to make a trial or experiment, to endeavor, to use exertion for some purpose. A man may make an attempt, an effort, a trial, to steal, by breaking open a trunk, and be disappointed in not finding the object of pursuit, and so not steal in fact. Still he remains nevertheless chargeable with the attempt, and with the act done toward the commission of the theft. So a man may make an attempt, an experiment, to pick a pocket, by thrusting his hand into it, and not succeed, because there happens to be nothing in the pocket. Still he has clearly made the attempt, and done the act towards the commission of the offence. So in the present case, it is not probable that the defendant had in view any particular article, or had any knowledge whether or not there was any thing in the pocket of the unknown person; but he attempted to pick the pocket of whatever he might find in it, if haply he should find any thing; and the attempt, with the act done of thrusting his hand into the pocket, made the offence complete. It was an experiment, and an experiment which, in the language of the statute, failed; and it is as much within the terms and meaning of the statute, if it failed by reason of there being nothing in the pocket, as if it had failed from any other cause." 1 § 518 b. On the other hand, in England, Stat. 14 & 15 Vict. c. 100, § 9, having provided, that, "whereas offenders often escape conviction by reason that such persons ought to have been charged with attempting to commit offences, and not with the actual commission thereof; for remedy thereof be it enacted, that, if on the trial of any person charged with any felony or misdemeanor, it shall appear to the jury upon the evidence that the defendant did not complete the offence charged, but that he was guilty only of an attempt to commit the same, such person shall not by reason thereof be entitled to be acquitted, but the jury shall be at liberty to return as their verdict that the defendant is not guilty of the felony or 1 Commonwealth v. McDonald, 5 Cush. 365. [BOOK IV. misdemeanor charged, but is guilty of an attempt to commit the same," a prisoner, indicted for the burglary of breaking and entering a dwelling-house, and stealing therein certain goods specified, was held not properly convicted of the attempt, under the statute, where the facts showed, that the goods. specified were not in the dwelling-house. The reason for this conclusion is not quite certain; but probably the judges would have deemed the allegation, confined, as it was in this particular case, to specific articles as having been stolen, not sufficiently sustained, even though they considered the facts to make out a criminal attempt; while possibly they did not think the facts were indictable at all as such attempt.1 § 518 c. In a Scotch case the court held, that a crime was committed in wickedly and culpably discharging loaded firearms into an inhabited house, to the apparent danger of lives within. And the Lord Justice-Clerk said: "It was not necessary, under the present libel, to prove real danger to individuals within the house. The mere firing of the gun into the house constituted the crime, the pannel having taken his chance of the consequences. It would therefore be no de fence, that the inmates of the house had accidentally left the room when the shot was fired into it, far less that there happened to be a screen which possibly might shield them from danger. If a person standing upon one side of a wall, and hearing the noise of a crowd collected upon the other, threw over some heavy substance, the act was equally criminal, though the crowd chanced at the moment to have moved back from the wall. In the present case, the act done was one by which lives were endangered, and would in all probability have been lost, had it not been for circumstances which the pannel could not have foreseen." 2 1 Reg. v. McPherson, 1 Dears. & B. 197. 2 Smith's case, 1 Broun, 240. See also Rex v. Coe, 6 Car. & P. 403; Rex v. Crooke, 2 Stra. 901. § 518 d. In England, under Stat. 1 Vict. c. 85, which pro-. vides, that "whosoever, with intent to procure the miscar riage of any woman, shall unlawfully administer to her, or cause to be taken by her, any poison or other noxious thing, or shall unlawfully use any instrument or other means what, soever with the like intent, shall be guilty of felony," an attempt to produce an abortion is indictable, though it fails by reason of the woman being in fact, contrary to the belief of the party, not pregnant.1 And the demand of a gun, with intent to steal it, may be sufficient under Stat. 9 Geo. 4, c. 55, § 6, though in truth the person of whom the demand is made is not the owner of the gun, and has it not in possession.2 We may therefore deem the true doctrine.to be, that, where the object is not accomplished, simply because of obstructions in the way, or because of the want of the thing to be operated upon, when the impediment is of a nature to be wholly unknown to the offender who used appropriate means, the criminal attempt is committed. § 519. The peculiar language of some statutes, interpreted according to the strict rules followed in criminal cases, has led to decisions under them apparently opposed to the doctrine of the last section. Thus it is held, that one does not "shoot at any person," 3 if the person is not in fact in the place toward which the gun is pointed, or within reach 1 Reg. v. Goodchild, 2 Car. & K. 293; Rex v. Goodhall, 1 Den. C. C. 187. And see Goldsmith's case, 3 Camp. 76. The earlier statutes on this subject were held not to be violated when the woman was not in fact pregnant; but this resulted from their peculiar phraseology. Rex v. Scudder, 1 Moody, 216, 3 Car. & P. 605, overruling Rex v. Phillips, 3 Camp. 73. And see Russ. Crimes, Grea. Ed. 763, note. 2 Rex v. McBennet, Jebb, 148. There are some cases of burglary in which a contrary doctrine to that stated in the text might seem to have been held; but they are probably either not very accurately reported, or they turned on a variance between the proof and the allegation in the indictment. They are Rex v. Jenks, 2 Leach, 4th ed. 774, 2 East P. C. 514; Rex v. Lyons, 2 East P. C. 497, 498, 1 Leach, 4th ed. 185. 3 Stat. Geo. 4, c. 31, § 12. Neither does one of the charge, though believed to be so. 519 a. The doctrine concerning mistake of fact, as applied in cases of attempt, may, on principle, be stated as follows: 1 Rex v. Lovell, 2 Moody & R. 39. And see Rex v. Kitchen, Russ. & Ry. 95; Henry v. The State, 18 Ohio, 32. Yet under this statute it has been ruled, that, if the shot hit the person mentioned in the indictment, it is sufficient, though the defendant aimed his gun at another. Rex v. Jarvis, 2 Moody & R. 40. 2 Rex v. Harris, 5 Car. & P. 159; ante, § 199. Rex v. Carr, Russ. & Ry. 377; Whitley's case, 1 Lewin, 123; Reg. v. Oxford, 9 Car. & P. 525; 1 East P. C. 412; ante, § 199; Vaughan v. The State, 3 Sm. & M. 553. And see Reg. v. Lewis, 9 Car. & P. 523; Shaw v. The State, 18 Ala. 547; Rex v. Mountford, 7 Car. & P. 242, 1 Moody, 441; Henry v. The State, 18 Ohio, 32; Rex v. Kitchen, Russ. & Ry. 95. See as illustrative, in regard to assaults, The State v. Cherry, 11 Ired. 475; The State v. Sims, 3 Strob. 137; Reg. v. St. George, 9 Car. & P. 483; The State v. Smith, 2 Humph. 457. Reg. v. Cluderay, 1 Den. C. C. 515, 2 Car. & K. 907, Temp. & M. 219, 14 Jur. 71. And see The State v. Clarissa, 11 Ala. 57; Goldsmith's case, 3 Camp. 76. An indictment for mixing sponge with milk, with intent to poison, was held bad for not setting out that the sponge was of a deleterious or poisonous nature. Rex v: Powels, 4 Car. & P. 571. Rex v. Tannet, Russ. & Ry. 351. 6 • Rex v. Martin, Russ. & Ry. 324; Rex v. Cramp, Russ. & Ry. 327. i 1 Assuming the necessary intent to exist, then the act must have some adaptation also to accomplish the particular thing intended. But the adaptation need only be apparent; because the evil to be corrected relates only to apparent danger rather than to actual injury sustained. If the thing meant were accomplished, the offence would be a substantive one; but, not being accomplished, the danger as it appears to outside observation is the matter indictable under the name of attempt. If, in the case supposed some chapters back, of an attempt to murder, executed in the killing of a wild monster erroneously believed to be a human being,1 there was incurred no legal guilt, the reason is, that, as truly seen from without, the shooting at such an object had no apparent tendency in itself to endanger human life. So in the case of an assault carnally purposed by a boy too young in law to commit rape, there is no apparent danger of the legal offence of rape being committed. But in the case of the attempt to steal by picking a man's pocket, wherein nothing is found, there is danger of success, as the act is viewed from without; because money is ordinarily carried in the pocket, and, if in the particular instance none was there, the omission was a matter pertaining to the particular instance alone, and known only to the one individual. In other words, the doctrine on principle is, that if, in matter of fact, some circumstance attends the particular instance, unknown to the offender, which circumstance is only special to the instance, and not ordinarily attending similar cases, the failure of the offender to do the thing intended, through the intervention of this circumstance, prevents not his act from being indictable. It is then an attempt, precisely as if, the circumstance not intervening, it would have been an executed substantive crime. Therefore also, if the attempt consists in discharging a ball from a gun into a dwellinghouse believed to be inhabited, while in truth no person is in the house; or inflicting a wound on a man who, unknown to the aggressor, is encased in armor; or in sending a challenge 1 Ante, § 319. |