¶1 I am in disagreement with the construction placed upon section 244, Penal Code, by the prevailing opinion, wherein it is said:
“While it may oftentimes happen that the throwing of the acids described by section 244 of the Penal Code would have the result of producing great bodily injury, the fact that it does so, or even that it will have the properties of doing so, is not required by said section. The crime is complete if any quantity of acid so described, however small in quantity or however weak in strength and however incapable of producing great bodily harm, is thrown or placed upon the person of another, if done wilfully and maliciously with the. intent to injure the flesh or to disfigure to the slightest extent the body of another.”
¶2 The section thus construed reads:
“Section 244. [Assaults with caustic chemicals.] Every person who wilfully and maliciously places or throws, or causes to be placed or thrown, upon the person of another, *89 any vitriol, corrosive acid, or caustic chemical of any nature, with the intent to injure the flesh or disfigure the body of such person, is punishable by imprisonment in the state prison not less than one nor more than fourteen years.”
¶3 The purpose of said section is too evident to require discussion. It was clearly enacted to deter wicked and viciously disposed persons from injuring the flesh or disfiguring the body of a human being by the use of acids of any kind which contain caustic or corrosive properties sufficiently strong to accomplish the purpose of the person who throws them or causes them to be placed upon the body of another with the intent mentioned in said code section. Caustic chemicals are thus defined by Webster’s New International Dictionary: “1. Capable of destroying the texture of anything or eating away its substance by chemical action; burning; corrosive.” Vitriol and corrosive acids are known to possess properties similar to, if not identical with those of caustic chemicals. The section is aimed at such chemicals as do harm to the human flesh, and is not directed against an adulteration, as the opinion holds, so weakened as to be utterly harmless. Society has suffered neither danger, damage nor annoyance by the vicious throwing of harmless adulterations upon its citizens, but it has been outraged by the throwing of vitriols, corrosive adds and caustic chemicals upon its citizens. Therefore we must conclude that the legislature by the enactment of section 244 was moved by a sense of legislative accomplishment and was not wandering in a mere vacuity of purposelessness.
¶4 The crime consists in throwing upon the person of another any kind of vitriol, etc., that would ordinarily disfigure the flesh by burning by chemical action and there is nothing either in its language nor in the reason for the legislation that can justify the inference that an adulteration containing any quantity of said acids, however infinitesimal, impotent, or harmless said adulteration may be, was intended to supply the ingredients of the crime. The throwing of “any vitriol, corrosive acid,” etc., means vitriol and acids which contain the essential properties that characterize them as capable of doing the damage specifically mentioned in the statute.
¶5 It is an axiom of criminal law that a naked intent is not sufficient to constitute a criminal offense, however wicked the design of the accused may be.
¶6*90 To constitute the crime defined by said section 244, supra, there must be an accompanying overt act, intent and the ability upon the part of the person accused to accomplish the act defined by statute. Had the appellant mistaken a vial of water for a vial of vitriol and thrown it upon the person intended to be injured, the crime described by said section 244 would not have been made out. Neither would it have been made out if the proof showed that a mere drop of vitriol, or any one of the other acids named in the statute, had been placed in a gallon of water and thus diluted to a degree that it was absolutely harmless to human flesh. If such had been the case the ability to commit the offense was totally lacking, notwithstanding the evil intent.
¶7 Vitriol or caustic chemicals depend for their characterization upon the strength of the chief ingredients which enable them to fulfill their offices. When they lack such strength and are reduced to a state of harmlessness they have lost their main characteristic.
¶8 The language of the opinion specifically referred to herein is not only obiter, in my opinion, but it is not a correct statement of the law. The latter reason has prompted my dissent from that portion of the opinion above reviewed.
¶9 I concur in the conclusion, however.
¶10 Waste, C. J., concurred.
¶11 Rehearing denied.