¶1(concurring in the result).- The defendant, Laurence R. Hebert, was indicted for attempted murder, rape, assault with intent to murder, and assault and battery. A jury convicted him of attempted manslaughter and assault and battery. He was acquitted on the other charges. He has appealed only his conviction for attempted manslaughter. By its opinion in this case the court has reversed the conviction for the basic reason that it does not believe that there is such a crime as an attempt to commit manslaughter under our law. While I concur in the reversal, I would do so because of the absence of any evidence that supports a conclusion that the assault was committed in a heat-of-passion that resulted from provocation. Thus it would not be necessary to consider the question whether the Commonwealth recognizes the crime of attempted voluntary manslaughter. However, since the court has discussed this question, and since I disagree with its conclusions, I will address the issue.
¶2The court states that an attempted voluntary manslaughter is logically possible, but it later casts doubt on *541this conclusion by citing with apparent approval the case of People v. Weeks, 86 Ill. App. 2d 480 (1967), where the Illinois Appellate Court held that the concept of attempt involved an element of calculation or deliberation and was thus inconsistent with a heat-of-passion voluntary manslaughter. Id. at 485. For the reasons which follow, I believe that the crime of attempted voluntary manslaughter is logically possible and that it exists under the law of the Commonwealth.
¶3An attempt to commit a crime requires two elements: (a) an intent to do an act which, if completed, will constitute a crime, and (b) an act done pursuant to that intent. Commonwealth v. Peaslee, 177 Mass. 267, 271 (1901) (Holmes, C.J.). Commonwealth v. McDonald, 5 Cush. 365, 367 (1850). R. Perkins, Criminal Law 552 (2d ed. 1969). The point in issue here is whether the first element can be satisfied in a voluntary manslaughter situation, i.e., whether one can intend to commit a crime that by its own definition is conceived by the perpetrator while he is in a state of intense agitation. The defendant argues that the intent cannot be present because the crime of voluntary manslaughter excludes intentional conduct. This proposition, however, is incorrect. The factor that distinguishes voluntary manslaughter from murder is not the absence of intent, but rather the absence of malice aforethought. “Manslaughter is the unlawful killing of another without malice; and may be ... voluntary, as when the act is committed with a real design and purpose to kill, but through the violence of sudden passion, occasioned by some great provocation____ [T]he characteristic distinction between murder and manslaughter is malice____” Commonwealth v. Webster, 5 Cush. 295, 304 (1850).
¶4*542The view that voluntary manslaughter involves intentional conduct is consistent with the opinion of this court in Commonwealth v. Demboski, 283 Mass. 315 (1933), recently cited with approval in Commonwealth v. Martin, 369 Mass. 640, 641 n.1 (1976). In the Demboskicase the defendant was indicted for assault with intent to commit murder and convicted by a jury of the lesser charge of assault with intent to kill. 283 Mass, at 317. This court, affirming the conviction, held that an assault with intent to kill was the same as an assault with intent to commit manslaughter. Id. at 322-323. It stated that the offense exists where the defendant “intends only such killing as amounts to manslaughter.” Id. at 322. It thus believed that a person was capable of forming an intention while provoked. To hold otherwise now would be inconsistent with our decision in the Demboskicase.
¶5The court also appears to suggest that the mental element required for an attempted crime goes beyond “intent” as it is generally defined and includes additionally an element of calculation or deliberation. I find no support for this proposition in our cases, and I believe that it is inconsistent with the Demboskidecision since, as the court indicates in its opinion here,
¶6Thus I conclude that the crime of attempted voluntary manslaughter is logically possible. This conclusion is consistent with the majority of the admittedly scarce authority elsewhere. See Vogel v. State, 124 Fla. 409 (1936); State v. Harper, 205 La. 228 (1944); People v. Genes, 58 Mich. App. 108 (1975); but see People v. Weeks, supra.It is also in harmony with those courts that have recognized the similar crime of assault with intent to commit manslaughter. See, e.g., Walker v. State, 44 So. 2d 814 (Fla. 1950); State v. Crutcher, 231 Iowa 418 (1941); State v. Null, 355 Mo. 1034 (1947); State v. Butman, 42 N.H. 490 (1861); but see Moore v. People, 146 Ill. 600 (1893); People v. Lilley, 43 Mich. 521 (1880).
¶7I would further hold that an attempt to commit voluntary manslaughter is a crime in Massachusetts. I believe that the current statutory framework supports such a conclusion, and that the abrogation of the offense is a proper task for the Legislature, rather than for this court.
¶8The court holds that the crimes of assault with intent to commit manslaughter and attempted manslaughter are identical, and concludes that recognition of the latter is not warranted since it would create unnecessary duplication. I cannot agree that the crimes are identical because I believe that, although the basic intents required for the two offenses are equivalent, the activities necessary to constitute each are not. Specificially, the acts necessary to constitute an assault with intent to commit a particular crime must come closer to success than those required for an attempt to commit that crime. Perkins, supra at 578.
¶9This difference in degree of proximity to success has generally been recognized. See Perkins, supra at 578; e.g., Vogel v. State, 124 Fla. 409, 413 (1936); Fox v. State, 34 Ohio St. 377, 380 (1878); State v. Mortensen, 95 Utah 541, 550 (1938) (Hanson, J., dissenting). “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) *544than is the law in regard to an attempt to commit an offense other than battery.” Perkins, supra at 578.
¶10The distinction can also be inferred from the language of the Massachusetts attempted murder statute, G. L. c. 265, § 16. An attempted murder is there defined to include attempts to murder “by any means not constituting an assault with intent to commit murder.” The provision thus contemplates acts that are insufficient to support a conviction for assault with intent to murder, but that nonetheless constitute attempted murder. Perkins, supra at 579. This conclusion was reached by the Florida Supreme Court in Vogelv. State, supra, interpreting a similar statute and deciding the exact issue presented here. That court held that attempted manslaughter and assault with intent to commit manslaughter were not identical because the degrees of proximity to success required for each crime differed. Accord, Perkins, supra at 579.
¶11The appropriateness of the recognition of the attempted voluntary manslaughter offense is also suggested by the statutory scheme of criminal law in the Commonwealth. General Laws c. 274, § 6, makes criminal any “attempts to commit a crime.” This statute, on its face, is nonexclusive, applicable to attempts to commit all crimes, without regard to whether the criminal attempt overlaps any other offense. The Legislature itself expressly recognized the existence of an overlap between the crimes of attempted murder and assault with intent to murder, and there acted to eliminate it. See G. L. c. 265, § 16. The elimination of other such areas should similarly be accomplished by the Legislature. Until such time as the Legislature chooses to act, the offense of attempted voluntary manslaughter should be recognized in the Commonwealth.
¶12 The defendant’s reliance on People v. Brown, 21 App. Div. 2d 738 (N.Y. 1964), is misplaced. In New York, manslaughter is a statutory crime, and at the time of the Brown decision the offense was defined to exclude any intentional conduct. See People v. Foster, 19 N.Y.2d 160, 152-153 (1967). Thus, in effect, there was no crime of heat-of-passion voluntary manslaughter in New York. The statute has since been changed. See N.Y. Penal Law § 125.20 (McKinney 1975).
¶13 The court states that the crimes of assault with intent to commit manslaughter and attempted manslaughter are identical in all their aspects. As I indicate below I do not go so far, since I think that the acts necessary for each differ in quality. See infra at 543.
¶14 The Weekscase appears to be the only one to take this position, at least in regard to attempted manslaughter. The courts of Michigan, Florida, and Louisiana have recognized the crime of attempted voluntary manslaughter, see infra at 538, and thus impliedly reject the Weeksview.