The opinion
BLISS, Judge
(specially concurring):
I concur generally in this Opinion and specially in its holding that the State’s evidence in the case, if believed, supports the alleged crime of Murder in the First Degree and, therefore, warranted the Magistrate in binding the defendant over for the crime, the trial court in overruling the Motion to Quash and Set Aside the Informa *1161 tion and in submitting the issue to the jury. The evidence, if believed, sustains the State’s theory that the killing of Clarence Duty by the defendant was an overt act by him in an attempt to rape the mother, Dovie Duty, and, therefore, the homicide was perpetrated by him while attempting to commit the crime of rape.
As stated in Taylor v. State, 96 Okl.Cr. 188 , 251 P.2d 523 (1953), the elements of an “attempt to commit a crime” are intent, performance and some act toward consummation of the crime and failure to consummate its commission.
Further, this Court held in Dunbar v. State, 75 Okl.Cr. 275 , 131 P.2d 116 (1942), as follows:
“It is also well settled that the overt act must be something more than mere preparation or planning the crime. It must be something done, some step taken beyond preparation, that directly moves toward the crime and brings the accused nearer to its commission than mere acts of preparation or of planning. It must be such act or acts as will apparently result, in the usual and natural course of events, if not hindered by extraneous causes, in the commission of the crime itself.”
Under the State’s theory, defendant intended to commit the crime of rape, his victim’s son, Clarence Duty, stood in his way and was a barrier to his purpose, homicide eliminated him and was an overt act toward the commission of a crime, though not consummated. For this theory the State relied on its witnesses who quoted the defendant as follows: “I’m going to kill the Goddamned Son-of-a-Bitch, and then I am agonna kill, I’m agonna kill, I’m agonna rape you.” Later he summarized his acts by saying he had killed Clarence and had tried to have intercourse with “grandma and couldn’t.”
As held in the Opinion, there was no merit in the first and second assignments of error.