§ 509 a. We come now to a consideration of one of the most important, and at the same time most intricate, titles of the criminal law. There is no one title indeed, less understood by the courts, or more obscure in the text-books, than that of attempt. The reader will therefore interpose no objection, if we delay him more with discussion under this title, than under most other titles of the present volume.

§ 509 b. The leading doctrine of attempt is, that, when the thing done proceeds from a particular intent more evil than the act, it derives from this particular intent a criminality greater in degree than otherwise it would have; or derives a criminality, when otherwise it would not be at all criminal.

§ 510. In our earlier discussions we saw, that, although the wrongful act must proceed from a wrongful intent, to constitute legal guilt,1 yet it need not always be the particular act intended. We saw also, that, while each specific crime is made up of its specific acts; and while, to constitute a par

ticular crime, the particular acts must be fully done;1 yet, if the act and intent, taken together, come short of the particular crime, but are sufficiently evil and have proceeded sufficiently far for the law to notice, they are indictable as an attempt.2 Attempts, which do not amount to substantive crimes, are indicated on our Diagram of Crime, at § 441, by ABP. Now an attempt is, according to common legal understanding, an intent to do a thing, combined with an act which falls short of the thing intended. But, as already shown, there are, in the law, classes of attempts which, when they have proceeded a certain way, are elevated into specific offences. These are therefore not supposed to be included in the section of our diagram marked Attempt; though, since many of the same principles govern them as attempts in the technical sense, they will be somewhat discussed in this chapter.

6

§ 511. We have moreover seen,5 that an act may be either evil in itself, or evil only in consequence of the particular intent with which it is done; or, being evil, may derive an additional degree of criminality from such particular intent. Therefore, though always an act and intent must combine to constitute a crime, yet there are two classes of cases,those in which the criminality comes primarily from the act; and those in which it proceeds either primarily or in part from the specific intent, as distinguished from general malevolence of mind. The doctrine of attempt applies only to the latter class. For, in the former class, where the guilt is measured primarily by the act, and only general malevolence

1 Ante, § 138; post, § 511.

411.

Ante, § 315, 320 et seq., 442-444.

See Johnson v. The State, 14 Ga. 55; The State v. Marshall, 14 Ala.

* Ante, § 316.

Ante, § 229, 315.

Rex v. Sutton, Cas. temp. Hardw. 370.

Ante, § 312.

is required to be shown, if the act has proceeded far enough for the law to notice, it constitutes itself a substantive offence, and is not an attempt. An attempt always implies a specific intent, not merely a general mental culpability. When we say, that a man attempted to do a thing, we mean, that he intended to do, specifically, it; and proceeded a certain way in the doing. The intent in the mind covers the thing in full; 2 the act covers it only in part. The act takes character from the specific intent; which intent, reaching forward beyond the thing done, gives, to what is done a degree of culpability it would not otherwise have.

§ 511 a. In our discussion of this subject, we shall consider the following points: I. The Kind of Intent; II. The Kind of Act; III. The Combination of Act and Intent; IV. The Degree of the Crime of Attempt.

I. The Kind of Intent.

§ 511 b. The most obvious proposition under this sub-title is, that, to constitute a criminal attempt, in distinction from a substantive offence, the intent must be to do something which would be indictable if done. We saw under a previous title, that sometimes an act is indictable when the intent is no more than to commit a mere civil wrong. That doctrine applies only to substantive offences, not to attempts. The reason is, that an attempt is an act proceeding from a malevolence beyond itself; while, in the cases mentioned under the previous title, the evil done, rather than the evil intended,

1 Ante, § 443.

* Eden Penal Law, 3d ed. 86, 87; Rex v. Boyce, 1 Moody, 29; Commonwealth v. Martin, 17 Mass. 359; The State v. Mitchell, 5 Ired. 350; Reg. v. Stanton, 1 Car. & K. 415. And see Reg. v. Adams, Car. & M. 299; Sullivant v. The State, 3 Eng. 400; ante, § 136.

3 Ante, § 257.

is the foundation of the crime; at least, the doctrine there and here rests on different grounds.

§ 512. Since, in order to constitute an attempt to do a thing, the complete doing must be intended; it would seem to follow, that, if from change of purpose the consummation is forborne, there is no attempt. Yet this may be carrying the doctrine too far: probably we have no adjudications on the point. The Prussian penal code, following that of France, declares, as stated by Mr. Sanford, that "an attempt is only punishable when the same is manifested by acts: which constitute a commencement of execution, and when the consummation is hindered only by circumstances, independent of the will of the author." 2

§ 512 a. A more accurate idea of this doctrine of change of purpose may be drawn, however, from the consideration, that the indictable quality of acts depends not on facts transpiring after they are performed. Therefore if a man fully intends the commission of a substantive crime, and proceeds far enough in it for what he does to be indictable as an attempt, then changes his purpose, we may commend the repentance as a good thing in him; but, until repentance constitutes a remission of guilt, we cannot say the crime of the attempt is therefore taken away.

1 See, however, as shedding some light, observations of Gibson, C. J., in Shannon v. Commonwealth, 2 Harris, Pa. 226.

* Sanford Penal Codes in Europe, 61. So, by the penal code of Spain, "Criminal attempt is a direct commencement of execution, by external acts, the realization of which is hindered by causes independent of the will of the author." Ib. 122. And by the Austrian code, "Criminal attempt is punishable when the criminal has committed an action leading to the commission of a crime, which crime, however, was hindered by some circumstances independent of the will of the author. . . . . . An attempt exists also when a person endeavors to persuade another to a crime which he does not commit." Ib. 96.

Ante, § 314.

§ 513. We have seen, that every man is presumed to intend the natural, necessary, and even probable consequences of an act he intentionally performs; and that, in some circumstances, the presumption is conclusive. Upon this principle, there are some acts made substantive crimes, not so much on account of their inherent evil, as of their tendency to promote ulterior mischief. Thus libels are indictable, because they tend to break the peace,2 or to corrupt the public morals,3 or to stir up sedition against the government; bawdy-houses, because their tendency is to corrupt the public morals; 5 forgeries, as tending to defraud individuals, or the public; false oaths and affidavits employed in judicial proceedings, preventing the attendance of witnesses, and the like,10 because they are calculated to pervert public justice; and illustra tions of this sort might be multiplied indefinitely." Here, if a man intentionally does the thing, he cannot be heard to say, in his defence, that he did not intend the ulterior mischief.12 And thence it is, that these wrongs are substantive crimes, instead of attempts.

1 Ante, § 248.

Ante, § 400, 436; Hodges v. The State, 5 Humph. 112; Reg. v. Nun, 10 Mod. 186.

* Rex v. Woodfall, Lofft, 776; Reg. v. Lovett, 9 Car. & P. 462.

Ante, § 379.

• Ante, § 423; Vol. II. § 438 et seq.; Reg. v. Marcus, 2 Car. & K. 356; Rex v. Ward, 2 Ld. Raym. 1461, 1469; People v. Genung, 11 Wend. 18. 7 Vol. II. § 451 et seq.

230.

Ante, § 365; Omealy v. Newell, 8 East, 364; Hamper's case, 3 Leon.

The State v. Carpenter, 20 Vt. 9.

10 Ante, § 365.

"See Williams v. East India Company, 3 East, 192, 201; Reg v. Chapman, 1 Den. C. C. 432; The State v. Taylor, 3 Brev. 243; Smith v. The State, 1 Stew. 506; Holmes's case, Cro. Car. 376; Barefield v. The State, 14 Ala. 603; Reg. v. Darby, 7 Mod. 100; Rex v. Phillipps, 6 East, 464; Reg. v. Renshaw, 11 Jur. 615; Smith's case, 1 Broun, 240; Gibson's case, 2 Broun, 366.

12 And see Reg. v. Gathercole, 2 Lewin, 237; The State v. Nixon, 18 Vt. 70; Rex v. Farrington, Russ. & Ry. 207.