Goldmann, Leonard and Mountain. The opinion of the court was delivered by Leonard, J.A.D.
The Camden County grand jury returned two indictments against defendant and two co-defendants, Milton and Sebastian, the first charging them with assault with intent to commit sodomy (N.J.S.A. 2A:90-2), and the second with attempt to commit sodomy (N.J.S.A. 2A:143-1 and 2A:85-5). Defendant and Sebastian were tried together, Milton not being within the jurisdiction. The jury found Sebastian guilty on both charges, but defendant guilty only of assault with intent to commit sodomy. The trial judge sentenced defendant to a 5-7 year State Prison term. This appeal followed.
Defendant first contends that the two verdicts returned as to him were inconsistent; that having been acquitted on the attempt charge, he was entitled to an acquittal on the assault charge. He argues that the two offenses constitute but one crime.
An assault has been defined as "an attempt or offer with unlawful force or violence to do a corporal hurt or physical injury to another," State v. Staw , 97 N.J.L. 349, 350 (E. & A. 1922), or "force unlawfully directed toward the person of another, under such circumstances as create a well-founded fear of imminent peril, coupled with an apparent present ability to execute the attempt if not prevented." Black's Law Dictionary (4th ed. 1951). By contrast, an attempt to commit a crime is "an act done with intent to commit it beyond mere preparation but falling short of its actual commission." State v. O'Leary , 31 N.J. Super. 411, 412, 417 (App. Div. 1954).
However, these classic definitions do not aid us in resolving the instant question: Are the words "attempt to commit sodomy," in their ordinary meaning, the exact equivalent of the words "assault with intent to commit
sodomy"? We think not. Although an assault with intent to commit a particular crime is, in general, the same as an attempt to commit that crime,*fn1 the two are not identical. The assault charge requires a greater degree of proximity to completion of the offense. Perkins on Criminal Law (1957), C. 6, § 3B, states that
The law of assault, crystallizing at a much earlier day than the law of criminal attempt in general, is much more literal in its requirement of "dangerous proximity to success" (actual or apparent) than is the law in regard to an attempt to commit an offense other than battery.
It follows that an assault with intent to commit a certain crime generally includes an attempt to commit that crime, but an attempt to commit the crime does not include an assault with intent to commit it. * * * [at 500-501]
In State v. Hetzel , 159 Ohio St. 350, 112 N.E. 2d 369 (Sup. Ct. 1953), the court held that there may be an attempt to commit rape without an assault with intent to commit that crime. The court, in distinguishing the two offenses, noted that
The distinction may be thus defined: An assault is an act done toward the commission of a battery; it must precede the battery, but it does so immediately. The next movement would, at least at all appearance, complete the battery. While an act constituting an attempt to commit a felony may be more remote * * * "the overt act done in the attempt to commit an offense need not be the last proximate act prior to the consummation of the felony intended to be perpetrated." [112 N.E. 2d at 370].
See also People v. Welsh , 7 Cal. 2d 209, 60 P. 2d 124 (Sup. Ct. 1936). An example of the "proximity to success" theory is found when ...