct? -It is not sufficient to construe instructions as mere abstract propositions of law. They must be viewed with reference to the facts and to the issues in the case, and only as'thus limited or explained has the pronouncement of law in opinion any value. Instructions must be written and read in the light of the evidence in the case. In considering the complaint lodged against the foregoing instruction it .is necessary that the case is predicated on correct legal definition.
Both nonconsent and force are essential ingredients in rape of a woman over the age of consent. Mere carnal knowledge of a girl under the age of consent is rape. It may be with or without her consent and with or without the use of force, and if an indictment alleges force in such a case the allegation is sur-plusage.
The word “female,” as used in Code Section 4769 making an assault upon a female with intent to commit rape a crime, *1053includes all females of tbe human species. Furthermore the word “assault” means an unlawful assault. It is not- subject to classification. Therefore to sustain a charge of assault with intent to commit rape the testimony must show beyond a reasonable doubt (1) that the act or acts of the accused constitute an assault within the commonly accepted legal meaning of the word or (2) that the act or acts of the accused, if done with the consent of the female, were acts to which she was, under the law, incapable of giving her consent.
"What is an assault? It is an unlawful attempt to commit physical violence upon the person of another with intent to injure. It necessarily includes an attempt. It implies unlawful physical force partly or fully put in motion creating reasonable apprehension of an immediate physical injury to a human being. The word has a well defined meaning in the common law and it has the same meaning in our penal code. There must be an unlawful attempt or offer to apply force to another with intent to do physical injury, and the present means to give it effect. State v. Lewis, 173 Iowa 643 with cases cited; State v. Jerome, 82 Iowa 749.
The assault, being an ingredient of the offense charged, must be unlawful and at the threshold of this case we are confronted with-the question whether the defendant under the evidence did make an unlawful assault upon the person of the prosecuting witness. Could she lawfully consent to the act or acts of the defendant as disclosed by the record?
To what point or state of the proceeding can she give consent to acts on the part of the accused without making him guilty of an unlawful assault? It must be conceded that the instant defendant desired intercourse with the prosecutrix and in the light of their past associations extending over a considerable portion of time it may reasonably be supposed that he expected his request would find fruition, but the evidence shows he was simply soliciting to secure her consent. He attempted nothing toward the act of copulation. Solicitation by mere words with the expectation of consent does not amount to assault with intent to commit rape on a girl under 15 years of age.
In Cromeans v. State, 59 Tex. Cr. 611 (129 S. W. 1129) it *1054is said: ‘ ‘ Some approach, at least, towards preparation for the ultimate act, something showing with reasonable certainty that intercourse is the immediate design to be now effected as the outcome of an act now begun. However reprehensible and iin-moral the solicitation of the chastity of a young girl may be, there is yet no statute making it an offense, and when the facts, whether consisting in words alone or in words joined together with acts, go no further than solicitation, or no further than the obtaining of consent, the offense is not made out.”
We must distinguish between an actual unlawful attempt to consummate the act and mere preliminary acts to which the prosecutrix could lawfully consent.
We are not dealing with a code of ethics but with legislative enactment and legal definition. No normally moral person can condone the reprehensible and despicable conduct of this defendant. The legalist can join with the moralist and say that the snake in the grass or the reptile in the slimy pool are not .more to be loathed than the human vulture who would take the most priceless gem from the diadem of womanly virtues. Conduct, however immoral, may be legally unobjectionable. Guilt in crime is made dependent upon definition and proof. It is not inferred or presumed, nor is it gauged by any standard of morals although the law finds its basis in moral principles. Acts may shock the moral sense but they are not necessarily prohibited in a criminal or legal sense. Johnson v. State, 27 Neb. 687 (43 N. W. 425); Smith v. Commonwealth 54 Pa. St. 209.
In the defining of crime the sovereign state does not create justice in an ethical sense, although its power to do so is unlimited. A tort is a tort in a legal sense only because the law has made it so. United States v. Thompson, 257 U. S. — (42 Sup. Ct. Rep. 159, 161). No act is a crime in this state unless made punishable by laAV. State v, Banoch, 193 Iowa 851. A man’s evil inclinations or intentions, however reprehensible they may be, are not in the catalogue of public offenses. The mere intention to commit a crime or to do a wrong is not an offense. State v. Thompson, 133 Iowa 741; State v. Kendall, 73 Iowa 255. "Surely the presumption of innocence should prevail until something more tangible than proof of the mere inclination to sin and the chance to commit it is forthcoming.” State v. Thomp*1055son, supra. Persuasion or inducement or mere words or any act to wbicb the person may lawfully consent is not an assault, and this applies where the man is expecting and encouraging sexual intercourse with a woman. Rahke v. State, 168 Ind. 615 (81 N. E. 584); State v. Riseling, 186 Mo. 521; People v. Dowell, 136 Mich, 306 (99 N. W. 23).
Mere solicitation of intercourse does not render one guilty of assault with intent to rape if no act or effort is made to carry out the intent of the solicitor. State v. Sanders, 92 S. C. 427 (75 S. E. 702); Douglass v. State, 105 Ark. 218 (150 S. W. 860); State v. Butler, 8 Wash. 194; Addison v. People, 193 Ill. 405 (62 N. E. 235); 33 Cyc. 1434; 22 Ruling Case Law 1231.
Some unlawful act overt in its character, which has an immediate relation to and preparation for or the bringing about of a condition under which intercourse can be accomplished, with intent then and there to have intercourse, must be established beyond a reasonable doubt to predicate a verdict of guilty upon a charge of assault to rape. In order that the principle stated may find application in this case in the light of the instruction given let us examine the evidence assuming the testimony of the prosecutrix to be true.
Respecting her relations with the defendant at the time charged in the indictment she said the defendant “put his arms around me first.” This was with her -consent and she could lawfully consent. She voluntarily put her arms around him. He kissed her and she kissed him. It was her legal privilege to permit this manifestation of love on his part and to reciprocate on her part. “We were lying down; Mr. Roby was lying rather on his side; I was lying on my side; we were very close to each other; and our faces were together.”
The prostrate position of these parties was voluntary on the part of each. He did not request or force her to take this position and on various occasions extending over a period of several months they had been under like circumstances at the same place. She had voluntarily gone to this particular spot on this day. They had frequently made love to each other before this date. This was with her consent and it was a lawful consent. While in the position described she testified: “He put his hand under my bloomers; he put his hand on my naked *1056body at that time,” just where the evidence does not disclose. It was a lewd act but not criminal under our statute. She consented thereto and had the lawful right to consent. She was past 13 years of age. See Section 4938-a, Supplement, 1913. Was anything more done ? No, except that he -said to her, ‘ ‘ Can I have intercourse? I told him no. He asked me if I would promise him I would not let anybody else do anything bad. He told me that it was wrong to do anything of that kind, that I must not let anybody do that. I don’t think we stayed there 20 minutes after that. ’ ’ She testified that ‘ ‘ He did nothing more. ’ ’ This event happened July 17, 1919 about the middle of the afternoon in a clump of bushes a short distance east from the girl’s home in Truro, Iowa.
Is this evidence sufficient to warrant a conviction? No. Was the instruction of the court in the- light of this evidence correct? No. This testimony discloses mere solicitation unaccompanied by a physical' effort to effectuate his intent. No overt act amounting to an assault was committed unless it may be said that she could not lawfully consent to that which was done. Nothing was done by him except to solicit her consent. Everything was lawfully acquiesced in by the prosecutrix and sexual intercourse was neither had nor attempted, nor was an unlawful assault made. There was no overt preparation for the act. Therefore no crime was committed, however intense his desire or wavering his hopes. She was not being detained and there is no present existing intent shown to realize the fruit of a consent not yet given. The mere laying on of hands under the cir-cuihstances is not an unlawful assault, but the court said it was. The jury in this case could rigidly adhere to the literal primary meaning of the words of the instruction given and undoubtedly did so.
The evidence does not support the verdict. It may not be said that “nothing but actual sexual intercourse was necessary, to follow the acts described as an assault, to constitute rape upon a female of that age” (State v. Sherman, supra), since no unlawful assault was committed preparatory to the consummation of the act then and there.
An examination of the Iowa cases of this character dis*1057closes that the verdicts were sustained on evidence that established an unlawful assault.
In ¡State v. Sherman, 106 Iowa 684 the defendant asked or caused the prosecutrix to lie down and he disarranged and unbuttoned her clothing for the purpose of having sexual intercourse with her. In State v. Carnagy, 106 Iowa 483 the evidence “tends to show that the defendant did his utmost to accomplish his wicked purpose, and if he failed, it was because of the tender years of his victim.” In State v. Johnson, 133 Iowa 38, the accused decoyed the girl from her younger sister, fastened the door when with her in the room and the evidence “tended to show at least two criminal attempts.” In State v. Haugh, 156 Iowa 639 the defendant was found guilty of assault to rape on an indictment charging the crime of rape. The evidence disclosed an actual assault. In State v. Jerome, 82 Iowa 749 an unlawful assault was made by defendant upon a girl four years of age. In State v. Grossheim 79 Iowa 75 the evidence tended to prove that the defendant disarranged and removed the clothing so as to expose the private parts of the prose-cutrix and that he also opened his own clothing, exposed his private parts, and drew the prosecutrix upon his person while he was lying down.
I deem it unnecessary to further examine our own decisions as they are clearly distinguishable on the facts from the instant case. Suffice it to say that the verdicts were predicated on unlawful assaults. It is a sad commentary on human nature that cases like this should occur, but verdicts should stand only when the essential elements of the crime charged have been established, and the acts of the accused constitute a crime under our penal law.