DISSENTING OPINION BY
MIZUHA, J.At the request of the State, the lower court instructed the jury on two theories of law to negate the element of consent.
State’s Instruction No. 6 properly instructed the jury as to what was sufficient on the part of the complaining witness as far as the element of resistance was concerned.
State’s Instruction No. 8 was improper. It read:
“Where a female is intoxicated to the extent of being unable to resist, the act of sexual intercourse is without her consent and is rape; but the intoxication must actually render her incapable of resistance, and not merely be such as to excite her passion.
*494“In this connection, you are further instructed that it is immaterial if you find that the complainant voluntarily consumed intoxicating liquors.” (Emphasis added.)
The language of State’s Instruction No. 8 is clearly inapplicable to the facts of this case. It assumes on the part of the court that there was evidence that the complaining witness was intoxicated to the extent of being “unable to resist,” where there was none. If at all, there was conflicting evidence only as to whether the complaining witness was intoxicated. “The assumption of a fact in controversy, the ultimate determination of which is within the exclusive province of the jury, constitutes prejudicial error.” Territory v. Cutad, 37 Haw. 182, 187. See also State v. Wheeler, 79 Mo. 366.
“Instructions in a criminal case are erroneous, and properly refused, which assume facts in opposition to the evidence in the case * * 1 Randall, Instructions to Juries, § 138 at 269-71.
“The trial court in charging the jury should never, either of its own motion or at the request of either party, give an instruction to the jury which assumes as true the existence or nonexistence of any material fact in issue in respect of which the evidence is conflicting or as to which there is dispute, or which is not supported by the evidence.” 53 Am. Jur., Trial, § 605 at 477-78.
“The rule is universal that an instruction to a jury cannot be predicated upon assumed facts upon which there is no proof * * Territory v. Corum, 34 Haw. 167, 183. See also McAndrews v. People, 71 Colo. 542, 208 Pac. 486.
“The court shall instruct the jury regarding the law applicable to the facts of the case * * R.L.H. 1955, § 231-23.
“[T]he judge is authorized in criminal cases to make *495such comment on the evidence and the testimony and credibility of any witness as in his opinion is necessary for the proper determination of the case. But this privilege has its inherent limitations. £His discretion is not arbitrary and uncontrolled, but judicial, to be exercised in conformity with the standards governing the judicial office. In commenting upon testimony he may not assume the role of a witness. He may analyze and dissect the evidence, but he may not either distort it or add to it.’ ” Territory v. Cutad, supra at 181.
The detailed testimony of the complaining witness clearly indicates that she was not intoxicated to the extent of being unable to resist. She testified, with great clarity, as to the manner in which the defendants approached her and had sexual intercourse with her. Excerpts of her testimony from the record appear in the margin below.1 *496She insisted that she resisted the efforts of each defendant. In reading the vivid description given by the complaining witness as to the events and conversations at the beach, it is rather difficult to arrive at the conclusion that she could have been “mentally unconscious” at the time and still be able to testify in the detailed manner she did during the trial.
One witness, a bartendress at the “Pub” where the *497complaining witness bad visited earlier in tbe evening, testified that sbe was “a fast drinker” and bad bad more than twenty drinks. On tbe other band, an assistant manager of tbe “Swing Club,” wbicb was visited later, testified as follows:
“Well, I wouldn’t say sbe was sober and I wouldn’t say sbe was drunk. Sbe bad been drinking but she *498wasn’t drunk enough where she didn’t know what she was doing. (Emphasis added.)
With reference to the state of intoxication of the complaining witness after leaving the Swing Club for the beach, defendant Oliveira2 testified that she was “under the influence of alcohol,” but defendant Fuchs3 testified that she talked “very coherently” and “that her speech was not slurred.” There was no other testimony as to the complaining witness’ state of intoxication after leaving the Swing Club. Therefore, the evidence was in conflict only on whether she was intoxicated. There was no evidence that she was intoxicated to the extent of being “unable to resist” at the beach.
One of the principal evils of instructions assuming facts unsupported by evidence is their tendency to mislead and confuse the jury. This court in Territory v. Cutad, supra at 186 was constrained to make this statement:
“Observations based upon human experience are statements of fact. Instructions of the court are limited to the law applicable to the case. Any observation by the court upon matters of common experience pertinent to the facts would necessarily interject an additional element not warranted by the evidence. * * deductions and theories not ivarranted by the evidence should be studiously avoided.’” (Emphasis added.)
The emphasized portion of the above-quoted paragraph originated in Burke v. Maxwell’s Adm’r, 81 Pa. St. 139, 153, where the court said:
*499“The evidence, if stated at all, should he stated accurately, as well that which makes in favor of a party as that which makes against him; deductions and theories not warranted by the evidence should be studiously avoided; they can hardly fail to mislead the jury and work injustice(Emphasis added.)
The condition of an alleged victim of rape relative to her state of intoxication bears on the issue whether the alleged acts were committed “against her will” under our statute. R.L.H. 1955, § 309-31.
In Gore v. State, 119 Ga. 418, 419, 46 S.E. 671, 672, the court, in discussing the “consent” element in the law of rape, states the following:
“The authorities generally, however, construe the words 'against her will’ to be synonymous with 'without her consent,’ and hold the act of sexual intercourse is against the woman’s will when, from any cause, she is not in a position to exercise any judgment about the matter. Thus intercourse with a woman whose will is temporarily lost from intoxication, or unconsciousness arising from the use of drugs or other cause, or sleep, etc., is rape.”
Thus, in order to constitute rape, the state of intoxication required is such intoxication that renders a woman insensible, helpless, unconscious or in a state of insensibility. 75 C.J.S., Rape, § 14(a); Queen v. Camplin, 1 Cox Crim. Cas. 220; Commonwealth v. Burke, 105 Mass. 376, 7 Am. Rep. 531; Quinn v. State, 153 Wis. 573, 142 N.W. 510; People v. O’Brien, 130 Cal. 1, 62 Pac. 297.
A corollary to the rule against giving an instruction assuming facts in opposition to the evidence is the principle that, in order to sustain a general verdict of guilty when the case has been submitted to the jury under two distinct theories as to the guilt of the accused, the evidence must be sufficient to sustain a conviction under *500either. 20 Am. Jur., Evidence, § 1216. In People v. Sullivan, 173 N.Y. 122, 126-27, 65 N.E. 989, the court stated:
“* * * the guilt of the defendant was submitted to the jury on both claims of the People, first, that the deceased was killed with a deliberate and premeditated design to effect his death, and, second, that he was killed by the defendant while the latter was engaged in the perpetration of a felony or an attempt to commit one, if as to either claim the evidence was insufficient to justify the submission of the question to the jury the conviction must be reversed since it cannot be known on which ground the jury based its verdict (Emphasis added.)
In the Sullivan case, supra, the court found that there was sufficient evidence to support a verdict under either theory. In the instant case if the State had relied solely on the theory of intercourse with a drunken woman “unable to resist” there is no doubt that State’s Instruction No. 8 would have been refused and the evidence submitted as to the complainant’s condition would not have justified sending the case to the jury.
It is further contended that a verdict of guilty of a lesser degree as attempted rape cures errors in instructions as to a higher degree. “[Sjpecific intent in an attempt to commit the crime of rape embraces every element of the crime of rape except its accomplishment.” State v. Huffman, 141 W. Va. 55, 80, 87 S.E.2d 541, 556. “Intent, which is essential to support a conviction of an attempt to commit rape, cannot be assumed, but must be shown by competent evidence, and beyond a reasonable doubt.” Hall v. State, 67 Okla. Crim. 330, 353, 93 P.2d 1107, 1118. Although State’s Instruction No. 8 is purportedly directed only at the charge of the higher crime of rape, it is also directly applicable to the charge of *501attempted rape.4 Unfortunately, there is no way of determining whether the jury based their verdict for attempted rape on the defendants’ intent to have sexual intercourse with a woman so drunk as to be “unable to resist,” or with a woman who was able to resist, or both.
Since there is a possibility that the conviction of attempted rape may be based upon the theory stated in State’s Instruction No. 8 which is not supported by the evidence, the verdict should be set aside and a new trial granted.
Direct examination of the complaining witness with reference to defendant Oliveira:
“MRS. BERG: Then Oliveira held my arms while Euchs pulled my muw-muu off. Then after they got my m/wu-miiu off, the first thing I knew, I was on the sand.
“MR. SARUWATARI (Public Prosecutor) : At that time who was present?
“A Oliveira and Fuchs.
“Q And yourself?
“A And myself.
“Q All right. You found yourself on the sand. What happened then?
“A The first thing I knew, Oliveira was on top of me. I tried to — he got on top of me and I tried to raise up my arms but I didn’t get up. I couldn’t get up.
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“Q We’re at a point where Mr. Oliveira was on top of you. Where was Mr. Fuchs, if you know?
“A I don’t remember.
“Q What happened when Mr. Oliveira got on top of you?
“A He kept pushing his — jabbing his penis into me until he got it into me.
“Q Got it in where? What do you mean by ‘got it in’?
“A He got it into my vagina.
“Q Will you tell the Court and jury, please, what you were doing and what he was doing?
“A When he got on top of me he spread my legs and he kept jabbing *496his penis into my vagina until he got it into me. And I tried to raise up on my arms but I couldn’t get up.
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Direct examination of the complaining witness with reference to defendant Gager:
“A Gager got on top of me and I said, ‘Sonny, not you. What are you doing here? Get oft' me and leave me alone.’ But he didn’t leave me alone and he wouldn’t get off me. I tried to — the same with Oliveira, I tried to push my legs together, but I was unable to. He also pushed my legs apart with his hands and he kept jabbing his penis into me until he got it in me. And I kept telling him to get off me and leave me alone. But he didn’t.
“Q You said you told him, ‘Sonny, get off of me’?
“A Yes.
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“A (Continuing) While Sonny was on top of me X kept twisting my head from side to side and I happened to turn towards the right and I saw Histo coming toward me and I asked them to keep him away from me, keep him away from me. He kept coming toward me.
“Q Who kept coming toward you?
“A I hate niggers. I can’t help it.
>:« * * * * * * * * * * * * ❖ Direct examination of the complaining witness with reference to defendant Histo :
“A While Gager was still on me, I happened to turn my head toward the right and I saw Histo coming toward me and I told them to keep him away from me.
“Q Who did you tell that to ?
“A I told that to Gager but he didn’t do anything, he didn’t say anything. I kept telling him to keep him away from me; don’t let him come near me. But they didn’t do anything. And Histo kept coming toward me and as soon as Gager got off Histo got on me. And he kept jabbing his penis into me — into my vagina until he got it into me.
“Q What were you doing?
“A I tried to raise up on my arms but I couldn’t.
“Q Will you proceed.
“A So while I tried to — I told him to get off me and leave me alone, but he didn’t do anything.
“Q This is Histo you’re talking about?
“A Yes.
“Q What else happened, if anything?
“A So I reached up and I found a chain around his neck and I grabbed *497it and yanked it off his neck. After that, after I yanked it off his neck, he said, ‘You’re going to get it.’ And I told him, ‘You’re going to get it.’ After I yanked the chain off his neck he said, ‘Let’s knock her off.’ Then I heard someone say, ‘Leave her alone.’
Direct examination of the complaining witness with reference to defendant Fuchs:
“Q Did anything else happen ? Will you proceed.
“A While he was on me, Fuchs was standing nearby, and as soon as Histo got off, Fuchs got on me and he kept jabbing his penis into my vagina until he got it in me. And I told him to get off me and leave me alone. And I was crying and screaming and he put his hand over my mouth. He wouldn’t take it away. He said if I would shut up he would take his hand away so I tried to stop screaming enough so that he would take his hand away, but he didn’t. He kept his hand over my mouth. While he had his hand over my mouth, I bit him. I tried to get him off by raising up my arm, but I just couldn’t. He kept his hand on my mouth the whole time he was on top of me, and I couldn’t scream, I couldn’t do anything. So finally, then he got off after a long time and I asked him where my damn clothes were and he went and found them. And I put my underpants back on and I asked him where my purse was and he gave me my purse and X found my shoes upside down in my purse.
sjs ❖ ❖ $ * # * £ * sjc * $ $ *
“Q While Fuchs was on you, is that all you recall that happened?
“A After Fuchs got off me I asked him where my elothes were. He went and found my clothes and I put my underpants on, and my muumuu. I put my stockings in my purse where my shoes were and I had to walk across some rocks with barnacles or something. And he asked me if he could help me and I said, ‘No, leave me alone.’ So, I got up to where the small road was and I kept swatting him in the face with my girdle and—
************** “Q Then what happened?
“A When I reached the waU on the small road, I stopped and put my shoes on and he asked me if I needed any help and I told him, ‘Keep away from me. Get away from me.’ And then he started to walk away. And he left me there. After he left I went to this small house and knocked on the door and asked them if they would help me, but nobody would answer the door but I heard a small dog barking inside. So nobody answered the door and nobody came out so then I walked up to the wide highway and waited a few minutes. And then a car came by and the driver asked me if needed a lift home and I said yes. And I told him that I got raped and he asked me — ”
The defendant Oliveira also testified that the complainant had been “somewhat unsteady” and had staggered once at the beach, but attributed that to the fact that she was “a polio victim and wore an instep” and said it was not due to the fact “that she had had plenty to drink.”
Defendants Oliveira and Fuchs were acquitted.
R.L.H. 1955, § 218-1, reads as follows: “Attempt. An attempt to commit an offense is some act done towards committing and in part execution of the intent to commit the same — for example, putting poison in the way of a person, with intent thereby to murder him.”