(concurring in part and dissenting in part) :
Professor Jerome Hall traces the difficulty in analyzing the defense of impossibility in criminal attempts to Baron Bramwell’s original use of illustrative fact situations “from Never-Never Land” in Regina v Collins, 9 Cox CC 497, 169 Eng Rep 1477 (1864). Hall, General Principles of Criminal Law, 2d ed, page 693. am inclined to attribute it to a growing tendency on the part of legal theoreticians to attach more importance to the evilness of a man’s intent than to his acts — a belief, if you will, that the law should punish sinful thoughts if accompanied by any sort of antisocial conduct which evidences the design to execute forbidden acts.) When certain courts adopt such broad penal theories and others reject them, the result is the legal morass to which my brothers refer.
( The path which they have found out of this bog of theory, speculation, and learned dissertations is indeed tempting, for it eliminates any need to concern ourselves with the- close'and intri-~cafg~cTuestion whether accused's actions fall within the area "of"legal impossibility. But I cannot in good conscience agree with a position whicn adopts a completely novel approacn to the law of criminal attempts without the slightest indication that such was the intent of Congress)in passing Uniform Code of Military 'Justice, Article 80, 10 USC § 880.
The mentioned statute provides pertinently:
“ (a) An act, done with specific intent to commit an offense under this chapter, amounting to more than mere preparation and tending, even though failing, to effect its commission, is an attempt to commit that offense.”
The sole Congressional reference to the foregoing Article indicates only that it was intended to provide specifically for that which “is now punished under the general articles” and, among other references, directs attention to sections 42 and 43 of Naval Courts and Boards, 1937. Hearings before House Armed Services Committee on H. R. 2498, 81st Congress, 1st Session, page 1224.
The cited provisions of Naval Courts and Boards, supra, deal with the entire subject of attempts in just ten lines, none of which touch upon the doctrine of impossibility.
The legislative history of Code, supra, Article 80, is, therefore, devoid of any indication that Congress intended to change antecedent military law regarding legal impossibility. The principal opinion, however, rests its conclusion that such was the legislative plan upon the premise that the Article itself does not set forth legal possibility as an element Of a criminal attempt and that the Manual for Courts-Martial, United States, 1951, evidences a violent change in the Congressional approach.
With all deference, I suggest that the failure of the Article to include legal possibility as an element is not material to our construction of the statute. One may scrutinize the punitive Articles of the Code from end to end without finding provisions therein which negate affirmative defenses. Thus, nowhere does the Code mention mental responsibility, honest and reasonable mistake of fact, partial mental responsibility, or, except in some isolated instances, knowledge. Yet, with respect to all crimes in the case of some of these defenses, and with respect to some offenses, in the case of the others, we have found no legislative intent to abolish them from the mere failure of Congress to include as an element, for example, that the accused be sane, or that he have knowledge of a *293particular state of facts. See United States v Simmons, 1 USCMA 691, 5 CMR 119, and United States v Wallace, 2 USCMA 595, 10 CMR 93, especially concurring opinions of Judge Brosman.
In like manner, the Manual for Courts-Martial, United States, 1951, offers no basis for concluding that Code, supra, Article 80, was intended to adopt the approach of The American Law Institute and eliminate the defense of legal impossibility. In the first place, as has been quite clearly pointed out for a unanimous Court, the Manual, supra, is binding upon us only insofar as it purports to set out, not inconsistently with the Code, maximum limitations on punishments, rules of procedure, and principles of evidence. United States v Smith, 13 USCMA 105, 32 CMR 105. In matters of substantive law, it is we, rather than the President, who speak with authority. Yet, I find in the language used by the majority— perhaps unwittingly — an intimation that we are bound to accept what can purport to be no more than an executive construction of Code, supra, Article 80.
More importantly, I find nothing in the Manual’s discussion oí criminal attempts which indicates thajpt was~Fe-li^ed~that~thg~fle!l:ense otTlega^Las' opposed" to (factual) — mipossmiíity was abolished uporTenactment of the Uniform Code. Indeed, the Manual indicates precisely the contrary view, for it states:
“It is not an attempt when every act intended by the accused could be completed without committing an offense, even though the accused may at the time believe he is committing an offense. But an accused may be guilty of an attempt, even though the crime turns out to be impossible of commission because of an outside intervening circumstance or because the accüsédNñiscalcuiated his opportunity to commit the offense intended. For example, if A without justification or excuse, levels a gun at B with intent to kill B, and pulls the trigger, A is guilty of attempt to murder, even though, unknown to A, the gun is defective and will not fire. A pickpocket who puts his hand in the pocket of another with intent to steal his purse is guilty of an attempt to steal, even though the pocket is empty.” [Emphasis supplied.] [Manual, supra, paragraph 159.]
The foregoing constitutes a classic statement of the defense of legal impossibility. As such, it is a recognition of antecedent military law and a continuation of the principles applicable to criminal attempts under the Articles of War. Thus, the Manual for Courts-Martial, U. S. Army, 1949, provided, in paragraph 183c:
. . It is not an attempt when every act intended by the accused could be completed without committing a crime, even though the accused may at the time believe he is committing a crime. Thus, to shoot at a log believing it to be a man would not be an attempt to murder.” [Emphasis supplied.]
The identical provision is found in the Manual for Courts-Martial, U. S. Army, 1928, at page 190. Cf. Manual for Courts-Martial, U. S. Army, 1921, § 417; Manual for Courts-Martial, U. S. Army, 1917, page 267; Winthrop’s Military Law and Precedents, 2d ed, 1920 Reprint, pages 383, 732.
As the current Manual, supra, expressly restates the applicability of the doctrine of legal impossibility in criminal attempts and thereby continues in effect the interpretation attributed by former texts to the Articles of War, I am at a loss to understand how it may be concluded that its drafters recognized a supposed Congressional design to eliminate this defense. True it is that the illustration of shooting at a stump is replaced by reference to examples of factual impossibility and that the discussion of attempts is extended considerably over the brief treatment formerly accorded them. No doubt such is due to the authors’ recognition of the fact that military law was now to be administered primarily by lawyers who would have some grasp of the intricacies of the problem. To say, however, that the use of different hypotheses and the elimination of stump-shooting as an example suffices to over*294turn a well-recognized and important criminal defense expressly continued in the same paragraph is plainly specious.
Nor is it sufficient to dismiss the Manual’s statement of the doctrine of legal impossibility with the observation that it means no more than, if accused’s acts were completed, and such did not constitute any crime, he cannot be convicted of an attempt even if he subjectively, albeit erroneously, believed his acts constituted a crime. Such reasoning is casuistic in the extreme. At first blush, it seems to say that the crime being legally impossible, there can be no conviction of an attempt. That, of course, is in direct contradiction to the entire thrust of the principal opinion and, if I am correct in my belief, what my brothers are really saying is that, if accused’s intended conduct is not an offense at all, he cannot be convicted of an attempt to commit a particular crime. So to pervert the plain meaning of the Manual’s declaration, I suggest, is to do a grave injustice to its drafters and, at the same time, so to widen the scope of criminal attempts as to render their prosecution purely trials for the possession of criminal intent alone. Under such a rule, one who intended to commit any criminal offense at all might, if he did sufficient acts, be convicted of an attempt to commit an entirely unrelated offense. Thus, I suggest that the construction which the majority place on the Manual, supra, is unreal and that the reasoned interpretation of its provision is simply to continue the application of the defense of legal impossibility to Code, supra, Article 80.
I am reinforced in this conclusion by the construction of the statute before us by an Air Force board of review in United States v Woodard, 17 CMR 813, and our decision in United States v Dominguez, 7 USCMA 485, 22 CMR 275.
In the Woodard case, the board of review recognized the applicability of the doctrine of legal impossibility in military law, quoting with approval the statement from the Manual, supra, and referring to the earlier example of shooting at a log, believing it to be a man. United States v Woodard, supra, at page 830.
In United States v Dominguez, supra, at page 487, we unanimously concluded that one who injected a white powder in his own vein, believing such to be a habit-forming drug, was guilty of attempted use of narcotics quite without regard to the real nature of the substance. In so holding, we emphasized that the offense was apparently possible of consummation but recognized that one might not be convicted of an attempt to do an inherently impossible crime. Our language there constitutes a brief but clear exposition of the doctrine of legal as opposed to factual impossibility.
What the majority does, then, is not to interpret the statute before us but to legislate into existence the suggestion made by The American Law Institute in 1960 as a part of a Code enacted ten years before. It is difficult to concede to the Congress, wise as it may be, the clairvoyance implicit in such a construction of Code, supra, Article 80, when the problem went unmentioned in the hearings before the Armed Services Committees of both branches of the National legislature and in the debate before the House and Senate. So to adopt the solution proposed by scholars of the law to the cloudy questions for which they themselves are responsible is totally to abandon our role as judges and to succumb to the temptation to shape the statute in accordance with our own moral concepts rather than those of the people, as collectively expressed through their duly elected representatives.
That is precisely what is meant by justice under law rather than men, a fundamental principle of our system of government to which judges and attorneys frequently refer but too seldom adhere, preferring to substitute their wisdom for that of the legislature. For my part, absent a clear indication of Congress’ intent to the contrary, I would leave to it the function of amendatory simplification.
Nor can I concede that judicial amendment is justified either on the basis of the difficulty of the question *295before us or in order to save the military lawyer from dealing with the fine points of an intricate defense. Our task at best is no easy one, for Congress left many interstices of the Code to be filled by judicial interpretation. But we abandon our role as judges when we permit ourselves to be deterred from seeking wisdom among confusion on the pretext that the problem is too troublesome for understanding by either us or our bar. There are a vast number of conflicting decisions on every facet of the criminal law. It is our function to winnow out those which savor of sound and logical reasoning and to erect thereon our understanding of the law as Congress has enacted it. If the legislature disagrees, it may, as it has done in the past, quickly correct our views. But it is emphatically not our duty _to supplant the legislature'Ey''doing"that which we believe_they should have done. And that is precisely what occurs when there is read into Code, supra, Article 80, the terms of a model enactment, proposing for the first time the abolition of a well-rooted principle of the law of attempts.
With all due deference, therefore, I cannot join my brothers in their conclusion that Congress intended to do away with the worrisome distinction between factual and legal impossibility when it enacted Code, supra, Article 80. Unlike United States v Marsh, 13 USCMA 252, 32 CMR 252, I can find no evidence of a legislative *scheme .to change a prior, well-established prin-ciplér~To~t&é contrary^'every signpost, on the path which the majority takes points in the direction opposite to that which they travel. I_suggesL_therefore, that it is necessary to__meet thA¿rpbIem before us head oñ and to descend into t£~e whirlpool óf commentaries,., articles, and opinions which surround the certificate.
As is pointed out in the principal opinion, the certified questions essentially inquire whether accused may be found guilty of attempted rape and conspiracy to commit rape when it appears that the “victim” was dead at the time of the offenses.
It should be noted at the outset that we are all in agreement that the offense of rape itself cannot be committed upon the body of a dead person. While cases directly involving a charge based upon such bizarre circumstances have not been found, such is the clear implication of Code, supra, Article 120, 10 USC § 920. See also Greenlee v State, 4 Tex App 345 (1878), and 75 CJS, Rape, § 38. The statute requires an act of sexual intercourse by the accused “with a female not his wife.” A female is a living human being. 32 Words and Phrases, Person, page 309. And a “corpse is not a ‘person.’ That which constitutes a person is separated from the body by death.” Brooks v Boston & N. St. Ry. Co. 211 Mass 277, 97 NE 760 (1912). Moreover, we have heretofore implied that the victim must be alive in order for the accused to be found guilty of rape. United States v Long, 2 USCMA 45, 48, 6 CMR 45, 48.
As it is, therefore, an utter impossibility for the consummated offense of rape to be committed upon the body of a dead person, may the accused who commits all the acts necessary to such offense upon a dead body, with the requisite mens rea, be convicted of an attempt to rape? The authorities in point have been cited at length in the principal opinion. In light of the conclusion which I reach, however, it is necessary to undertake a further discussion of underlying principles, their development, and their application to the facts with which we are confronted.
The development of attempts to commit crimes is a relatively recent innovation in the law. Its ancestor is apparently the decision of the King’s Bench in Rex v Schofield, Cald 397 (1784). There, the defendant was indicted and tried for arson upon proof that he had placed a lighted candle among combustibles in a certain house, with intent to burn it. There was no proof of burning. The court held that the completion of an act, criminal in itself, when done with the necessary intent, was not required to constitute criminality. It pointedly inquired:
“. . . Is it no offence to set fire to a train of gunpowder with intent to burn a house, because by accident, *296or the interposition of another, the mischief is prevented?” [Cald at page 400.]
The principle that attempts were indictable was restated and settled in Rex v Higgins, 2 East 5 (1801). See, generally, Sayre, “Criminal Attempts,” 41 Harvard Law Review 821. Fifty-six years later, the question of impossibility was raised for the first time by Baron Bramwell’s famous statement in Regina v McPherson, Dears & B 197 (1857), at page 201:
. . The argument that a man putting his hand into an empty pocket might be convicted of an attempt to steal, appeared to me at first plausible; but suppose a man, believing a block of wood to be a man who was his deadly enemy, struck it a blow intending to murder, could he be convicted of attempting to murder the man he took it to be?”
Subsequently, in Regina v Collins, supra, the English judges expressly held that attempted larceny was not made out by proof that the defendant pickpocket actually inserted his hand into the victim’s empty pocket with intent to steal, Chief Justice Cockburn declaring, at page 499:
“We think that an attempt to commit a felony can only be made out when, if no interruption had taken place, the attempt could have been carried out successfully, and the felony completed of the attempt to commit which the party is charged.”
This broad language, encompassing as it did both physical and legal impossibility, was later rejected by the English courts and the inability of the pickpocket to steal from an empty pocket held to be no defense to attempted larceny. Regina v Ring, 17 Cox CC 491, 66 LT (NS) 300 (1892). Such has been almost uniformly followed as the law in this country. See the cases collected in Sayre, op cit, page 855, footnote 113; cf. United States v Williams, 12 USCMA 683, 31 CMR 269.
Passing from the earlier English pronouncements concerning impossibility to modern decisions and commentaries, it appears almost universally true that physical or factual impossibility is not recognized as a defense to a charge of attempt, whereas legal impossibility is accorded such a status. The difficulty arises when various jurisdictions attempt to assign a particular factual situation to one or the other of these two categories.1
Impossibility cases have generally involved homicide, larceny and related crimes, rape, and what might be classified as a hodgepodge of statutory offenses, ranging from abortion to corruption of jurors.
The homicide cases have usually involved the absence of the victim. In State v Mitchell, 170 Mo 633, 71 SW 175 (1902), it was established that the defendant fired two shots into his intended victim’s bedroom for the purpose of slaying him. The victim, however, was elsewhere in the house, and the attack went for nought. Rejecting the contention that accused should not have been convicted of attempted murder, the court stated, at page 177:
. . So in this case the intent evidenced by the firing into the bedroom with a deadly weapon, accompanied by a present capacity in defendant to murder Warren if he were in the room, and the failure to do so only because Warren happily retired upstairs instead of in the bed into which defendant fired, made out a perfect case of an attempt within the meaning of the statute. . . .”
See also, to the same effect, United States v Cruz-Gerena, 49 BR 245.
In Stokes v State, 92 Miss 415, 46 So 627 (1908), the defendant hired an assassin, agreed to provide him with a loaded weapon, and accompanied him to *297a place of concealment from which the victim was to be ambushed. Defendant was arrested as he was handing the weapon to the assassin. The victim was not shown to be in the vicinity. In concluding that attempted murder had been made out, Judge Mayes declared, at page 629:
. . All the authorities hold, that, in order to constitute an attempt, the act attempted must be a possibility; and counsel argue from this that the appellant could not have committed this crime at the time he was arrested, because Lane was not even there, and therefore, they say, no conviction could be had. It was no fault of Stokes that the crime was not committed. He had the gun, and the testimony warrants the conclusion that it had been taken for the purpose of killing Lane. It only became impossible by reason of the extraneous circumstance that Lane did not go that way, and, further, that he was arrested and prevented from so doing. This rule of the law has application only to a case where it is inherently impossible to commit the crime. It has no application to a case where it becomes impossible for the crime to be committed, either by outside interference or because of miscalculation as to a supposed opportunity to commit the crime which fails to materialize; in short, it has no application to the case when the impossibility grows out of extraneous facts not within the control of the party.”
People v Lee Kong, 95 Cal 666, 30 Pac 800 (1892), involved a defendant who shot at a hole in the roof of his gambling establishment, intending to kill a policeman whom he supposed to be watching there. In fact, the policeman was on the roof but at another hole safely distant from the aperture at which defendant fired. The court said, at page 801:
“In this case the appellant had the present ability to inflict the injury. He knew the officer was upon the roof, and knowing that fact he fired through the roof with the full determination of killing him. The fact that he was mistaken in judgment as to the exact spot where his intended victim was located is immaterial. That the shot did not fulfill the mission intended was not attributable to forbearance or kindness of heart upon defendant’s part; neither did the officer escape by reason of the fact of his being so far distant that the deadly missile could do him no harm. He was sufficiently near to be killed from a.bullet from the pistol, and his antagonist fired with the intent of killing him. Appellant’s mistake as to the policeman’s exact location upon the roof affords no excuse for his act, and causes the act to be no less an assault.”
In State v Damms, 9 Wis 2d 183, 100 NW2d 592 (1960), a different situation was presented. Accused, with intent to kill, held a pistol to his wife’s head, and pulled the trigger twice. The weapon did not fire, as it did not contain any cartridges. The evidence indicated that accused in fact thought it was fully loaded.
Relying on a great number of decisions involving similar facts, the Wisconsin Supreme Court held that the defendant was properly convicted of attempted murder. It said, at page 596:
“Sound public policy would seem to support the majority view that impossibility not apparent to the actor should not absolve him from the offense of attempt to commit the crime he intended. An unequivocal act accompanied by intent should be sufficient to constitute a criminal attempt. Insofar as the actor knows, he has done everything necessary to insure the commission of the crime intended, and he should not escape punishment because of the fortuitous circumstance that by reason of some fact unknown to him it was impossible to effectuate the intended result.”
See also State v Glover, 27 SC 602, 4 SE 564 (1888), wherein administration of an insufficient quantity of poison or even of a nonpoisonous substance to defendant’s intended victim, *298with intent to kill, was held to constitute assault with intent to commit murder. Cf. State v Clarissa, 11 Ala 57 (1847).
In People v Jaffe, 185 NY 497, 78 NE 169 (1906), it was concluded that the defendant could not be guilty of an attempt to receive stolen property when the cloth which he received was in fact not stolen. Cf. People v Gardner, 144 NY 119, 38 NE 1003 (1894). In the Jaffe case, the court noted, at page 169:
“. . . In passing upon the question here presented for our determination, it is important to bear in mind precisely what it was that the defendant attempted to do. He simply made an effort to purchase certain specific pieces of cloth. He believed the cloth to be stolen property, but it was not such in fact. The purchase, therefore, if it had been completely effected, could not constitute the crime of receiving stolen property, knowing it to be stolen, since there could be no such thing as knowledge on the part of the defendant of a nonexistent fact, although there might be a belief on his part that the fact existed. As Mr. Bishop well says, it is a mere truism that there can be no receiving of stolen goods which have not been stolen. 2 Bishop’s New Crim. Law, § 1140. It is equally difficult to perceive how there can be an attempt to receive stolen goods, knowing them to have been stolen, when they have not been stolen in fact.
“The crucial distinction between the case before us and the pickpocket cases, and others involving the same principle, lies not in the possibility or impossibility [factual?] of the commission of the crime, but in the fact that, in the present case, the act, which it was doubtless the intent of the defendant to commit would not have been a crime if it had been consummated.” [Emphasis supplied.]
Some jurisdictions have concluded that attempts to commit larceny by false pretenses occur where the victim knows the defendant’s representations are false but parts with his money or property without reliance thereon. Thus, in State v Peterson, 109 Wash 25, 186 Pac 264 (1919), the appellant called a department store and sought to obtain delivery of merchandise by falsely representing herself as another credit customer. The store was not deceived by her pretense and notified police officers. Appellant .was apprehended when she called for the merchandise. In concluding that attempted larceny had been made out, the Washington Supreme Court stated, at page 265:
“. . . Had the ruse succeeded in its entirety, there would have been a consummated offense, and it does not follow from the fact that the em-ployés of the merchandise house were not deceived there is taken away from the transaction the element of attempt to deceive.”
A like result was reached in Williams v State, 209 Miss 902, 48 So 2d 598 •(1950), wherein the fraudulent representation was not acted upon at all by the intended victim. The court noted that the “only thing lacking in the consummation of the larceny was the actual delivery of the money.” Williams v State, supra, at page 600. See also Commonwealth v Johnson, 312 Pa 140, 167 Atl 344 (1933).
In Marley v State, 58 NJL 207, 33 Atl 208 (1895), the defendants were indicted for incurring a debt on behalf of their county in excess of the limit permitted by law. It was shown in defense that the debt which the defendants contracted was void in law. In upsetting a conviction of attempt to incur a debt beyond the permissible limit, the court pointed out that, as the debt was a nullity from the standpoint of the body politic, it was legally impossible for it to have been incurred. Hence, the conviction of attempt would not lie. Marley v State, supra, at page 210. See also State v Weleck, 10 NJ 355, 91 A2d 751 (1952).
In like manner, it has been held that one does. not commit the crime' of attempted embracery when the individual whom he sought to corrupt was in fact not a juror, having been previously éx-*299cused from attendance upon the trial. State v Taylor, 345 Mo 325, 133 SW2d 336 (1939); State v Porter, 125 Mont 503, 242 P2d 984 (1942). And where defendants intended to sell pears in violation of a pricing order and did in fact sell them, it was concluded that there could be no conviction of an attempt to violate the order upon a showing that the actual sale was within the order’s terms. Rex v Dalton, 33 Crim App R 102 (1949). Nor could there be a conviction of an attempt to pursue and take a deer out of season upon proof that the defendant shot a stuffed deer. State v Guffey, 262 SW2d 152 (1953) (Missouri). In the last cited case, the court remarked, at page 156:
“. . . The State’s evidence shows that one of the defendants did shoot the dummy but did they pursue, chase or follow a deer by shooting this stuffed defunct doe hide? It was not a deer. If the dummy had been actually taken, (it could not be pursued) defendants would not have committed any offense. It is no offense to attempt to do that which is not illegal. See Burdick’s Law of Crime, Vol. 1, Sec. 143, et seq. (1946). Neither is it a crime to attempt to do that which it is legally impossible to do. For instance, it is no crime to attempt to murder a corpse because it cannot be murdered. See State v Taylor, 345 Mo. 325, 133 SW 2d 336, loc. cit. 341.”
On the other hand, it has been held possible to attempt to possess narcotics when the powder which defendant was furnished was in fact innocuous. People v Siu, 126 Cal App 2d 41, 271 P2d 575 (1954). Indeed, we have extended the same principle to a conclusion that it is equally proper to convict of attempted use of narcotics without regard to the true nature of the injected substance. United States v Dominguez, supra.
Charges of attempted rape seem uniformly to have allowed legal impossibility as a defense when a juridical impediment was found to prevent the consummation of the crime. Thus, in Frazier v State, 48 Tex Crim 142, 86 SW 754 (1905), it was concluded to be legally impossible for a husband to be convicted of the attempted criminal violation of his wife’s person. And in Foster v Commonwealth, 96 Va 306, 31 SE 503 (1898), a jurisdiction applying the common-law’s conclusive presumption of legal incapacity of a boy under the age of fourteen to commit rape determined that, because of such presumption, he could not be convicted of attempted rape. The court said, at page 505:
“The accused being under 14 years of age, and conclusively presumed to be incapable of committing the crime of rape, it logically follows, as a plain legal deduction, that he was also incapable in law of an attempt to commit it. He could not be held to be guilty of an attempt to commit an offense which he was physically impotent to perpetrate.”
Where, however, a jurisdiction holds to the view that a boy’s age as less than fourteen years creates only a rebuttable factual presumption of noncapacity, it also is concluded that there may be a conviction of attempted rape by such an individual. Davidson v Commonwealth, 20 Ky Law Rep 540, 47 SW 213 (1898). So, also, is the defense of legal impossibility unavailable in the case of individuals above the common-law age of legal capacity who, for physical reasons, are impotent and thus unable to consummate the crime of rape. Preddy v Commonwealth, 184 Va 765, 36 SE2d 549 (1946).
It seems to me that, from the foregoing authorities — representative as they are of the welter of decisions in this field — definite principles may be derived which, when applied to the facts depicted in the record before us, lead inevitably to the conclusion that accused’s conviction of attempted rape must be vitiated on the basis of legal impossibility. In the homicide cases, we find in every instance a victim in being upon whom the crime could have been committed and, except in Stokes v State, supra, in proximity to the scene of the actual attempt. Even in the Stokes case, the intended victim customarily traveled the route upon which the ambugh -yyg,§ laid, and the *300Mississippi Court made much of the fact that nothing remained to be done, insofar as acts were concerned, except to pull the trigger when the victim came fairly within the assassin’s sights. In short, the intended victim’s absence is simply a factual matter.
In the false pretense cases, again we find victims in being and defendants who have done everything necessary to the commission of the consummated crime except to convince their quarry of the validity of the confidence game. Their crimes were unsuccessful not because of legal considerations but only because of the fact that, in each instance, the actors underestimated the acumen of their human targets.
The same is true of one who possesses or uses milk sugar, believing it to be a narcotic preparation. People v Siu. supra; United States v Dominguez, supra. There is no legal impediment to conviction, for the accused has merely made a factual mistake concerning the identity of the supposed contraband, just as does the defendant who seizes a woman, intending to ravish her, but finds himself, for physical reasons, unable to effect penetration. Preddy v Commonwealth, supra; Territory v Keyes, 5 Dak 244, 38 NW 440 (1888); Hunt v State, 114 Ark 239, 169 SW 773 (1914).
In contrast to these cases upholding convictions of attempts wherein, but for the fact of absence, disbelief, poor aim, and physical inability to accomplish the result sought, are those in which there is, so to speak, no “victim in being.” Thus, we find that one cannot attempt to influence a juror who is not a juror. State v Taylor, supra; State v Porter, supra. One cannot attempt to pursue a deer which is nothing more than a stuffed hide. State v Guffey, supra. One cannot attempt to kill by firing into a corpse or commit rape upon a mannequin. 1 Bishop, A Treatise on Criminal Law, 9 th ed, 742; State v Taylor, supra; State v Guffey, supra. Nor can one attempt to receive stolen goods which are not in fact stolen, People v Jaffe, supra, or attempt rape where he legally has nq capacity so to act, Foster v Commonwealth, supra.
In each of these instances, there is simply no “victim” or thing which the particular law intended to be broken is designed to protect. Thus, em-bracery statutes are designed to protect jurors rather than those whom an accused believes to be jurors. Only stolen goods are within the proscription against attempts to receive. Only a deer can be the subject of an attempt to hunt deer. In short, the subject matter of accused’s acts must be one within the prohibition of the particular statute which he is alleged to have violated, no matter what his personal belief may be, so that he could have been convicted of the consummated crime had he been entirely successful.
No series of cases more clearly portray this distinction than those which deal with the legal incapacity of a boy under fourteen years of age to attempt rape as compared to those which hold simple physical impotency to be no such bar to conviction. In the one instance, the actor, because of a pure rule of law, is incapable of violating a woman, re- \ gardless of his actual precocij^r. In the other, there is no legal barj the inability being a fact resulting from some disease, disability, or infirmity of which the law refuses to take notice.
In like manner, the barrier to consummation of the crime charged here is not factual but legal. Indeed, accused did everything they set out to do, but thejr admittedly could not commit the actual crime of rape because their victim was dead and thus outside the protection of the law appertaining to that offense. Because the objective of their loathsome attentions was no longer subject to being raped, it seems to me that there cannot be any liability for an attempt, for, just as in the case of the lad under the age of fourteen, the stuffed “deer,” and the nonjuror, a legal rather than a factual impediment existed to the offense’s consummation. In brief, this is not the case of an empty pocket but one in which there was no pocket to pick. And, as is succinctly stated in the Manual, supra, at page 305:
*301“It is not an attempt when every act intended by the accused [sexual intercourse with a woman in fact dead] could be completed without committing an offense [rape], even though the accused may at the time believe he is committing an offense [rape].”
Finally, I believe that the position which my brothers take unnecessarily I emphasizes the accused’s mental frame of reference at the expense of what they actually did. The common-law concept that danger 'to society lay chiefly in action rather than in thought has much to commend it, based as it is upon centuries of experiential development. Particularly, however, is this true in the armed services, furnished as they are with general articles of the Code within whose scope conduct potentially invasive of any important social interest easily falls. See Code, supra, Articles 133, 134, 10 USC §§ 933, 934. Indeed, such is the course which was wisely followed here, for accused’s reprehensible behavior was charged as— and so sustained by the board of review — lewd and lascivious conduct in violation of Code, supra, Article 134. With the propriety of that conclusion, I am certain that none of us argue. When, however, it is found that such acts, albeit legally incapable of consummation, are also punishable as attempted rape, I believe we so widen the thrust of Code, supra, Article 80, that we permit punishment to be predicated upon one’s plans quite without regard to whether they may legally be completed. The door, therefore, is left open for the protection of logs against homicidal attack and of the supposed honor of dressmaker’s dummies. And to those who, as does Professor Hall, believe that these are hypotheses from Never-Never Land, I recommend the reading of the transcript before us.
Despite my position with respect to the charge of attempted rape, I would affirm the conviction of conspiracy to commit rape. Unlike criminal attempts, legal impossibility is not recognized as a defense to a charge of conspiracy. United States v Ventimiglia, 145 F Supp 37 (D Md) (1956); United States v Foster, 9 FRD 367 (SD NY) (1949). Although both crimes are, in a sense, inchoate offenses, their development has been somewhat different. At common law, conspiracy consisted only of the agreement to do an unlawful act or a lawful act in an unlawful manner. Clark and Marshall, A Treatise on the Law of Crimes, 6th ed, § 126. Although Code, supra, Article 81, 10 USC § 881, requires proof of an overt act in addition to the agreement to commit an offense under the Code, we have held that the heart of the crime remains the corrupt meeting of the minds. United States v Yarborough, 1 USCMA 678, 5 CMR 106; United States v Nathan, 12 USCMA 398, 30 CMR 398; United States v Kidd, 13 USCMA 184, 32 CMR 184. Here, the accused agreed to have intercourse with an unconscious girl against her will and while she was unable to resist. The averred overt act was also made out. As what these two men thus subj ectively agreed to be their objective constitutes in law the offense of rape, in violation of Code, supra, Article 120, 10 USC § 920, and as thereafter one of them performed an overt act, guilt of conspiracy is made out. My objection is simply to the action of my brothers in transferring the subjective approach in conspiracy to the objective questions involved in attempts.
For these reasons, I would affirm the decision of the board of review in part and reverse it in part.
Some writers state that legal impossibility is always a defense and physical impossibility usually is not. Close analysis of the problem will disclose that those cases in which “physical” impossibility has been held to be a defense are, in reality, cases of legal impossibility. Cf. Smith, “Two Problems in Criminal Attempts,” 70 Harvard Law Review 422. It is suggested that this mislabeling hás done much to add to confusion in the area.