concurring in the result.
While I agree with the Court’s reversal of Luke’s conviction, I cannot join in the Court’s analysis in Parts C and D of the opinion.
The Court properly determines the crimes of attempted first degree murder by torture and attempted second degree murder by torture do not exist in Idaho because, although intent to kill is not a necessary element of first or second degree murder by torture, it is a necessary element of the crime of attempt. However, after making this determination, the Court then says that, despite the fact attempted second degree murder by tor-toe is not a crime in Idaho, Luke could still be convicted of attempted second degree murder by torture as long as the jury made the requisite finding that Luke intended to kill the victim. The opinion suggests that jury instructions can create a crime where *302one would otherwise not exist and cite State v. Pratt, 125 Idaho 546, 873 P.2d 800 (1993) for that proposition.
In Pratt, the defendant argued he was improperly convicted of attempted first degree murder because the only type of attempted first degree murder he could have been convicted of was attempted felony murder. The Court agreed Pratt could not have been convicted of attempted felony murder because that is not a crime in Idaho. The Court did not say Pratt could have been convicted of attempted felony murder if the State had made the requisite showing of intent. Rather, the Court stated:
From the jury’s verdict on Count XVI, we cannot discern which theory the jury agreed upon to convict Pratt of the attempted first degree murder of Deputy Steve Barbieri. The jury could have based its verdict upon Barbieri being a law enforcement officer or upon the attempt occurring during the commission of certain felonies. Since we cannot discern the jury’s theory from the record, we vacate Pratt’s conviction and sentence ... regarding attempted first degree murder of Deputy Steve Barbieri.
Pratt, 125 Idaho at 558, 873 P.2d at 812. In the context of the Pratt case, a specific finding by the jury that Pratt intended to kill the officer would have supported Pratt’s conviction of attempted first degree murder, but only because it would have provided an alternate basis for Pratt’s conviction (i.e. attempted first degree murder of a law enforcement officer), not because it would have somehow allowed for Pratt’s conviction of attempted felony murder. Therefore, Pratt does not support the proposition that a specific finding of attempt will support a conviction for a crime that does not otherwise exist. Instead, the only way a specific finding of intent to kill would save Luke’s conviction is if he were properly charged with attempted second degree murder on some other theory besides murder by torture.
In order for Luke to have been properly convicted of attempted second degree murder on some other theory besides murder by torture, the charge must have been contained within the information charging Luke with attempted murder. A plain reading of the amended information filed against Luke demonstrates the information was insufficient to charge him with anything but attempted first or second degree murder by torture. This Court has previously held an information is sufficient if it contains the elements of the offense charged, fairly informs the defendant of the charges against him, and enables him to plead an acquittal or conviction in any future prosecution for the same offense. See State v. Windsor, 110 Idaho 410, 417, 716 P.2d 1182, 1189 (1985). In this case, the information only put Luke on notice he was being charged with attempted murder by torture, either in the first or second degree; crimes that do not exist in Idaho. It did not put him on notice he could be convicted of second degree murder on some other theory of the case. It is, therefore, unnecessary to examine the jury instructions for an instruction requiring the jury to find Luke acted with the specific intent to kill because, even had such an instruction been given, the fatal defects in the amended information would still have required the reversal of Luke’s conviction.
Justice SILAK concurs.