An excerpt from US v Thomas, 13 USCMA 278. Regretfully I can't find a public link...

KILDAY, Judge:
The accused herein, Thomas and McClellan, were tried in common by general court-martial. Separate charges against the pair alleged the offenses of conspiracy to commit rape, rape, and lewd and lascivious conduct. Upon arraignment, both men entered pleas of not guilty. Each was acquitted of rape, but the court-martial found them guilty of attempted rape, and likewise convicted them of the other two charges upon which they were brought to trial. Both received identical sentences to dishonorable discharge, confinement at hard labor for three years, forfeiture of all pay and allowances for a like period, and reduction to the grade of airman recruit.
Thereafter, the findings and sentences adjudged by the trial court were approved by the officer exercising general court-martial jurisdiction. The board of review, however, set aside the findings of guilty of attempted rape and conspiracy as to both accused. It approved a modified finding of lewd and lascivious conduct as to each and reassessed the punishment, reducing the sentences of the pair to bad-conduct discharge, confinement at hard labor for five months, total forfeitures, and reduction. The case is before this Court on the following questions certified to us by the Acting The Judge Advocate General of the Navy in accordance with Article 67(b)(2), Uniform Code of Military Justice, 10 USC § 867:
"I. Was the Board of Review correct in setting aside, with respect to both accused, the findings of guilty of Charge I, attempted rape?
"II. Was the Board of Review correct in setting aside, with respect to **280 ***280 both accused, the findings of guilty of the Additional Charge, conspiracy to commit rape?"
The evidence adduced at the trial presents a sordid and revolting picture which need not be discussed in detail other than as necessary to decide the certified issues. In brief, both these young accused--Thomas being twenty years of age, and McClellan only nineteen, at the time of the instant offenses-- started their fateful evening on a "bar hopping" spree. They were accompanied by an eighteen-year-old companion, Abruzzese, who, like both accused, held the grade of airman in the Navy. The latter was a co-actor in these offenses, but was granted immunity from prosecution for his criminality in the incidents, and testified as a witness for the Government.
After several stops the trio entered a tavern known as "Taylor's Place" where McClellan began dancing with a girl. Almost at once she collapsed in McClellan's arms. Thereafter, he, with his two companions, volunteered to take her home. They placed the apparently unconscious female in McClellan's car and left. Abruzzese was seated beside McClellan, who drove; Thomas was in the left rear seat next to the girl. Before they had proceeded very far McClellan, in frank, expressive language, suggested that this was a good chance for sexual intercourse as apparently this woman was just drunk and would never know the difference. Each of the three subsequently did or attempted to consummate this act and then started their return to town. The three became concerned as the woman had not regained consciousness.
In the meantime they dropped Abruzzese off at the USO. The accused, unable to find the female's home and becoming more concerned about her condition, stopped at a service station seeking help. The attendant called the police who, upon arriving at the service station, examined the girl and determined she was dead. An ambulance was called and she was taken to a hospital for further examination. An autopsy, later performed, revealed that she apparently died of "acute interstitial myocarditis." In general terms this is a weakening of the heart muscles with edema and inflammation which occurs more in young people without its presence being suspected. It was the general undisputed opinion that her death probably occurred at the time she collapsed on the dance floor at Taylor's Place or very shortly thereafter. Apparently, in deaths of this type, rigor mortis does not usually begin for some time and as a result the accused were unaware of the fact she was dead.
The chief witness for the prosecution was the co-actor Abruzzese who, as we have noted, had been granted immunity. He implicated himself and both accused in his testimony. A written statement by McClellan concerning the alleged offenses was introduced through an agent of the Office of Naval Intelligence, a witness for the prosecution. The accused Thomas discussed the alleged incident with this same Office of Naval Intelligence agent, but no statement by Thomas was introduced into evidence. Numerous other witnesses testified, including medical experts, and the record of trial and exhibits in this case are voluminous. However, as the board of review stated, no factual dispute exists as to the death of the female involved and the cause thereof. It is clear, as that appellate body concluded, the victim was dead at the time she was removed from the tavern or relatively shortly thereafter, and the prosecution adduced no convincing evidence that she was alive at the time the offenses were committed. Indeed, on the merits trial counsel argued there could be no question but that the accused were guilty of attempted rape, "because the evidence shows that they would be guilty of rape if it wasn't for the fact that the government failed in its proof, perhaps, that she was alive at the time of the intercourse." Neither--at least as we need be concerned, since we deal here only with convictions for conspiracy and attempt, and not with the substantive offense of rape itself--can there be any real controversy regarding the acts done by Abruzzese and the two accused.
Despite the fact that defense counsel at trial vigorously urged to the law **281 ***281 officer that the offenses of attempt and conspiracy could not be found validly if the victim's death occurred prior to the commission of the alleged acts, the law officer ruled otherwise. He instructed the court that to find the accused guilty of rape, or of assault, assault and battery, assault with intent to commit rape, or indecent assault as lesser included offenses thereto, it must be shown beyond a reasonable doubt that the victim was alive at the time of the alleged acts. Otherwise, he admonished the court members, the accused must be acquitted of those offenses. The law officer then continued, and instructed the court on the elements of attempt as an included lesser crime to rape. However, unlike the instructions given as to rape and the other lesser offenses previously mentioned, the law officer did not instruct that being alive was essential to a finding of attempt. That clearly drawn distinction is illuminated by the following colloquy which subsequently ensued between a member of the court and the law officer:
"Cdr. Carpenter: I don't remember you pointing this out in your instructions--you said the woman must be alive if raped but you didn't say whether she had to be alive for attempted rape, although I think you implied it.
"LO: Yes, sir. There is no requirement under the instructions which I have given you that there be a finding she be alive before the accused may be convicted of attempted rape. However, before you can make a finding of guilty of rape or the other lesser included offenses, not including attempted rape, you must so find as a matter of fact that she was alive at that time."
Likewise, the court-martial was not required to find that the alleged victim was alive in order to find the accused guilty of conspiracy.
Before the board of review, appellate defense counsel contended that the law officer erred in his instructions to the court on the attempt and conspiracy offenses. In support of that position, the defense argued that where circumstances beyond the accused's control make it legally impossible to commit a crime, as distinguished from factual impossibility to do so, there can be no attempt nor can there be a conspiracy to commit the substantive offense.
In substance, then, the question thus presented to the board of review was, whether the law officer was correct in his instructions to the court-martial that a finding the victim was alive was not essential to a conviction for attempt as a lesser included offense of rape. As noted above, the law officer had replied to the question of a court member that there was no requirement under the instructions given that there be a finding that she be alive before the accused could be convicted of attempted rape.
The board faced up squarely to the issue, stating:
"Factually, the evidence adduced clearly indicates an attempt made by the accused to effect sexual relations with the victim without her consent. Whether the act was ever consummated is a matter of conjecture. However, the question the board must resolve goes to the legal possibility of such offense as attempt to rape being committed upon a woman, whom the evidence strongly and clearly indicates, was not alive at the time of the attempt."
The board of review held that an attempt to commit a crime must be directed to an object on which it is possible to commit the crime. Reasoning that a corpse is not a person, the board of review determined that the law officer erred in his instruction that there was no requirement that the victim be alive before the accused could be convicted of attempted rape. Thus, the board stated, "If the consummation was not an offense, the attempt herein was not an offense," and concluded, "Legally under the facts and law before us the offense of rape and the lesser included offenses including attempts were impossible of commission." Similarly, it was found that the accused could not be found guilty of conspiring to do that which if effected or consummated would not be an offense. Accordingly, the **282 ***282 board of review set aside both accused's convictions for attempt to commit rape and for conspiracy to commit rape.