dissenting:
I respectfully dissent from that portion of the majority opinion which deals with the question of whether the court should have submitted to the jury the question of defendant’s guilt or innocence of the offense of “assault to commit rape.”
From the record and as outlined in the majority opinion, it appears that there was a continued, uninterrupted and successful effort on the part of the defendant leading to the act of sexual intercourse between the defendant and the complaining witness. There was no question whatever, as disclosed by the record and as indicated in the majority opinion, that the defendant did on the occasion involved have sexual intercourse with the complaining witness. The only question on which there was any controversy was whether the complaining witness consented or was forced to yield, and that question was submitted to the jury. The verdict of not guilty returned indicates that the jury must have concluded that there was consent and not force. There can be no question that if the defendant used force and threats and the complaining witness did not consent but resisted, the act of sexual intercourse constituted rape. An act of sexual intercourse so consummated constituted rape and, under such circumstances, could not amount to the offense of assault with intent to commit rape. Consum*245mation of the act constituting rape precludes the offense of attempt to commit the act. The general rule is stated in 75 C.J.S. 486, Section 20 (b):
“ * * * An assault with intent to rape is a factual assault on a female with the intent to have intercourse with her by force and against her will, notwithstanding resistance on her part, and coupled with the present means of effecting this intent. An assault with intent to rape is an incompleted rape, so that if accused had consummated his intent he would be guilty of rape. * * * stated otherwise, an assault with intent to rape includes every ingredient of the crime of rape except the actual accomplishment of that crime. * * *.
“ * * * Where the assault is made under such circumstances that the act of sexual intercourse, if it had been actually accomplished, would not have been rape, accused cannot be guilty of assault with intent to commit rape.”
And in 75 C.J.S. 492, section 27:
“Force on the part of the man and resistance on the part of the female are essential elements of the crimes of attempt to rape and assault with intent to rape.
“Force. Force is an essential element of these offenses, and there must be such force used in connection with the circumstances of the case as to establish beyond a reasonable doubt a purpose to have carnal knowledge of the female with or without her consent, regardless of how slight such force may be. * *
In Newman v. People, 79 N.E. 80, 223 Ill. 324, it is said:
“To warrant a conviction for an assault with intent to commit rape the proof must establish, beyond a reasonable doubt, every ingredient of the crime of rape except the accomplishment of that crime.”
I am of the opinion that out of one transaction cannot be spelled the two offenses of rape and assault with intent to commit rape. Where, as in this case, the uninterrupted actions of the defendant culminated in the act *246■of sexual intercourse, the defendant was either guilty or not guilty of the offense of rape; he could not be guilty •of an attempt to do an act that was actually accomplished. If there was no rape in the act of sexual intercourse, then there could be no assault with intent to ■commit rape.
This court has previously gone on record in conformity with the views above expressed in two cases mentioned in the majority opinion, to wit: Martinez v. People, 111 Colo. 52, 137 P. (2d) 690, and Lewis v. People, 124 Colo. 62, 235 P. (2d) 348.
In the Lewis case the court quoted with approval from 14 Am. Jur. 813, as follows:
“ * * * It must also be observed that a failure to consummate the crime is as much an element of an attempt to commit it as the intent and the performance of an overt act towards its commission. Hence, when a crime is completely consummated, there can be no prosecution for an attempt.”
This language fits the present case exactly, for there is no question that the ultimate act of having sexual intercourse was committed. So that if the other necessary ingredients of the crime of rape, which are essential to the crime of assault with intent to commit rape, were present, then the defendant is guilty of rape and, being guilty of rape, he cannot be guilty of the crime of an assault with intent to commit rape.
Both the Martinez and the Lewis case and the language there used, in my humble opinion, fit the case at bar. If we have the necessary proof to warrant conviction of the lesser offense of an attempt, then that evidence coupled with the admission of sexual intercourse at the time and place of the assault certainly establishes rape and the prosecution for an attempt to commit the ■completed offense must fail.