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"in all cases, except agreements to commit felony upon the person of another, or to commit arson or burglary, the indictment must contain a charge of one or more overt acts, one or more of which must be proved upon the trial to have been done to effect the object of the conspiracy." 1

§ 313 a. Moreover there is a class of cases in which men are indictable for what the law calls neglect. A neglect is not properly an act, yet in a sense it is. It is a departure from the order of things established by law. It is a checking of action; or it is like the case of a man who stands still while the company to which he is attached moves along, when we say, he leaves the company. On this principle, a man under legal obligation to remove a nuisance is indictable when he suffers it to continue.2

§ 314. The doctrine is a general one, probably universal, that, in order to constitute an offence, the act and intent must concur in point of time. Therefore larceny, composed of the act of trespass, and the superadded intent to steal,1 is not committed when this trespass and this intent do not exist at the precise moment together.5 In civil jurisprudence, we have

1 People v. Chase, 16 Barb. 495, 498.

And see People v. Mather, 4 Wend. 229, 259; The State v. Norton, 3 Zab. 33. See Vol. II. § 199, 200.

Indianapolis v. Blythe, 2 Cart. Ind. 75.

See the subsequent cases cited to this section; also The State v. Will, 1 Dev. & Bat. 121, 170; Bullock v. Koon, 4 Wend. 531; Morse v. The State, 6 Conn. 9; Rex v. Hughes, 2 Lewin, 229, 232, 1 Russ. Crimes, Grea. Ed. 21; Rex v. Smith, 5 Car. & P. 107, 1 Moody, 314; Brooks v. Warwick, 2 Stark. 389; Reg. v. Sutton, 2 Moody, 29; ante, § 269.

* Ante, § 251.

Reg. v. Preston, 8 Eng. L. & Eq. 589, 2 Den. C. C. 353; People v. Anderson, 14 Johns. 294; People v. Cogdell, 1 Hill, N. Y. 94; The State v. Ferguson, 2 McMullan, 502; The State v. Weston, 9 Conn. 527; Reg. v. Riley, 14 Eng. L. & Eq. 544, Dears. 149, 17 Jur. 189; Reg. v. Glass, 1 Den. C. C. 215, 2 Car. & K. 395; People v. Reynolds, 2 Mich. 422; Long v. The State, 12 Ga. 293; Reg. v. Goodbody, 8 Car. & P. 665; The State v. Braden, 2 Overt. 68; Rex v. Charlewood, 1 Leach, 4th ed. 409, 2 East P. C.

the doctrine, that, when a man does a thing by permission of law, not by license, but by permission of law, — and, after proceeding lawfully a little way, abuses the liberty the law had given him, he shall be deemed a trespasser from the beginning, by reason of this subsequent abuse.1 But this doctrine prevails not in our criminal jurisprudence; for no man is punishable criminally for what was not criminal when done; even though he afterward adds either the act or the intent, yet not the two together.2

§ 315. The proposition, that the State will not pursue a person entertaining a wicked intent, until he does some act from which the public is supposed to have suffered, apparently leads to the conclusion, that the act must in all cases be in its nature injurious. And this is partly so, not wholly; for we have seen,5 that there are circumstances in which the act is sufficient while evil only in consequence of the intent with which it was performed. If a man, for example, were to go upon his own land, and, as a trial of skill, discharge loaded firearms at a mark, this act would be in no sense harmful; but if, with malice aforethought, he aimed his gun

689; Reg. v. Brooks, 8 Car. & P. 295; Rex v. Leigh, 2 East P. C. 694, 1 Leach, 4th ed. 411, note; Reg. v. Evans, Car. & M. 632; The State v. Smith, 2 Tyler, 272; Reg. v. Peters, 1 Car. & K. 245; Rex v. Pope, 6 Car. & P. 346; The State v. Roper, 3 Dev. 473; Reg. v. Thristle, 1 Den. C. C. 502, 2 Car. & K. 842; Rex v. Pear, 1 Leach, 4th ed. 212, 2 East P. C. 685, 697. And see Norton v. The State, 4 Misso. 461; Ransom v. The State, 22 Conn. 153; The State v. Conway, 18 Misso. 321; Rex v. Holloway, 5 Car. & P.

524.

1 Broom Leg. Max. 2d ed. 221; Allen v. Crofoot, 5 Wend. 506; Sackrider v. McDonald, 10 Johns. 253; Hopkins v. Hopkins, 10 Johns. 369; Gates v. Lounsbury, 20 Johns. 427. See Wheelock v. Archer, 26 Vt. 380. The State v. Moore, 12 N. H. 42. And see the other cases cited to this section.

3 Ante, § 254, note, 257, 312.

See a discussion of this point, ante, § 253 a et seq.

5 Ante, § 229, 253 a et seq.

• “The intent may make an act, innocent in itself, criminal.” Rex v. Scofield, Cald. 397, 400, by Lord Mansfield and by Buller, J.

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at a human being, and the charge accidentally hit the mark instead of the man, a grave offence would be committed; though the thing accomplished was in both the supposed instances precisely the same. For it is a general principle, which we shall discuss separately further on, that, if one attempts to do a criminal thing and fails, he is indictable for the attempt. When a man has done all he can to commit a crime, society, ordinarily but not universally, steps in and punishes him as though he had succeeded, yet less severely.

315 a. This doctrine, of an act done from a criminal purpose being indictable when the act has not proceeded far enough to accomplish either the specific thing intended or any other thing in its nature evil, is one sufficiently established in the law, but its limits are not defined. There is a late English case, in which the judges carry the doctrine further than the mere law of criminal attempt was understood by them to carry it. Thus they sustained an indictment for simply procuring dies to make counterfeit half-dollars of the currency of Peru. The statute would have been violated only on the making of the coin; and the judges considered, that the mere procuring of the dies was not an act sufficiently proximate to this offence to constitute an attempt. Still they held it to be a sufficient wrong to be indictable. Said Jervis, C. J., "This is not an indictment for an attempt to commit the statutable offence, as was the case in Regina v. Williams. No doubt, if that were the case, this conviction must have failed, for here there has been no direct attempt to coin; but this is an indictment founded on the criminal intent, coupled with an act. I will not attempt to lay down any rule as to what is such an act done in furtherance of a criminal intent as will warrant an indictment for a misdemeanor, for I do not see the line precisely myself; but it

1 Reg. v. Williams, 1 Den. C. C. 39.

is not difficult to say, that the act done in this case is one which falls within it. If a man intends to commit murder, the walking to the place where he purposes to commit it would not be a sufficient act to evidence the intent to make it an indictable offence; but in this case no one can doubt that the procuring the dies and machinery was necessarily connected with the offence, and was for the express purpose of the offence, and could be used for no other purpose." And Parke, B., observed: "Had the prisoner, with the intent to coin, merely gone to Birmingham with the object of procur ing the dies for coining, and had not procured them, the act, I agree, would have been too remote from the criminal purpose to have been the foundation of a criminal charge. An attempt to commit a felony is not the only misdemeanor connected with it. It is a misdemeanor to do any act sufficiently proximate to the offence, with the intent of committing it. Now, I do not see for what lawful purpose the dies and apparatus could have been made. The case of statutory attempts to commit felonies is very different; there, to support the conviction, proof must be given of an attempt to do the very criminal act." Although the doctrine of this case is just, we may doubt whether the judges were right in denying that the act was to be deemed an attempt. This, however, is a mere verbal distinction, in no way affecting the law itself.

1

§ 315 b. If the reader will turn forward to our Diagram of Crime, presented at § 441, he will see in what manner the author deems the indictable ground to be properly divided. Yet, should he differ from the author in his views of this matter, he may still concede, that, in every case, two questions concerning the act are necessary to be considered together, the solution of which two questions will usually determine

1 Reg. v. Roberts, 33 Eng. L. & Eq. 553, Dears. 539, 25 Law J. N. s. M. C. 17, 19 Jur. 1094. The language of the judges, quoted in the text, is copied from the English Law & Equity report, differing verbally from the report of Dearsly. See also, post, § 523 a.

whether a common law indictment will lie. The first of these is, whether the act is in its nature such as the criminal law takes cognizance of; the second is, whether, being such in its nature, it has proceeded far enough for the law's notice. And it must proceed more or less far according as it is more or less intensely criminal in nature. These points, stated

here in general terms, will be more specifically treated of as we progress in our subject.

§ 316. There are some things which in law are technically substantive offences, while truly they are in whole or in part attempts only; and they fall within the principle of attempts. If, for example, a statute forbids the putting off of a forged bank-note, with intent to defraud the bank; and one with this intent of fraud puts off such a note to an agent of the bank, employed, unknown to him, for the very purpose of detecting offenders, and therefore not really imposed upon in this instance, he commits the offence; because the law leaves it unimportant to its constitution whether a fraud is perpetrated, if attempted, while the act of putting off is complete.1 So if a man in the night time breaks into a dwelling-house, with intent to commit therein an act which in law amounts to a felony, he is guilty of burglary, whether he succeeds in doing the act or not.2 Perjury, likewise, appears to be regarded rather in the light of an attempt, a corrupt attempt to subvert justice in a judicial proceeding; for a man commits this offence who testifies to what he believes to be false, though it turns out to be true.3

1 Rex v. Holden, 2 Taunt. 334, Russ. & Ry. 154, 2 Leach, 4th ed. 1019. And see, as illustrative, Cassels v. The State, 4 Yerg. 149; Wright v. The State, 5 Yerg. 154.

The State v. Wilson, Coxe, 439; Commonwealth v. Newell, 7 Mass. 245; Rex v. Hughes, 1 Leach, 4th ed. 406, 2 East P. C. 491; Rex v. Knight, 2 East P. C. 510; Anonymous, Dalison, 22; ante, § 164, 251.

3 Rex v. Edwards, 2 Russ. Crimes, Grea. Ed. 597, and the other authorities there cited; 1 Hawk. P. C. Curw. Ed. p. 433, § 6.

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