not, as it need not be, "the last proximate act prior to the consummation."1

§ 526. In the class of attempts mentioned in the last section, as in others, it is immaterial as a general proposition, whether the crime attempted is technically a felony or a misdemeanor. But the solicitation being, as we have seen, the first step only in a gradation of steps reaching to the consummation, the thing intended must, on principles already explained,1 be of a graver nature than if the step lay further in advance. Thus an unsuccessful enticement to commit adultery has been held, in Connecticut, where adultery is felony, to be an indictable attempt; but, in Pennsylvania, where it is a misdemeanor punishable by fine not exceeding fifty pounds and imprisonment not less than three months nor more than twelve months, the court has held, that a conspiracy between a man and woman to perpetrate this offence is not indictable. The latter decision was put, indeed, on some peculiar views of the law of conspiracy, not tenable; but the result seems to justify this use of it by way of illustration. And one can hardly doubt, that there may be, in Pennsylvania, an indictable attempt to commit adultery, when the act comes sufficiently near the full offence.

§ 527. Let us draw one further illustration from our propo

1 Ante, § 522, note. And see, as illustrative, ante, § 249. In Reg. v. Eagleton, Dears. 515, 538, 24 Law J. N. s. M. C. 17, 19 Jur. 940, 33 Eng. L. & Eq. 540, Parke, B., said: "The mere intention to commit a misdemeanor is not criminal. Some act is required, and we do not think that all acts towards committing a misdemeanor are indictable. Acts remotely leading towards the commission of the offence are not to be considered as attempts to commit it, but acts immediately connected with it are." But seeon this point, ante, § 315 a.

sition, that the act must have some inherent tendency to accomplish the intended wrong. Otherwise it would not approach sufficiently near the result to be worthy of the law's notice. Thus we have the doctrine, now resting mostly on statutes which are in affirmance of common law principles, that, in forgery and counterfeiting, there must be in the thing forged or counterfeited a similitude to the supposed original; for else it could not probably accomplish any intended cheat.3 And there are various other cases falling within a like principle. But, under a statute which made it criminal to administer to a woman, with intent to procure an abortion, "any medicine or other thing," a learned judge intimated, that it was immaterial what the thing administered was, if given with the intent mentioned, though only "a bit of bread." 5 In such a case, however, if the prisoner knew the thing administered to be incapable of producing the result, the crime would not be committed; because he must be presumed to have acted without the intent which the law requires. And, on principle, perhaps the intimation itself is supportable only by applying a very barren sort of interpretation to the statute...

III. The Combination of Act and Intent.

§ 527 a. The foregoing discussion in this chapter, concerning the act, sufficiently explains how it must combine with

1 Ante, § 516 et seq.

2 Ante, § 369, 423.

Rex v. Hoost, 2 East P. C. 950; Rex v. Elliott, 2 East P. C. 951, 1 Leach, 4th ed. 175, 179; Rex v. Collicott, Russ. & Ry. 212, 2 Leach, 4th ed. 1048, 4 Taunt. 308, 309; Rex v. Welsh, 1 East P. C. 87, 164, 1 Leach, 4th ed. 364; United States v. Morrow, 4 Wash. C. C. 733; Rasnick v. Commonwealth, 2 Va. Cas. 356; Rex v. Varley, 1 Leach, 4th ed. 76, 1 East P. C. 164.

Reg. v. Stringer, 1 Car, & K. 188; Rex v. Griffith, 1 Car. & P. 298. T Rex v. Coe, 6 Car. & P. 403, Vaughan, B.

Ante, § 518.

the intent. Yet a single further observation will be useful by way of enforcing what has already been said. If the intent continues not while every part of the act necessary to complete the attempt is being performed, no criminal prosecution lies for what is done; since act and intent must always combine, and always in point of time. If, however, enough is done while the intent controls the act, no objec tion can be taken that something else, not essential, was done when the intent was not present.2.

IV. The Degree of the Crime of Attempt.

§ 528. All indictable attempts, whether to commit felony or misdemeanor, are misdemeanors. Once an attempt to commit a felony was supposed to be felony; but this doctrine has been long exploded. Therefore if one counsels to a felonious act another, who, in the absence of the adviser, undertakes it and fails, both may be jointly indicted for the attempt; though, had the effort succeeded, the one would have been an accessory before the fact, and the other, a principal, in the felony; and the indictment could not have been in the same sense joint. Some of the English treasons, as the imagining of the king's death, are so purely attempts in their nature as not to admit of technical attempts outside of them.?

1 Ante, § 312, 314.

2 Ante, § 249-250 a.

1 Hawk. P. C. Curw. Ed. p. 72, § 3; 1 East P. C. 411; Dwar. Stat. 2d ed. 794.

1 East P. C. 85, 411, 415; Holmes's case, Cro. Car. 376; The State v. Boyden, 13 Ired. 505; Commonwealth v. Barlow, 4 Mass. 439; Rex v. Scofield, Cald. 397; Hackett v. Commonwealth, 3 Harris, Pa. 95; Rex v. Kinnersley, 1 Stra. 193.

Reg. v. Clayton, 1 Car. & K. 128; ante, § 483.

Ante, § 467; Train & Heard Preced. 15.

'Rex v. Jackson, 1 Crawf. & Dix C. C. 149; 1 Hawk. P. C. Curw. Ed. p. 12, § 27, 30-33; Rex v. Tooke, 1 East P. C. 60; Reg. v. Harris, Car. & M. 661, the note.

But it is believed, that both of the forms of treason known in this country,1 though being in some sense attempts,2 do admit, in the States, of indictable attempts besides,3 which are misdemeanor.4

1 Ante, § 357.

Ante, § 316, 318; Rex v. Stone, 6 T. R. 527; Rex v. Gordon, 2 Doug. 590; 3 Inst. 9. And see Respublica v. Roberts, 1 Dall. 39.

See 1 East P. C. 85. not treason." Holt, C.

ante, § 525.

And see ante, § 507.

[ 556 ]

"If there be only a conspiracy to levy war, it is J., in Friend's case, 13 Howell St. Tr. 1, 61. See

§ 528 a. THE law separates criminal things into what it terms specific offences. The treatment of these offences, severally regarded, will occupy the chapters of our second volume. But some points concerning their combined relations to one another will be examined in this chapter. We shall consider, I. The Division of Crime; II. The Consequences of the Division; III. The Doctrine qualified in Various Circumstances.

I. The Division of Crime.

§ 529. The foregoing chapters of the latter part of the present book finish those divisions of crime, represented on our Diagram of Crime, at § 441. There are other divisions. now to be treated of; namely, those which are connected with the separation of criminal things into what are called specific offences, as just mentioned. And to show these divisions some further drawings have been prepared.

$530. Each of the circles here. exhibited represents a specific offence. When a man has done one wrong, or a series of wrongs tending to one result, his crime, on inspection, often presents divisions and combinations leaving a wide