(dissenting):
I dissent.
This case presents a unique problem which I do not believe is correctly solved in the Court’s opinion. As I understand the ingredients of the two offenses, as defined in military law, assault with intent to commit sodomy includes an element not necessary to make out the crime of sodomy — that is, an assault. Sodomy, on the other hand, requires that the unnatural act be consummated by penetration — the assault does not. Accordingly, when I follow the rule of Blockburger v United States, 284 US 299, 76 L ed 306, 52 S Ct 180 (1932), and United States v MeVey, 4 USCMA 167, 15 CMR 167, or any other rule we have adopted, I conclude the crimes are separate. Also, it is my considered judgment that when the appropriate yardstick is applied, neither offense is included within the other.
I encounter some difficulty in ascertaining in what way the cases cited in *345the majority opinion support a departure from the well-accepted rule I set out above. A great deal of reliance is placed on New York cases, but I find little to support the Court in decisions from that State. I find it interesting to note that in that jurisdiction the statutes governing the offense of sodomy were revised in 1950. Undoubtedly they reflect a wise policy for that State but, as presently written, they are at variance with military law. However, when carefully considered, they appear to me to support the position that, unless combined by legislative enactment, the offenses of sodomy and assault with intent to commit that crime are separate. In its penal code, New York divided the offense of sodomy into three degrees, with the greater degree punishable by a maximum sentence of twenty years’ confinement. Punishment for the lesser degrees are scaled down. With some exceptions not here pertinent, in order to commit first degree sodomy, a defendant must perpetrate the two offenses of assault and sodomy, and obviously when a legislature has by statute made two offenses elements of a third and greater offense, the latter cannot be divided into the component, parts of two lesser offenses. Certainly, under the New York definition, assault is a necessary element of one type of first-degree sodomy, and hence it could not be punished if sentence is imposed on the greater offense.
In military law, sodomy is defined under Article 125 of the Uniform Code of Military Justice, 10 USC § 925. That section provides:
“(a) Any person subject to this chapter who engages in unnatural carnal copulation with another person of the same or opposite sex or with an animal is guilty of sodomy. Penetration, however slight, is sufficient to complete the offense.”
Assault with intent to commit sodomy is an offense proscribed by Article 134 of the Code, 10 USC § 934. In view of the fact that each is proscribed by a separate punitive Article and that an assault is not an element of sodomy, whether or not the offense is committed over the objection of the victim, it ean-not be argued that Congress intended to merge them into one offense or that sodomy necessarily includes any assault used to force its commission.
In the Table of Commonly Included Offenses, Appendix 12, Manual for Courts-Martial, United States, 1951, offenses such as murder, voluntary manslaughter, rape, and robbery are listed as the principal offense, and assaults with intent to commit those particular crimes are shown as lesser included offenses. In the case of sodomy, no included offense is listed, and I believe the reason for the difference is that the first enumerated crimes necessarily include an assault, while sodomy does not. In those instances, when an assault must be considered part of the principal offense, it is easy to understand why, if the greater crime is not consummated, the assault committed in the process ought to be a lesser included offense. In the case of sodomy, that reason does not prevail, for if an assault is present, it is in addition to and not part of the essential elements of the completed crime.
One further straw in the wind which indicates that sodomy and assault with intent to commit sodomy should be treated as separate crimes may be found in the Table of Maximum Punishments. The offense of sodomy is punishable by a maximum sentence of confinement not to exceed five years. However, in the instance of an assault with intent to commit sodomy, the maximum punishment is raised to ten years’ confinement. That clearly demonstrates to me that the framers of the Manual were of the opinion that assault with intent to commit sodomy was not a lesser included offense of sodomy.
That brings me to the last step in my process of reasoning. I believe we should not strain to merge these two offenses into a single crime. Under the law as announced by my associates, if an accused assaults a victim with intent to commit sodomy, he could receive a sentence of ten years’ confinement with accessories. However, if he commits the identical acts and he is successful in completing the act of sodomy, he cuts the maximum penalty in half. Under *346that concept, it pays to commit the more serious offense. Furthermore, in a great many sodomy violations, there are no assaults as the act is consensual. While an unnatural sexual act committed with the consent of the passive participant violates one norm of society, when the act is committed over the protest of the victim and he or she is physically abused, another norm has been ravished. A penalty for each breach ought to be imposed and the law should not be interpreted in such a manner that the two are forced into a single violation and the penalty is reduced.
The details of this offense are too revolting to relate. Therefore, I merely say that the nature of the assault and the nature of the sodomy show clearly why the two should not be merged into one crime with the concomitant reduction in the maximum sentence.