¶1CONCURRING OPINION
¶2Appellant, Penny Jo Fisher, was tried on an affidavit which charged that
“Penny Jo Fisher on or about the 24th day of July, A.D. 1971, was a convict confined in the Indiana Women’s Prison of said state, then and there situate at 401 North Randolph, duly committed to said prison for the crime of Prostitution, *24from the county of Marion, in said state, and did then and there, while so confined in said Indiana Women’s Prison, feloniously escape and break away from the prison, . . .”
¶3At her trial before the court sitting without a jury there was no evidence from which the court could have found that she actually escaped. There was, however, substantial evidence of probative value from which the court could have found (and we are required to assume [because of the result he reached] that he did find) that she was (1) a convict lawfully confined in the said prison and that (2) with intent to escape (3) she climbed over the inner fence, and was apprehended while still in the prison between the inner and the outer fences. Thus the evidence failed to prove all the elements of the crime of escape (IC 1971, 35-21-6-1) with which she was charged, but did prove all the elements of an attempted escape (IC 1971, 35-21-7-1) and the trial judge properly found her guilty of attempted escape and sentenced her accordingly. I therefore concur in the affirmance of the trial court’s judgment, but because we are bound by Supreme Court predecent, I cannot agree that failure to consummate the escape is an essential element of the crime of attempted escape.
¶4In Crump v. State (1972), 259 Ind. 358, 287 N.E.2d 342, 33 Ind. Dec. 1, defendant was charged with first degree arson and convicted of attempted arson. He made the contention that attempted arson was not a lesser included offense and relied on People v. Lardner (1921), 300 Ill. 264, 266, 133 N.E. 375, 376, in which the defendant was charged with larceny and convicted of an attempt to commit larceny. The conviction was reversed because, among other reasons:
“A failure to consummate the crime is as much an essential element of an attempt as the intent and the performance of an overt act toward its commission. . . .
“When an indictment charges an offense which includes within it a lesser offense, the defendant, though acquitted of the higher offense, may be convicted of the lesser; but that rule cannot be applied to an attempt defined by the statute, because an essential element of the attempt is a *25failure to consummate the crime. ... If the evidence for the people proved the defendant guilty of the crime of larceny, he could not be convicted of an attempt which failed.”
¶5In rejecting defendant’s contention in Crump, supra,the Indiana Supreme Court said:
. . If proof of an ineffective act is necessary to establish the_ ‘attempt,’ it would follow that attempted arson is not an included offense of first degree arson because the former crime embraces an element not found in the latter. Reasoning such as this was adopted in People v. Lardner (1921), 300 Ill. 264, 133 N.E. 375, wherein the court reversed a conviction for attempted larceny where the indictment charged the defendant with the crime of larceny. However, the opposite result was reached in People v. Baxter (1928), 245 Mich. 229, 222 N.W. 149, where the court expressly rejected the Illinois rule. We are of the opinion that the rule set forth in Baxteris more logical. It should make no difference whether the criminal conduct is successful or unsuccessful when determining an included offense. The conduct is the same in both cases; the actor’s intent is the ' same in both cases.
“In the case at bar, the indictment charged that the appellant ‘unlawfully, feloniously, wilfully and maliciously set fire to and burn(ed) a certain dwelling house . . .’ This charge was made pursuant to IC 1971, 35-16-1-1 (Ind. Ann Stat. § 10-301 [1956 Repl.]), which defines first degree arson. The evidence introduced at trial was sufficient to establish every element of the crime of first degree arson. The attempted arson statute embraces the same elements as are found in the first degree arson statute except for the element of actual burning. It follows that it would be impossible to commit arson without first having attempted it, and we conclude, therefore, that attempted arson is a lesser included offense.” 287 N.E.2d at 345, 33 Ind. Dec. at 5.
¶6While the language in Crump is not as explicit as one would like for the purposes of the case at bar it is clear that it did hold that failure to consummate arson was not an essential element of attempted arson. That holding is implicit in the statement that “[t]he attempted arson statute embraces the same elements as are found in the first degree arson statute *26except the element of actual burning.” To me that statement says that success is the one element which, when added to attempted arson, makes it first degree arson.
¶7The critical words of the two statutes are these:
. . but which for any reason does not result in such a setting of fire to or the burning of any such property . . . shall be guilty of attempted arson.” (IC 1971, 35-16-1-6.)
“. . . and such attempt meets with failure, shall be guilty of attempted escape. . . .” (IC 1971, 35-21-7-1.)
¶8I can see no significant difference in those words. If failure is an element of either crime, it is an element of both. Thus, when Crump holds that failure is not an element of the first, it thereby forbids us to say that it is an element of the second.
¶9Were we not bound by Crump I would agree that the statute clearly means that only when “such attempt meets with failure ... [can the defendant] be guilty of attempted escape.” Were I free to join in that reading of the plain wording of the statute I would then take the logical next step of recognizing the plain error inherent in finding defendant guilty of a crime with which she was not charged.
¶10In McQuire v. State (1875), 50 Ind. 284, 286, 287, the defendant had been found guilty by jury verdict of assault and battery with intent to commit rape on evidence which *27was not questioned as to sufficiency. It was held, however, that the verdict was contrary to law because “the indictment contains a valid charge for an assault and battery, but not a valid charge of the intent to commit the crime of rape”. In holding that the trial court erred in overruling the motion for new trial, the Supreme Court said:
“It is a fundamental principle of our system of criminal jurisprudence that a person charged by indictment with one offense cannot be found guilty of a different one. ... It would be a mockery to hold that such a verdict is not contrary to the principles of the law which governs the cause.”
¶11Note. — Reported at 294 N.E.2d 632.
¶12. In People v. Baxter (1928), 245 Mich. 229, 222 N.W. 149, relied on by the Indiana Supreme Court in Crump, the defendant was charged in separate counts with (1) bribery and (2) attempt to bribe and was convicted of the attempt to bribe.
“The prosecution was wise in laying the charge in two counts, for there was evidence tending to show bribery consummated, and also an abortive attempt to bribe.
“Defendant invokes the rule, operative in some jurisdictions by judicial holdings, and in others by statute, that there can be no conviction of an attempt to commit a felony if the evidence establishes consummation of the felony. This is the rule in Illinois. People v. Lardner, 300 Ill. 264 (133 N.E. 375). But the rule is not general, and does not prevail in this jurisdiction. If an information admits of conviction of an. attempt to commit a felony, an accused may be found guilty of the attempt, though the evidence shows a completed offense. People v. Miller, 96 Mich. 119; People v. Blanchard, 136 Mich. 146. Such a verdict may be illogical, but the people cannot complain, and the defendant must accept it, even though less in measure than his just desserts; at least he cannot be heard to say that he has suffered injury.” (My italics.) 245 Mich, at 232.