(dissenting):
I agree with the majority that the question of what lesser offenses are raised depends on the facts of the case as alleged and proved. In this case the accused was charged as follows:
“In that Specialist Third Class Henry R. Hobbs . . . did, at Mannheim, Germany, on or about 2300 hours, 16 October 1955, attempt to rape Hilde Fiederlein, 28 Oberen Luisenpark, Mannheim, Germany.”
It is possible to commit the offense of attempted rape without committing an assault. E. g., People v Gibbons, 260 Mich 96, 244 NW 244; Payne v Commonwealth, 33 Ky Law Rep 229, 110 SW 311; Burton v State, 8 Ala App 295, 62 So 394; People v Gardner, 98 Cal 127, 32 Pac 880; Melton v State, 24 Tex App 284, 6 SW 39; accord, State v George, 79 Wash 262, 140 Pac 337; see Taff v State, 69 Tex Cr 528, 155 SW 214; People v Lee Kong, 95 Cal 666, 30 Pac 800. Cf. Aderhold v SchUtz, 73 F2d 381 (CA5th Cir) (1934); United States v Spain, 32 F Supp 28, 29 (ED Ill) (1940); United States v Barnaby, 51 Fed 20 (D Mont) (1892). Thus it is clear that assault with intent to commit rape, indecent assault, assault and battery, and simple assault, are not necessarily included offenses of the substantive crime of attempted rape. Though there is some difficulty in distinguishing the offenses of attempted rape and assault with intent to commit rape, as I conceive the difference an assault is not a necessary element in the crime of attempt to rape but is a necessary element in the crime of assault with intent to commit rape. This is implicit in the statement quoted by the majority opinion that every assault with intent to commit rape is an attempt but that the converse does not follow. The converse does not follow because án assault is not necessary in an attempt. I am not willing to say as a matter of law that an accused must commit assault to cease preparation and enter the forbidden zone of attempt. The fact that intent in most attempted rape cases is manifested by an assault does not make the offense of assault a necessarily included offense.
In the case of this particular attempt the President pursuant to authority has authorized a short form of pleading. This form— which was utilized in this case — consists of pleading the crime as a legal conclusion. Modern pleading theory is contrary to this form of pleading and requires that indictments set forth facts rather than mere legal conclusions; and when this form is used without additional facts it pleads only the substantive crime of attempted rape and, in my view, this precludes a finding of any other offense. E.g., Federal Rules of Criminal Procedure, Rule 7 (e). For this reason I believe that the words “attempt to rape” do not allege “facts” that include indecent assault or any other lesser included offense.
I agree that the facts proved at trial reasonably raise the offense approved *704by the board of review, but in my view, this is of no consequence.
“An accused may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein.” [Emphasis supplied.] [Article 79, Uniform Code of Military Justice, 10 USC § 879.]
I would not substitute the word “probably” — and its attendant concepts — for “necessarily” to the detriment of the accused.
It is evident from what I have said above that in my view there was error both at the trial level and at the board of review. At the trial level the law officer was in error when he instructed that a lesser included offense of attempted rape as charged was assault in violation of Article 128, Uniform Code of Military Justice, 10 USC § 928, even though lie later indicated that he thought the offense of assault and battery was not in issue in this case.
I believe the board of review — though in a separate concurring opinion one member indicated some misgiving — - compounded the error of the law officer by finding correct in law and fact only so much of the findings as involved indecent assault. The result of this finding illustrates the fallacy of a board of review arrogating to itself the right to cure what is thought is a trial level error by arbitrary reduction in the degree of the crime. In my view, the board of review could do only one of two things when this case was before it. It could either affirm the findings of the court-martial or dismiss the charge. In this case the result is that they have, in my opinion, acquitted the accused of the only crime charged. Whether the accused can now be tried for the of-enses — not included in this case — of assault and battery, assault, or indecent assault need not concern me at this time. This horrible state of affairs — acquitting to “cure the error” — was brought about by the inherent fallacy in using the device of the lesser included offense to “save” error in cases involving more than technical error and also by the poor practice of pleading by legal conclusion cases that factually deserve a more complete treatment.
I would reverse the board of review and dismiss the charge.