¶1(concurring).
¶2I believe that the Duckett rule should not be overruled. It may verge on the metaphysical, but is is not chimerical.
¶3In sexual assaults upon females over the age of consent there are at least three conceivable offenses:
RaPel or
0 , . , . . , 2. assault with intent to ravish; or
3, an attempt to commit an assault with intent to ravish
¶4See Morris, 32 Ala.App. 278, 25 So.2d 54; compare Brobston, Case Note, 6 Ala.Law Rev. 93.
¶5*103In Jacobi, 133 Ala. 1, 32 So. 158, we find this remark explaining the refusal of defendant’s Charge 2:
“ … It is not essential to the crime of assault with intent to ravish that the perpetrator should have intended that his accomplished act should be rape. …»
¶6Glanville' Williams in his Criminal Law, The General Part (2d ed.) writes in § 23. Conditional Intention:
“A conditional intention is capable of ranking as intention for legal purposes. Thus, it is no defence to an apparent burglar that his intention was merely to steal a certain paper if it should happen to be there. … The American Law Institute states the principle in the following words:
“ ‘When a particular purpose is an element of offence, the element is established although such purpose is conditional, unless the condition negatives the harm or evil sought to be prevented by the law defining the offence.’
“The illustration given of the concluding qualification is where a man assaults a woman intending to accomplish sexual intercourse with her if she consents: this is not an assault with intent to rape. If, on the other hand, his purpose was to overcome her will if she resisted, he would be guilty of this crime.”
¶7See also Manning v. State, Fla., 93 So.2d 716.
¶8Perhaps the jury was here exhibiting leniency. However, no instruction was tendered in the trial below as to the “all or nothing” theory. I do not consider that a motion for new trial is the proper way to raise the question without explaining why the request was not made before the jury retired. See Prince, 50 Ala.App. 644, 282 So.2d 83.
¶9Woodson, 170 Ala. 87, 54 So. 191, has certain limits under recent decisions. However, it controls here. The evidence is undisputed that there was carnal copulation between the parties. There were left only the questions of the appellant’s intent and his intensity to persist either in strenuous seduction or rape. Classically this was a jury decision,