Opinion of the Court
Kilday, Judge:
The accused herein, Thomas and McClellan, were tried in common by general court-martial. Separate charges against the pair alleged the offenses of conspiracy to commit rape, rape, and lewd and lascivious conduct, in violation of Articles 81, 120, and 134, Uniform Code of Military Justice, 10 USC §§ 881, S20, and 934, respectively. Upon arraignment, both men entered pleas of not guilty. Each was acquitted of rape, but the court-martial found them guilty of attempted rape, contrary to Article 80 of the Uniform Code, 10 USC § 880, and likewise convicted them of the other two charges upon which they were brought to trial. Both received identical sentences to dishonorable discharge, confinement at hard labor for three years, forfeiture of all pay and allowances for a- like period, and reduction to the grade of airman recruit.
Thereafter, the findings and sentences adjudged by the trial court were approved by the officer exercising general court-martial jurisdiction. The board of review, however, set aside the findings of guilty of attempted rape and conspiracy as to both accused. It approved a modified finding of lewd and lascivious conduct as to each and reassessed the punishment, reducing the sentences of the pair to bad-conduct discharge, confinement at hard labor for five months, total forfeitures, and reduction. The case is before this Court on the following questions certified to us by the Acting The Judge Advocate General of the Navy in accordance with Article 67(b)(2), Uniform Code of Military Justice, 10 tJSC § 867:
“I. Was the Board of Review correct in setting aside, with respect to both accused, the findings of guilty of Charge I, attempted rape?
“II. Was the Board of Review correct in setting aside, with respect to [280]*280both accused, the findings of guilty of the Additional Charge, conspiracy to commit rape?”
The evidence adduced at the trial presents a sordid and revolting picture which need not be discussed in detail other than as necessary to decide the certified issues. In brief, both these young accused — Thomas being twenty years of age, and McClellan only nineteen, at the time of the instant offenses —started their fateful evening on a “bar hopping” spree. They were accompanied by an eighteen-year-old companion, Abruzzese, who, like both accused, held the grade of airman in the Navy. The latter was a co-actor in these offenses, but was granted immunity from prosecution for his criminality in the incidents, and testified as a witness for the Government.
After several stops the trio entered a tavern known as “Taylor’s Place” where McClellan began dancing with a girl. Almost at once she collapsed in McClellan’s arms. Thereafter, he, with his two companions, volunteered to take her home. They placed the apparently unconscious female in McClellan’s ear and left. Abruzzese was seated beside McClellan, who drove; Thomas was in the left rear seat next to the girl. Before they had proceeded very far McClellan, in frank, expressive language, suggested that this was a good chance for sexual intercourse as apparently this woman was just drunk and would never know the difference. Each of the three subsequently did or attempted to consummate this act and then started their return to town. The three became concerned as the woman had not regained consciousness.
In the meantime they dropped Abruz-zese off at the USO. The accused, unable to find the female’s home and becoming more concerned about her condition, stopped at a service station seeking help. The attendant called the police who, upon arriving at the service station, examined the girl and determined she was dead. An ambulance was called and she was taken to a hospital for further examination. An autopsy, later performed, revealed that she apparently died of “acute interstitial myocarditis.” In general terms this is a weakening of the heart muscles with edema and inflammation which occurs more in young people without its presence being suspected. It was the general undisputed opinion that her death probably occurred at the time she collapsed on the dance floor at Taylor’s Place or very shortly thereafter. Apparently, in deaths of this type, rigor mortis does not usually begin for some time and as a result the accused were unaware of the fact she was dead.
The chief witness for the prosecution was the co-actor Abruzzese who, as we have noted, had been granted immunity. He implicated himself and both accused in his testimony. A written statement by McClellan concerning the alleged offenses was introduced through an agent of the Office of Naval Intelligence, a witness for the prosecution. The accused Thomas discussed the alleged incident with this same Office of Naval Intelligence agent, but no statement by Thomas was introduced into evidence. Numerous other witnesses testified, including medical experts, and the record of trial and exhibits in this ease are voluminous. However, as the board of review stated, no factual dispute exists as to the death of the female involved and the cause thereof. It is clear, as that appellate body concluded, the victim was dead at the time she was removed from the tavern or relatively shortly thereafter, and the prosecution adduced no convincing evidence that she was alive at the time the offenses were committed. Indeed, on the merits trial counsel argued there could be no question but that the accused were guilty of attempted rape, “because the evidence shows that they would be guilty of rape if it wasn’t for the fact that the government failed in its proof, perhaps, that she was alive at the time of the intercourse.” Neither —at least as we need be concerned, since we deal here only with convictions for conspiracy and attempt, and not with the substantive offense of rape itself — can there be any real controversy regarding the acts done by Abruzzese and the two accused.
• Despite the fact that defense counsél at trial vigorously urged to ■ the law [281]*281officer that the offenses of attempt and conspiracy could not be found validly if the victim’s death occurred prior to the commission of the alleged acts, the law officer ruled otherwise. He instructed the court that to find the accused guilty of rape, or of assault, assault and battery, assault with intent to commit rape, or indecent assault as lesser included offenses thereto, it must be shown beyond a reasonable doubt that the victim was alive at the time of the alleged acts. Otherwise, he admonished the court members, the accused must be acquitted of those offenses. The law officer then continued, and instructed the court on the elements of attempt as an included lesser crime to rape. However, unlike the instructions given as to rape and the other lesser offenses previously mentioned, the_ law__gificex jdid-not instruct that-being alive was essential to a finding.. of .attempt.- That' clearly drawn distinction is illuminated by the following colloquy which subsequently ensued between a member of the court and the law officer:
“Cdr. Carpenter: I don’t remember you pointing this out in your instructions — you said the woman must be alive if raped but you didn’t say whether she had to be alive for attempted rape, although I think you implied it.
“LO: Yes, sir. There is no requirement under the instructions which I have given you that there be a finding she be alive before the accused may be convicted of attempted rape. However, before you can make a finding of guilty of rape or the other lesser included offenses, not including attempted rape, you must so find as a matter of fact that she was alive at that time.”
Likewise, the court-martial was not required to find that the alleged victim was alive in order to find the accused guilty of conspiracy.
Before the board of review, appellate defense counsel contended that the law officer erred in his instructions to the court on the attempt and conspiracy offenses. In support of that position, the defense argued that where circumstances beyond the accused’s control make it legally impossible to commit a crime, as distinguished from factual impossibility to do so, there can be no attempt nor can there be a conspiracy to commit the substantive offense.
In substance, then, the question thus presented to the board of review was, whether the law officer was correct in his instructions to the court-martial that a finding the victim was alive was not essential to a conviction for attempt as a lesser included offense of rape. As noted above, the law officer had replied to the question of a court member that there was no requirement under the instructions given that there be a finding that she be alive before the accused could be convicted of attempted rape.
The board faced up squarely to the issue, stating:
“Factually, the evidence adduced clearly indicates an attempt made by the accused to effect sexual relations with the victim without her consent. Whether the act was ever consummated is a matter of conjecture. However, the question the board must resolve goes to the legal possibility of such offense as attempt to rape being committed upon a woman, whom the evidence strongly and clearly indicates, was not alive at the time of the attempt.”
The board of review held that an attempt to commit a crime must be directed to an object on which it is possible to commit the crime. Reasoning that a corpse is not a person, the board of review determined that the law officer erred in his instruction that there was no requirement that the victim be alive before the accused could be convicted of attempted rape. Thus, the board stated, “If the consummation was not an offense, the attempt herein was not an offense,” and concluded, “Legally under the facts and law before us the offense of rape and the lesser included offenses including attempts were impossible of commission.” Similarly, it was found that the accused could not be found guilty of conspiring to do that which if effected or consummated would not be an offense. Accordingly, the [282]*282board of review set aside both accused’s convictions for attempt to commit rape and for conspiracy to commit rape.
It is this action of the board which gives rise to the certified questions.
The rules of law applying to attempts and those applying to conspiracies are very closely related. Our principal discussion shall be confined to attempts. However, we shall, in essence, treat of the two certified issues together.
After exhaustive reading in the area of criminal attempts as they have been treated in the civilian courts, we appreciate the validity of the total frustration evidenced by the following quotations :
“. . . It has been truly said by a philosophical writer that ‘the subject of criminal attempt, though it presses itself upon the attention wherever we walk through the fields of the criminal law, is very obscure in the books, and apparently not well understood either by the textwriters or the Judges.’ And it may be added that it is more intricate and difficult of comprehension than any other branch of the criminal law. Each case must therefore be determined upon its own facts, in the light of certain principles which appear to be well settled. The difficulty generally is in determining the proximity of the act in question to the offense in contemplation.” [Hicks v Commonwealth, 86 Va 223, 9 SE 1024 (1889).]
. . It is useless to undertake to reconcile the authorities on the subject of what constitutes an attempt, or what is an overt act, within the meaning of the section in question. It is equally impossible for us to undertake to lay down any rule on this subject which would serve as a guide in all future cases. To a very great extent each and every case must stand on its own facts. The text-books and decisions are noted for their lack of harmony. It is impossible to decide any case on this subject without doing violence to some authority or some adjudicated case.” [Stokes v State, 92 Miss 415, 46 So 627 (1908).]
See also 1 Bishop, A Treatise on Criminal Law, 9th ed, § 725, at page 517, where it was said as to attempts:
“The subject of this chapter is alike intricate and important. The reports are full of cases upon it, yet it is but imperfectly understood by the courts.”
In all candor we must confess that we claim no particular expertise as to the question of attempts as they have troubled our brothers on the bench of tribunals in the civilian community. We profess no mastery of the subject and do not purport to be more competent than other judges to resolve the conflicts in the civilian authorities which trouble them. However, as shall later be developed, we do not consider it necessary to evaluate the civilian decisions ourselves, nor to take a stand with or opposed to any one or group thereof. Nevertheless, as a backdrop against which to consider the problem, we deem it appropriate to explore the intricacies of the civilian holdings in the area.
As might be anticipated, a subject so intriguing has frequently received the attention of legal scholars as reflected by numerous articles and papers appearing in law school publications. Among others we have read the following with interest and profit:
“Contemporary Problems of Criminal Attempts” by Paul Kichyun Ryu, Professor of Law, Seoul National University in Korea, 32 New York University Law Review, page 1170 (1957).
“The Effect of Impossibility on Criminal Attempts” by John S. Stra-horn, Jr., 78 University of Pennsylvania Law Review, page 962 (1930).
“Criminal Attempts — The Rise and Fall of an Abstraction” by Honorable Thurman W. Arnold, Dean of University of West Virginia Law School and visiting Professor of Law at Yale (later Associate Justice, United States Court of Appeals for the District of Columbia), 40 Yale Law Journal, page 53 (1930).
“Criminal Attempts” by Francis Bowes Sayre, Professor of Law, Har[283]*283vard Law School, 41 Harvard Law Eeview, page 821 (1928).
“Criminal and Non-Criminal Attempts” by John W. Curran, Professor of Law, DePaul College of Law, 19 Georgetown Law Journal, Part I, page 185; Part II, page 316 (1931).
“Criminal Attempts at Common Law” by Edwin E. Keedy, Professor of Law Emeritus, University of Pennsylvania, 102 University of Pennsylvania Law Eeview, page 464 (1954).
Text writers have covered the subject extensively, and we refer the interested reader to the following:
1 Bishop, A Treatise on Criminal Law, supra, §§ 411, 729, 736, 742, 745, and 747.
1 Burdick, The Law of Crime, § 143 (1946).
Williams, Criminal Law, 2d ed, § 11, page 17; § 205 et seq, page 633.
Perkins, Criminal Law, pages 486, 488, and 494 (1957).
1 Wharton, Criminal Law and Procedure, §§71 and 78 (1957).
In practically all of the foregoing articles and texts, the specific question involved in this case—impossibility of completion of the substantive crime— is discussed at very considerable length. The two reasons for “impossibility” are treated in this connection: (1) If the intended act is not criminal, there can be no criminal liability for an attempt to commit the act. This is sometimes described as a “legal impossibility.” (2) If the intended substantive crime is impossible of accomplishment because of some physical impossibility unknown to the accused, the elements of a criminal attempt are present. This is sometimes described as “impossibility in fact.”
The authorities seem to be in fair accord that (1), above, is not punishable as an attempt. There is some considerable conflict of authority as to whether (2), above, is punishable as an attempt, but the preponderance seems to be that such instances do constitute attempts. What is abundantly clear, however, is that it is most difficult to classify any particular state of facts as positively coming within one of these categories to the exclusion of the other.
Practically all writers on this subject, whether in law journal articles, texts, or judicial opinions, cite and discuss the same relatively limited number of decisions. These decisions are generally placed in the two following categories :1
1. “Legal impossibility” in which attempt convictions have been set aside on the ground that it was legally impossible for the accused to have committed the crime contemplated. These are as follows:
(a) A person accepting goods which he believed to have been stolen, but which were not then “stolen” goods, was not guilty of an attempt to receive stolen goods. People v Jaffe, 185 NY 497, 78 NE 169 (1906).
(b) An accused who offered a bribe to a person believed to be a juror, but who was not a juror, could not be said to have attempted to bribe a juror. State v Taylor, 345 Mo 325, 133 SW2d 336 (1939).
(c) An official who contracted a debt which was unauthorized and a nullity, but which he believed to be valid, could not be convicted of an attempt to illegally contract a valid debt. Marley v State, 58 NJL 207, 33 Atl 208 (1895).
(d) A hunter who shot a stuffed deer believing it to be alive had not attempted to take a deer out of season. State v Guffey, 262 SW2d 152 (Mo) (1953).
(e) It is not an attempt to commit subornation of perjury where the false testimony solicited, if [284]*284given, would have been immaterial to the case at hand and hence not perjurious. People v Teal, 196 NY 372, 89 NE 1086 (1909).
2. Instances in which a claim of impossibility has been rejected and convictions sustained, are included below. Apparently these can all be classified as “impossibility in fact.” These decisions are:
(a) It is now uniformly held that one is guilty if he attempts to steal from an empty pocket. Commonwealth v McDonald, 5 Cushing 365 (Mass) (1850). People v Jones, 46 Mich 441, 9 NW 486 (1881). People v Moran, 123 NY 254, 25 NE 412 (1890). People v Fiegelman, 33 Cal App 2d 100, 91 P2d 156 (1937). The same is true as to an empty receptacle, Clark v State, 86 Tenn 511, 8 SW 145 (1888); and an empty house, State v Utley, 82 NC 556 (1880). The rule is applied whether the attempt is to commit burglary, State v McCarthy, 115 Kan 583, 224 Pac 44 (1924); People v Dogoda, 9 Ill 2d 198, 137 NE2d 386 (1956); robbery, Commonwealth v Crow, 303 Pa 91, 154 Atl 283 (1931); State v Scarlett, 291 SW2d 138 (Mo) (1956); extortion, People v Fratiano, 132 Cal App 2d 610, 282 P2d 1002 (1955); or obtaining by false pretenses, People v Arberry, 13 Cal App 749, 114 Pac 411 (1910).
(b) One can attempt to possess narcotics, even though accused obtained possession of talcum believing it to be narcotics. People v Siu, 126 Cal App 2d 41, 271 P2d 575 (1954). And, one can be convicted of attempted use of a narcotic drug even though there is a reasonable doubt as to whether the substance was a narcotic. United States v Dominguez, 7 USCMA 485, 22 CMR 275.
(c) An accused may be guilty of attempted murder who, suspecting that a policeman on the roof was spying upon him through a hole, but ignorant that the policeman was then upon another part of the roof, fired at the hole with intent to kill. People v Lee Kong, 95 Cal 666, 30 Pac 800 (1892). It is attempted murder to shoot into the intended victim’s bed believing he is there asleep when in fact he is some place else. United States v Cruz-Gerena, CM 228955, 49 BR 245 (1943); State v Mitchell, 173 Mo 633, 71 SW 175 (1902). An accused is not absolved from the charge of attempted murder when he points an unloaded gun at his wife’s head and pulls the trigger, if he actually thought at the time that it was loaded. State v Damms, 9 Wis 2d 183, 100 NW2d 592 (1960).
(d)In attempted abortion cases an accused may be guilty in the absence of proof that the woman was pregnant. Commonwealth v Tibbetts, 157 Mass 519, 32 NE 910 (1893); People v Huff, 339 Ill 328, 171 NE 261 (1930); United States v Woodard, 17 CMR 813 (1954). Where the statute refers to “any woman,” it is immaterial whether she was pregnant or not if the defendant believed she was. Peckham v United States, 226 F2d 34 (CA DC Cir) (1955).
It must be noted, however, that efforts to arrange these various authorities into some sort of classification have met with little real or satisfactory success. For instance, in 78 Pennsylvania Law Review, supra, at pages 962-63, and 997, we read:
“Three kinds of impossibility have always been distinguished. The first is an intrinsic impossibility, arising when the means used by the actor are ineffectual in themselves. [shooting with defective gun]. The second kind is an extrinsic impossibility. . . . [shooting at a log believing it to be a person]. The third kind is a legal impossibility arising because of the noncriminality of the result desired by the actor. . . . [attempted rape by one too young to be convicted of rape].
“Intrinsic impossibility excuses only when it prevents a substantial impairment of interest, extrinsic [285]*285when it prevents any impairment and legal when it negatives the existence of the interest set up.”
That writer noted, at page 963, that these distinctions were unworkable:
“This tri-partite division of impossibility into intrinsic, extrinsic, and legal, while covering the field entirely, is more a theoretical than a practical one.”
These categories and classifications have been further criticized. Among others, are the following:
. . There are no degrees of impossibility and no sound basis for distinguishing among the conditions necessary for commission of the intended harm.” [Hall, General Principles of Criminal Law, 2d ed, page 589 (I960).]
“The distinctions . . . are ingenious, but . . . they lead us either to absurd results or else to no results. . . .” [40 Yale Law Journal, supra, at page 71.]
So, too, Professor Sayre indicates that regardless of artificial classifications, one stabbing a corpse thinking it a live person should be liable for attempted murder. Thus he states in a footnote, at 41 Harvard Law Review, supra, page 853:
. • [W]here one comes upon his enemy lying apparently asleep and stabs him to the heart, and it is later shown that the victim was dead before the defendant stabbed him, although the defendant could not of course be convicted for murder, he should be held liable for an attempt to kill if his belief that the victim was still living was under all the circumstances a natural and reasonable one.”
The lack of logic between some of the holdings, supra; the inherent difficulty in assigning a given set of facts to a proper classification; the criticism of existing positions in this area; and, most importantly, the denial of true and substantial justice by these artificial holdings have led, quite naturally, to proposals for reform in the civilian legal concepts of criminal attempts.
In addition to a progressive and modern view now evident in some judicial decisions and writings, The American Law Institute in its proposal of a “Model Penal Code” defines Criminal Attempts, in Article 5.01, as follows:
“(1) Definition of attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:
(a) purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be; or
(b) when causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing or with the belief that it will cause such result, without further conduct on his part; or
(c) purposely does or omits to do anything which, under the circumstances as he believes them to be, is a substantial step in a course of conduct planned to culminate in his commission of the crime.”
The import of that suggested statute is made clear in Tentative Draft No. 10 of the Model Penal Code of The American Law Institute, supra, at page 25, where it is stated:
“. . . It should suffice, therefore, to indicate at this stage what we deem to be the major results of the draft. They are:
(a) to extend the criminality of attempts by sweeping aside the defense of impossibility (including the distinction between so-called factual and legal impossibility) and by drawing the line between attempt and non-criminal preparation further away from the final act; the crime becomes essentially one of criminal purpose implemented by an overt act strongly corroborative of such purpose; . .
After having given this entire question a great deal more than casual attention and study, we are forced to the conclusion that the law of attempts in [286]*286military jurisprudence has tended toward the advanced and modern position, which position will be achieved for civilian jurisprudence if The American Law Institute is completely successful in its advocacy of this portion of the Model Penal Code.
Because of the legal acumen of the law officer of this general court-martial, the trial was conducted in accordance with this approach. We conclude that his instructions to the court-martial with reference to the offense of rape, the lesser included offenses thereto, including attempt to rape, and conspiracy, furnished correct advice on impossibility insofar as the same is affected by the death of the victim.
In its effort to follow civilian authorities into the intricacies and artificial distinctions they draw in the field of criminal attempts, however, the board of review fell into error. And, it is error of serious proportions which, if affirmed, would lead military jurisprudence into the morass of confusion as to criminal attempts in which civilian jurisprudence finds itself immobilized, and from which heroic efforts are being made to extricate it. We have been unable to find, nor has there been called to our attention, any instance where the issue of impossibility, factual or legal, has been an impediment to conviction of criminal attempt in the military system. The adoption of Article 80, Uniform Code of Military Justice, supra, has served to make this abundantly clear and to give it the permanency of statutory law.
Prior to the adoption of the Uniform Code of Military Justice, there was neither an Article of War nor an Article for the Government of the Navy specifically defining attempts under a separate punitive article. See Hearings before House Armed Services Committee, 81st Congress, 1st Session, on H. R. 2498, page 1224. Attempts were then tried under the general articles, except in those instances in which attempts to commit certain offenses were specifically provided in the Article proscribing the substantive offense itself. Under the Code today there are still isolated instances where an attempt is proscribed together with the substantive offense itself.2 However, attempts in general are now proscribed under a separate punitive article.3 See also paragraph 159, Manual for Courts-Martial, United States, 1951.
That statute, Article 80 of the Code, supra, defines attempts as follows:
“(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 language seems clear. The ele-' ments of the offense denounced are: (1) an overt act, (2) specific intent, (3) more than mere preparation, (4) tending to effect the commission of the offense, and (5) failure to effect its commission.4
There are no other elements to the offense. Boards of review and this Court possess no warrant to limit the language chosen by the Congress in the definition. The language is clear and unambiguous and is to be applied not interpreted. United States v Davis, 12 USCMA 576, 578, 31 CMR 162.
In addition to the plain language of Article 80, the history of the adoption of the Uniform Code of Military Justice and the legislative history of this Article clearly sustain the position we take herein. As many opinions of this Court have pointed out, the Uniform. [287]*287Code was adopted by Congress only after thorough and detailed study and consideration by the cognizant committees of both Houses of the Congress, assisted by a special committee of legal scholars designated by the Secretary of Defense to study military justice and its administration. On prior occasions and in different settings this Court has referred to and quoted at considerable length from the testimony before the committees of the Congress indicating the thorough and detailed knowledge possessed by the members of that special committee. It would be the height of folly on our part to conclude that such a committee, or the Congress, decided to include a specific article on attempts for the purpose of adopting a civilian doctrine which has been shown to be a source of utter frustration for the courts, text writers and law professors. Certainly Article 80 does not represent an intent to bring into the body of military jurisprudence a provision “more intricate and difficult of comprehension than any other branch of the criminal law”; nor to adopt a rule of decision under which it would be “impossible to decide any case on this subject without doing violence to some authority or some adjudicated case.” We must reject the possibility of adopting for the military an antiquated and discredited rule involving such nebulous distinctions as “factual and legal impossibility.” Nor can we espouse formulae for the solution of this question which have been universally condemned as unsound, unworkable, absurd, or nonsense.
A comparison of the Manual for Courts-Martial, U. S. Army, 1949, with the Manual for Courts-Martial, United States, 1951, indicates that the drafters of the Manual understood exactly what Congress had accomplished by the adoption of Article 80, supra. Paragraph 183c of the 1949 Manual5 includes the following on the subject of attempts, then cognizable under the general article, Article of War 96:
“An attempt to commit a crime is an act done with intent to commit that particular crime, and forming part of a series of acts which will apparently, if not interrupted by circumstances independent of the will of the actor, result in its actual commission.
“An intent to commit a crime not accompanied by an overt act to carry out the intent does not constitute an attempt. For example, a purchase of matches with intent to burn a haystack is not an attempt. But it is an attempt when the haystack is actually set on-fire, even though it may be immediately put out by rain, blown out by the wind, or otherwise extinguished, with only immaterial damage to the hay. 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.
“Soliciting another to commit a crime is not an attempt, nor is mere preparation to do a criminal act.”
The present Manual, however, is very materially different. It sets forth the provisions of Article 80, substitutes the defective gun and empty pocket examples for the shooting at a log illustration used in previous Manuals, and makes material and most significant additions which will be discussed hereinafter. Paragraph 159, Manual for Courts-Martial, 1951, supra, reads:
“An attempt to commit an offense is an act or aets done with the specific intent to commit the particular offense which, except for the interference of some cause preventing the carrying out of the intent, apparently would result in the actual commission of the offense.
“To constitute an attempt there must be a specific intent to commit the particular offense accompanied by an overt act which directly tends to accomplish the unlawful purpose. [288]*288The overt act must be more than mere preparation to commit the offense. Preparation consists in devising or arranging the means or measures necessary for the commission of the offense. The overt act required goes beyond preparatory steps and is a direct movement towards the commission of the offense. However, the overt act need not be the last proximate act to the consummation of the offense attempted to be perpetrated. For example, a purchase of matches with the intent to burn a haystack is not an attempt to commit arson, but it is an attempt to commit arson to apply a burning match to a haystack, even though the match may be immediately put out by the rain, blown out by the wind, or otherwise extinguished.
“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 accused miscalculated 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.”
In addition to the substitution of examples, to which we have adverted, the following language appears in a Manual for the first time:
“. . . 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 accused miscalculated his opportunity to commit the offense intended.” [Emphasis supplied.]
It must be noted as a matter of the most significant importance that the 1951 Manual completely changes the first paragraph of the discussion as the same appeared in prior Manuals. Eliminated are the portions requiring a series of acts and mention of interruption “by circumstances independent of the will of the actor.” Therefore, the 1951 Manual is in accord with Article 80, supra, and our analysis, previously set forth herein, of the elements of the crime denounced thereby.
Providing illumination for our viewpoint and further explaining the Manual provisions is the following quoted from the Legal and Legislative Basis, Manual for Courts-Martial, United States, 1951, pages 248-249:
‘‘Attempts. — While Article 80 provides for the specific substantive offense of an ‘attempt,’ certain exceptions to charging an attempt as a violation of this article are found in Articles 85, 94, 100, 104, and 128 (that is, Desertion, Mutiny or Sedition, Subordinate compelling surrender, Aiding the enemy, and Assault). These articles specifically include the offense of an attempt to commit the principal offenses which they denounce. The provision of Article 80 that ‘Any person subject to this code may be convicted of an attempt to commit an offense although it appears on the trial that the offense was consummated’ is in accord with the judicial decisions of the Army and the Air Force, but is different from naval practice which has been that ‘one proven actually to have committed an offense cannot be found guilty of an attempt to do so’ (Sec. 43 NC&B). Subject to this exception the provisions of this article conform to the concepts of this offense which are presently held by the armed forces and expressed in their judicial decisions. Accordingly an accused is guilty of an attempt under the Uniform Code if he has committed aets requisite to constitute an attempt even though of his own accord he desisted before the consummation of the intended offense. (See F. B. Sayre, Criminal Attempts, (1927-[289]*28928) 41 Harvard Law Review 821, 847.) It should be noted that soliciting another to commit an offense does not constitute an attempt.”
Note should be taken of the statement that the article’s provisions “conform to the concepts of this offense which are presently held by the armed forces and expressed in their judicial decisions.” Our attention has been called to no armed force judicial decision, in existence prior to the Uniform Code of Military Justice, holding that impossibility, either factual or legal, will vitiate a conviction of criminal attempt. On the contrary, we note that in United States v Cruz-Gerena, CM 228955, 49 BR 245 (1943), the accused was charged with an attempt to murder a sergeant of his organization. He visited the tent where the sergeant customarily slept and learned the exact location of the sergeant’s cot. After midnight the accused went to the tent and fired six or seven shots through the tent flap and into the sergeant’s cot. Neither the sergeant nor anyone else was in the tent at the time. A board of review in the office of The Judge Advocate General of the Army cited a number of the cases and authorities to which we have referred in this opinion, including 78 University of Pennsylvania Law Review, supra; People v Lee Kong, 95 Cal 666, 30 Pac 800 (1892); and State v Mitchell, 173 Mo 633, 71 SW 175 (1902), and affirmed the conviction of attempted murder. Of course, that 1943 decision of the board of review was prior to the adoption of the Uniform Code of Military Justice.
The Legal and Legislative Basis, supra, refers to the article by Professor Francis Bowes Sayre in 41 Harvard Law Review, which we have mentioned earlier. This is a learned discourse on the subject of criminal attempts and its inclusion in the Legal and Legislative Basis is significant. Of all the law journal articles we have cited, Professor Sayre’s article seems strongest on the elimination of impossibility as a bar to prosecutions for attempts. We have previously noted herein Sayre’s statement that one who stabs a corpse thinking it a live person should be liable for attempted murder. In addition, the conclusions he sets forth in his summary comport with the requirements of Article 80 and the law of criminal attempts as known to military jurisprudence. We quote from his summary as follows:
“(4) There can be no criminal liability for an attempt without proof of a specific intent to effect the particular criminal consequence which constitutes the crime attempted. In other words, at least one of the defendant’s objectives (of which there may be several) must constitute (whether the defendant knows the law or not) the crime attempted.
“(5) For convenience of discussion three important groups of attempt cases may be separately considered, i.e.,
I. Where the consummation of the crime was prevented by the interruption of the defendant from completing all his intended acts, or by his voluntary withdrawal;
II. Where the consummation of the crime was prevented after the completion of the defendant’s in-, tended acts by the interposition or operation of extraneous forces unexpected by the defendant;
III. Where the consummation of the crime was prevented by some mistake of fact on the part of the defendant.
“(6) In cases falling within the first of these groups, the defendant’s criminality will depend upon whether or not his conduct has passed beyond mere preparation into the field of indictable attempts; and this in turn will depend upon the gravity of the crime and the danger to be apprehended from the defendant’s conduct.
“(7) In cases falling within the second group, the defendant may usually be convicted.
“(8) In cases falling within the third group, the defendant may usually be convicted if a reasonable man in the same circumstances as the defendant might expect the intended criminal consequence to result from the defendant’s acts.
[290]*290“(9) The physical impossibility of accomplishing the crime will not be a bar to conviction.
“(11) The crime of solicitation should be kept distinct from that of attempt.” [Emphasis supplied.] [41 Harvard Law Review at pages 858-59.]
The provisions of Article 80; the language of the current Manual for Courts-Martial; the discussion from the Legal and Legislative Basis; and Professor Sayre’s article and conclusions, when read together, impart a logical whole to the questions involved in the revolting facts of the transgression here before us, and bring this case within the proper legal construction of criminal attempts as the same are punishable under the Uniform Code of Military Justice.
Since the adoption of the Code, both boards of review and this Court have construed Article 80 in accordance with the conclusions we reach herein. In United States v Woodard, 17 CMR 813, a board of review wrote an exhaustive opinion on attempts. We have read the opinion of the board, dealing with abortion and the lesser included offense of attempted abortion, with considerable care. We find it to contain a clear and legally correct exposition of attempts as they exist in military law. In that case the board of reviéw posed the question:
. . Does the utter impossibility of the commission of the major offense charged vitiate any criminality in an attempt to commit it?” [At page 830.]
The board analyzed paragraph 159, Manual for Courts-Martial, United States, 1951, supra, and the decision in United States v Cruz-Gerena, supra, at considerable length and then answered the question as follows:
. . Viewed in the light of the rationale advanced in the Cruz-Gerena case the actual impossibility of completing a full miscarriage because of non-pregnancy does not prevent an attempt to cause such a miscarriage from possessing criminality. This is necessarily so because of the public’s right to protect the female’s person, which is implicit within the basic proscription against abortion, and morals, decency and hygienic standards have been infringed by the attempt to commit it. . . [17 CMR at pages 831-32,]
We endorse the foregoing language of the board of review as a correct statement of the law.
This Court, in construing Article 80 in another instance, came to conclusions which we regard as dispositive of the issues in this case. In United States v Dominguez, 7 USCMA 485, 22 CMR 275, the accused was convicted by general court-martial for attempted use of a narcotic drug. Before this Court the following instruction, given by the law officer to the court-martial, was assigned as error:
“ . . if you are satisfied beyond a reasonable doubt that the accused at the time and place alleged intended to use a habit forming narcotic drug and did in fact use a substance which he intended and believed to be a habit forming narcotic drug, you may find him guilty of attempting wrongfully to use a habit forming narcotic drug even though you may not be satisfied beyond a reasonable doubt that the substance which he used was in fact a habit forming narcotic drug.’ ”
We cited with approval, in the course of our opinion in that case, 14 Am Jur, Ci'iminal Law, § 69; and 22 CJS, Criminal Law, § 77, and unanimously overruled the assignment levelled at the foregoing instruction, stating:
“When the general rule is applied to the facts before us, it is at once apparent that the question of whether the accused attempted to use a narcotic drug does not at all depend upon the true nature of the substance which he used intravenously. It is clear that he intended to commit the crime of using a habit-forming drug, that he did an overt act toward its commission, that the crime was apparently possible of commission in that the substance used seemed apparently adaptable to that end, and [291]*291that the court-martial was entitled to have some doubts as to whether the white powder was a habit-forming narcotic drug.” [7 USCMA at page 487.]
We hold, therefore, in accordance with the foregoing authorities, that in this instance the fact that the female, upon whom these detestable acts were performed, was already dead at the time of their commission, is no bar to conviction for attempted rape.
However, for purposes of clarity, we should make mention of that portion of paragraph 159, Manual for Courts-Martial, supra, which reads:
“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.”
That provision has no reference to questions we have here discussed. Such language says no more than that if what an accused believed to be a substantive crime was actually no crime at all, he cannot be guilty of an attempt to commit such crime. That is, when the intended action, even if completed, is not an offense despite the fact accused believed otherwise, he cannot be held for a criminal attempt. Under those circumstances a substantive offense is nonexistent, and an accused’s acts, whether carried to fruition or not, constitute wholly lawful conduct. It is interesting to observe that the same situation will exist under the Model Penal Code. See Tentative Draft No. 10, supra, page 31, which states, in the commentary:
“Of course, it is still necessary that the result desired or intended by the actor constitute a crime. If, according to his beliefs as to facts and legal relationships, the result desired or intended is not a crime, the actor will not be guilty of an attempt even though he firmly believes that his goal is criminal.”
What we have said as to attempts applies in large measure to the charge and specification alleging conspiracy to commit rape. Under Article 81 of the Uniform Code, supra, a conspiracy consists of an agreement between two or more persons to commit an offense under the Code and the crime is complete if one or more of the conspirators does an overt act to effect the object of the conspiracy. All these phases of conspiracy are discussed fully in a recent opinion of this Court. See United States v Kidd, 13 USCMA 184, 32 CMR 184.
For the above stated reasons, we hold that the law officer did not err in the instructions given to the court-martial in connection with attempted rape and conspiracy to commit rape.
It is clear from this record, by the findings of the court-martial and the facts as sustained by the board of review, that each of these appellants was guilty of each element necessary to the crime of attempted rape. That is, each of the appellants did:
1. A certain overt act.
2. The act was done with the specific intent to commit the offense of rape; that is, each intended to have sexual intercourse with a female not his wife by force and without her consent.
3. The act amounted to more than mere preparation.
4. It apparently tended to effect the commission of the intended offense, even though
5. The intended offense failed of completion because, unknown to either appellant and as a matter beyond their control, their victim was already dead.
Likewise, all of the necessary elements of conspiracy to commit the offense of rape are present. That is:
1. Each of these accused and their co-actor Abruzzese mutually entered into an agreement to commit rape on the female alleged.
2. Thereafter, while the agreement continued in existence and while each of appellants remained a party thereto, each performed an overt act to effect the object of the agreement.
[292]*292All the elements of both attempted rape and conspiracy to commit rape are present and were returned by the members of the court-martial under correct standards set out in the law officer’s instructions. The board of review, therefore, erred in holding to the contrary.
The certified issues are answered in the negative, and the decision of the board of review is reversed. This case is returned to The Judge Advocate General of the Navy for action not inconsistent with this opinion.
Chief Judge Quinn concurs.