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to one whose principles will not permit him to fight; or in administering poison to one who has already an antidote to the poison in his stomach ; or in doing any other thing which fails by reason of some such casual obstacle intervening, the attempt is complete; since there is created the apparent insecurity against which the criminal law protects the public.
$ 520. An attempt may be too small a thing, or proceed too short a way toward its accomplishment, for the law to. notice. How great it must be, and how far progress, is not a matter of a nature reducible to exact rule. It seems to have been formerly by some judges supposed, that no at-, tempt to commit a mere misdemeanor is indictable ;3 but this view is clearly erroneous, and the doctrine is now gener, ally stated in broad terms to be, that every attempt to commit any crime,4 whether treason, felony, or misdemeanor, and whether existing at common law or under statutes, is itself a crime.
$ 521. Yet evidently, although some act must accompany
? Ante, $ 320–324. ? Ante, $ 322. 3 See observations in Reg. v. Meredith, 8 Car. & P. 589. * Rex v. Scofield, Cald. 397, 403 ; Rex v. Higgins, 2 East, 5. 6 Rex v. Cowper, 5 Mod. 207, Skin. 637; Rex r. Fursey, 6 Car. & P. 81.
& The State v. Danforth, 3 Conn. 112; The State v. Boyden, 13 Ired. 505; Commonwealth v. Barlow, 4 Mass. 439; 1 Hawk. P. C. Curw. Ed. p. 72, $ 3; IIolmes's case, Cro. Car. 376; Rex v. Hughes, 5 Car. & P. 126 ; Reg. v. Clayton, 1 Car. & K. 128; Rex v. Higgins, 2 East, 5; The State v. Avery, 7 Conn. 266.
' Rex v. Scofield, 2 East P. C. 1028, 1030; Rex v. Burdett, 4 B. & Ald. 95; Reg. v. Martin, 9 Car. & P. 215; Reg. v. Martin, 9 Car. & P. 213, 2 Moody, 123; Commonwealth v. Kingsbury, 5 Mass. 106, 108; Reg. v. Meredith, 8 Car. & P. 589; Dugdale v. Reg. 1 Ellis & B. 435, 16 Eng. L. & Eq. 380; Rex v. Phillips, Cas. temp. Hardw. 241 ; Ross v. Commonwealth, 2 B. Monr. 417.
8 Ante, $ 85; Rex v. Cartwright, Russ. & Ry. 106 ; Rex v. Roderick, 7 Car. & P. 795; Reg. v. Butler, 6 Car. & P. 368; The State v. Maner, 2 Hill, S. C. 453 ; The State v. Avery, 7 Conn. 266.
the intent, still, as the thing noticed by the law is the sum of both act and intent, added together, the act may be less, and proceed less far, in proportion as the intent is in enormity greater. Because the object of the law is to suppress wrong, after it has attained a standard magnitude; and there is no room for doubt, that the intent gives color to the act to the extent of making, under circumstances, an act indictable or not, according as the intent is greater or less in evil. On the other hand, the act also, being greater or less in evil, is indictable or not on this ground, while the intent remains the same. Therefore the representation on our Diagram of Crime, at $-441, is substantially correct; where the lines B P and A P converge, coming to a point at P, before they reach the utmost height, at 0; showing not only the idea just presented, but also, that no mere attempt to commit some of the smaller misdemeanors is a sufficient dereliction from duty to be indictable.
$ 522. Lord Abinger once suggested, that the thing done, necessary to constitute an indictable attempt to commit a misdemeanor, must be some illegal act.” And he added :
“ - Suppose, for instance, that a man intended to commit the misdemeanor mentioned by Mr. Greaves (of carnally knowing and abusing a child between the ages of ten and twelve years), and was to take his horse and ride to the place where the child was, that would be a step towards the commission of the offence, but would not be indictable.” 3. This, however, we cannot fail to notice, would be only a preparation for making the attempt;4 or at all events it would not be a commencement of execution," within the words of the
Ante, $ 312. ? See ante, $ 444.
Reg. v. Meredith, 8 Car. & P. 589. • It has been observed, however, that the act need not be the last proximate act prior to the consummation of the felony attempted to be perpetrated.” Uhl v. Commonwealth, 6 Grat. 706.
Prussian code. In another view, if the learned judge meant by the words "illegal act," an act illegal per se, without refer ence to the accompanying intent, he was wrong; if he meant an act illegal when considered in connection with the intent, he did not help the difficulty; because the question is, when the act, linked to the intent, is illegal, and so indictable. For instance, it has been held indictable to put into a man's pocket "three ducats, with a malicious intent to charge him with felony 193 a very bad act when seen under the shadow of this intent; yet a very good one, if the man was in poverty and distress, and the intent was to give him the ducats. Perhaps, therefore, this matter is best left to the enlightened discretion of the judges, as each case presents itself.4
§ 522 a. The proposition, that some acts toward commit ting substantive crimes are indictable otherwise than as attempts, has been already considered. And further reflection still presses the author to the conclusion, that the propriety of legal language, and the harmony of legal science, are best preserved by considering all such acts to be attempts. There is no reason why the field of the indictable should be cut up more than it is at present. But, let us still remember, the difference of view now spoken of is merely respecting the language of the law, not at all respecting the law itself.
§ 523. That some offences cannot have the appendage of
1 Ante, § 512.
Ante, § 229, 315, 348, 511, 514.
Rex v. Simmons, 1 Wils. 329.
* See Uhl v. Commonwealth, 6 Grat. 706; Rex v. Taylor, Holt, 534; Reg. v. St. George, 9 Car. & P. 483; Reg. v. Lewis, 9 Car. & P. 523; United States v. Twenty-eight Packages, Gilpin, 306; The State v. Bruce, 24 Maine, 71; Rex v. Parfait, 1 Leach, 4th ed. 19, 1 East P. C. 416, 417; Sinclair's case, 2 Lewin, 49; Reg. v. Renshaw, 20 Eng. L. & Eq. 593, 2 Cox C. C. 285, 11 Jur. 615; Gibson's case, 2 Broun, 366.
Ante, § 315 a, 315 b.
attempt because of their little magnitude, is a truth resting as well in authority as in reason. Thus a man is not indictable for attempting, or persuading to, the sale of a glass of intoxiçating liquor without a license;? or for making a mere contract to sell spirits, where only the selling is interdicted.3. But he is indictable for procuring an obscene print with the intent to publish it;4 and, it seems, for writing any libel with such intent.5
§ 524. Yet, further than the foregoing principles have disclosed, the nature of the act seems not to be material. The
Ante, $ 521; Rex v. Upton, 2 Stra. 816; Rex v. Bryan, 2 Stra. 866; Dobkins v. The State, 2 Humph. 424; Commonwealth v. Willard, 22 Pick. 476; Pulse v. The State, 5 Humph. 108; Ross v. Commonwealth, 2 B. Monr. 417.
Commonwealth v. Willard, 22 Piek. 476. In this case, Shaw, C. J., observed : “It is difficult to draw any precise line of distinction between the cases in which the law holds it a misdemeanor to counsel, entice, or induce another to commit a crime, and where it does not. In general, it has been considered as applying to cases of felony, though it has been held that it does not depend upon the mere legal and technical distinction between felony and misdemeanor. One consideration, however, is manifest in all the cases, and that is, that the offence proposed to be committed, by the counsel, advice, or enticement of another, is of a high and aggravated character, tending to breaches of the peace, or other great disorder and violence, being what are usually considered mala in se, or criminal in themselves, in contradistinction to mala prohibita, or acts otherwise indifferent than as they are restrained by positive law. All the cases cited in support of the objection are of this description .. .. We know of no case, where an act whieb, previously to the statute, was lawful or indifferent, is prohibited under a small specific penalty, and where the soliciting or inducing another to do the act, by which he may incur the penalty, is held to be itself punishable. Such a case perhaps may arise, under peculiar circumstances, in which the principle of law, which in itself is a highly salutáry one, will apply; but the court are all of opinion, that it does not apply to the case of one who, by purchasing spirituous liquor of an unlicensed person, does, as far as that act extends, induce that other to sell in violation of the statute."
Pulse v. The State, 5 Humph. 108.
Douguale v. Reg. 16 Eng. L. & Eq. 380, 1 Ellis & B. 435; ante, $ 312. • Rex v. Burdett, 4 B. & Ald. 95, 159.
staking at a gaming-table of counterfeit coin, as good, is an attempt to utter and pass the coin. One may attempt to burn his neighbor's house, by burning his own;2 or to carnally know and abuse a girl between the ages of ten and twelve years, by doing with her consent an act which other. wise would be an assault.
$ 525. A common form of attempt is the soliciting of an: other to commit a crime; the act, which is a necessary ingre: dient in every offence, 4 consisting in the solicitation. Thus, to incite a servant to steal his master's goods, or other per. son to undertake a larceny;7 to make overtures to one to commit sodomy, or adultery, where adultery is a statutory felony ;' to offer, merely, a bribe ; 10 to request, it seems, one to post up a threatening notice; 11 are severally indictable misdemeanors, though the person approached declines the persuasion. A conspiracy, too, is a solicitation and something more; and therefore it falls in some measure within the rules of law which govern attempts, though it is subject to the influence of other legal principles likewise, 12 A solicitation, accurately viewed, may be deemed "a commencement of execution ;” 13 but it is only the first step in such execution,
1 The State v. Beeler, 1 Brev, 482.
Reg. v. Martin, 9 Car. & P. 213, 2 Moody, 123. * Ante, $ 312, 511.
Rex v. Iliggins, 2 East, 5; Reg. v. Turvy, Holt, 364, 365; People v. Bush, 4 Hill, N. Y. 133; : The State v. Avery, 7 Conn. 266; Commonwealth v. Harrington, 3 Pick. 26,
• Rex x. Higgins, supra; Reg. v. Daniell, 6 Mod. 99, 182, 1 Salk. 380.
? Pennsylvania v. McGill, Addison, 21. See Reg. v. Collingwood, 6 Mod. 288.
8 Rex v. Hickman, 1 Moody, 34; Reg, v. Rowed, 6. Jur. 396. · The State v. Avery, 7 Conn. 266.
10 United States v. Worrall, 2 Dall. 384; Hefleton r. Lister, Cas. Prac. C. P. 88.
11 Reg. v. Darcy, 1 Crawf. & Dix C. C. 33.