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shooting be at a shadow sufficiently near another person as to put the latter in peril; or if the shooting be at an empty carriage, the offender supposing it to be occupied, then the attempt is made out, on the ground that it is a misdemeanor to shoot into any place usually frequented by human beings. It need scarcely be added that where a person shoots at a crowd generally, intending to hurt any one who may be hit, he may be indicted for an attempt to hurt A., one of the crowd. So where A. shoots at B., mistaking him for C., if there is an actual assault on B., though under a mistake as to who he is, A. may be indicted for attempting to kill B.,3 or for wounding B. with intent to kill.*

§ 187. Of abandoned attempts we have, in our criminal practice, few illustrations, unless it be in cases of attempts at treason, of which the English state trials give instances, where the defence was that the defendant withdrew from the traitorous conspiracy before an overt act. This defence, however, has been more than once overruled, for though it constitutes an appeal to clemency, it is no defence to the charge of traitorous combination."

Aban

The true line of distinction is this: If an attempt be voluntarily and freely abandoned before the act is put in process of final execution, there being no outside cause prompting doned atsuch abandonment, then this is a defence; but it is other- tempts not wise when the process of execution is in such a condition

the money. Hun, 66, 1893.

2

? R. v.

indictable.

1 See supra, ¿120; infra, ¿¿ 319, 820. dicted under the last-mentioned secAn indictment for attempt to commit tion for attempting to administer extortion cannot be sustained where poison. It appeared that he had deall the elements of the crime were livered poison to V., and desired him present except one, namely, that A. to put it into B.'s beer; V. delivered was induced by fear to pay defendant the poison to B. and told him what People v. Gardner, 73 had passed. It was held that the prisoner could not be convicted on this indictment. But quære, if this is not an attempt indictable at common law. See the case of R. v. Higgins, supra." Roscoe's Cr. Ev. 303. R. v. Williams is approved in Stabler v. Com., 95 Pa. 318, 1880. The difficulty in such case, at common law, would be removed by averring the attempt an indictment lies when to be to induce such third person to capability of success depends upon administer poison.

Fretwell, L. & C. 443, 1862;
111;

9 Cox C. C. 471. See supra,

infra, 319.

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See R. v.

R. v. Holt, 7 C. & P. 518, 1836. Lallament, 6 Cox C. C. 204, See infra, 317, 318, and particularly supra, 33 107-111.

1854.

An

whether

interesting question arises

the intervention of an independent

4

Supra, 2 107, 120; infra, 22 641,

third person. "In R. v. Williams, 1 645 a.

Den. C. C. 39, the prisoner was in- 5 Stephens v. Myers, 4 C. & P. 349,

that it proceeds in its natural course, without the attemptor's agency, until it either succeeds or miscarries. In such a case, no abandonment of the attempt, and no withdrawal from its superintendence, can screen the guilty party from the results."

1830; though see R. v. Mulcahy, L. R. watched. Suppose that instead of see3 H. L. Ap. 306, 1868; R. v. McCann, ing the line of cavalry in his way, he 28 Up. Can. Q. B. 516; Goff v. Prime, finds a change has taken place in the 26 Ind. 196, 1866. Infra, & 228. appointments of the palace, from which he infers that the plot has been discovered. Suppose that instead of being caught by the policeman he sees

1 State v. Allen, 47 Conn. 121, 1878; State v. McDaniel, Winst. 249, 1864; Lewis v. State, 35 Ala. 380, 1862; State v. Hayes, 78 Mo. 307, 1883. See somebody in the distance, a good deal infra, 214. See, also, State v. Elick, 7 Jones, (N. C.) 68, 1859; Pinkard v. State, 30 Ga. 757, 1860, and other cases cited infra, 22 576 et seq.

like a detective, curiously inspecting him. Certainly we cannot consider his withdrawal under such circumstances voluntary. And so speak the cases cited.

But suppose the hindrance which caused the offender to back out was imaginary. It was not a cause outside of himself It was a cause inside of

In the issue of voluntariness we may consider the following contingencies: Suppose that a burglar finds that the window he expected to enter has been blocked up during the night. Or suppose, as was the case in one of the himself. Here, again, we are entangled attempts on the life of William III., the assassins, as they approach, see in the distance a regiment of cavalry encircling their intended victim. Or suppose that the pickpocket, just as he is inserting his hand, is arrested by a police officer. No one would doubt that in all these cases the consummation of the offence was hindered by causes outside of the will of the offender. He was physically prevented from effecting the purpose. He could not have penetrated the wall, or broken through the line of cavalry, or picked the pocket when in the policeman's grasp.

But a much more difficult question arises when the attempt is not physically interrupted by extraneous conditions, but where these conditions are such as to induce the offender to withdraw. Suppose that instead of finding the window walled up he sees some slight disarrangement in the premises which leads him to suspect that he is

in a metaphysical discussion. Are what we see in any case real existences, or can our impressions of them be at the utmost anything more than mirrors within ourselves? But if all abandonment is voluntary when produced by impressions within ourselves, there can be no involuntary abandonments, since there are no abandonments not so produced. Such is the reply we may make, taking even the most realistic metaphysical theorists as our guides, to those who argue that an unreal impression of danger is not an effective condition. It is enough, however, to say that as in other cases (e. g., self-defence) unreal impressions are regarded as effective conditions, they may be so regarded in this case.

See R. v. Taylor, 1 F. & F. 511, 1859; R. v. Sharpe, 3 Cox C. C. 288, 1849; Com. v. Tobin, 108 Mass. 426, 1872; State v. Blair, 13 Rich. 93. Thus in treason, which is a high grade of attempt, where the attempt is frus

But how, if in addition to abandoning the attempt, the guilty party takes means to cause it to effectually miscarry, as when he informs a person to whom a poisoned dish has been sent that the dish is poisoned; and the mischief is stopped? Here, so far as concerns the actor, the attempt is abandoned before it has been virtually put in process of final execution; and hence this abandonment is a defence. The offender has retreated in such a way as to render it impossible for evil consequences to ensue.

For the doctrine that abandonment of an attempt not yet put in process of final execution is a defence, two reasons are given. First, the character of an attempt is lost when its execution is voluntarily abandoned. There is no conceivable overt act to which the abandoned purpose could be attached. Secondly, the policy of the law requires that the offender, so long as he is capable of arresting an evil plan, should be encouraged to do so, by saving him harmless in case of such retreat before it is possible for any evil consequences to ensue. Neither society, nor any private person, has been injured by his act. There is no damage, therefore, to redress. To punish him after retreat and abandonment, would be to destroy the motive for retreat and abandonment.3

It is to be noticed, however, that as the attempt is only provable by some overt act, so the abandonment of the attempt cannot be proved by mere conjectural tests or by declarations of mental change. As declaring an intention to do a thing is not an indictable attempt, so declaring an intention to give up an attempt is not

trated by extraneous interruption, then such frustration is no defence.

U. S. v. 1821.

U.S. v.

1 See 1 Hale, 618; Goff v. Prime, 26 Ind. 196, 1866.

2

Pryor, 3 Wash. C. C. 234, Berner, Lehrbuch d. Strafrechts, But in such case (e. g., an p. 176. As to assaults, see infra, ? 605. abortive attempt to communicate in- 3 The Roman law strikes at the same telligence, or to furnish supplies to distinction: Gloss. ad L. 67. D. de an enemy) the proper course is to furt. (47, 2.) Si processum est ad indict for the attempt. But see contra, actum: si quidem consummatum est Pryor, supra, in which it was et perfectum, non potest postea poeheld that such attempt was treason; nitere ut evitet poenam. Si autem compare R. v. Hensey, 2 Ld. Kenyon, actum non consummatum est nec per366; 1 Burr. 642; and see infra, & 225. fectum: si quidem quia noluit, sed So an attempt to commit rape may be potuit, licet poenitere, et non incidit abandoned after the first approach, in poenam. See, also, Seneca Agayet nevertheless such attempt is in- mem. v. 242 sq. Nam sera nunquam dictable. See Lewis v. State, 35 Ala. est ad bonos mores via: Quem poeni380, 1862, cited infra, and see, also, tet peccasse, paene est innocens. See infra, & 576 a. infra, ¿ 225.

an abandonment of the attempt. If it were otherwise, criminal attempts, especially political, would cease to be indictable, for there are few cases in which such criminal attempts, when in process of execution, are not disavowed. There must be substantive acts showing that the abandonment was real, just as there must be substantive acts showing the attempt was real.

It should be remembered, also, that if such abandonment is caused by fear of detection it is no defence, if the attempt progress sufficiently toward execution to be per se indictable before such abandonment. Thus if a thief, when moving his hand toward a pocket, desists on seeing a detective, the offence is made out. Το the same effect, perhaps, may be cited American decisions, in which attempts at rape, abandoned before consummation, were held indictable. It is true that it may be observed that in these cases the offence of felonious assault was complete, prior to the period of abandonment. More exactly illustrative of the principle is an English case tried before Chief Baron Pollock, in which it appeared that the defendant, having lighted a lucifer match to set fire to a stack, desisted on discovering he was watched. It was held, and properly, that this abandonment of purpose was no defence. It must also be remembered that if an attempt-e. g., an assault-is frustrated by force, such frustration is no defence.3

1 Lewis v. State, 35 Ala. 380, 1862; State v. Elick, 7 Jones, (N. C.) 68, 1859; People v. Stewart, 97 Cal. 238, 1894. See, also, State v. McDaniel, 1 Winston, 249, 1864. And see, as qualifying above, Kelly v. Com., 1 Grant, (Pa.) 484, 1854. See infra, 779.

2 R. v. Taylor, 1 F. & F. 511, 1859. See supra, 181.

small gate, but there was no proof that they came nearer the house than twelve or thirteen feet, nor did they pass the picket gate. They went, as it was supposed, to the rear of the house, and were not seen afterward. It was held by the Queen's Bench that there was not sufficient establishment of a persistence in the attempt

Stephen v. Meyers, 4 C. & P. 349, to justify a conviction, the attempt 1830. Infra, 604.

appearing to have been voluntarily abandoned before any mischief was done. It was added, however, that if it appeared that such abandonment was not voluntary, but caused by surprise and interruption from others, and that but for such surprise and interruption they would have carried out their burglarious design, there was ground for a conviction. R. v.

In an Upper Canada prosecution for an attempt to commit burglary, it was proved that two defendants agreed to commit the offence on a certain night, together with C., who, however, was detained at home by his father, who suspected the design. The defendants were seen about midnight entering a gate fifty feet from the house; they came toward the house to a picket McCann, 28 Up. Can. Q. B. 517. fence in front, in which there was a

rape

tempt is resisted it

§ 188. Where the attempt is resisted at first, but the consummation of the crime is assented to, the offender may be in- When atdicted for the attempt. In and robbery we can conceive of cases of this class. A man assaults a woman with intent to ravish. She resists; but ultimately yields. Here, ently if his intention was to use force to the end, he is indictable for the attempt,' though it is otherwise where he did consumnot intend to use force.2

may be independ

tried,

though

mation is yielded to.

§ 189. Where the attempt is acquiesced in by the party injured, through fraud or incapacity, the acquiescence does not bar the prosecution.3

It is clear that when the person injured is incapable of giving assent, such assent cannot be set up as a defence.

Acquies

cence

through

fraud or incapacity

no bar.

II. INDICTMENTS.

ment, the

mitted in

§ 190. In indictments for attempts the laxity permitted in assaults will not be maintained. No doubt it is enough to charge that A. did "make an assault" on B. But the reason is In indictthat "assault" is a term which describes an act easily de- laxity perfined; which asserts a consummated offence; and which assaults is always indictable, no matter in what sense the term may be used. But "attempt" is a term peculiarly indefinite. It has no prescribed legal meaning. It relates from its nature to an unconsummated offence. It covers acts some of which are indictable and some of which are not.

does not

hold good.

rulings af

§ 191. Nor do decisions under statutes rule the question at common law. It is within the power of the English parlia- Nor do ment and, as it has frequently been ruled," of the legisla- statutory tures of our American States, to pass statutes declaring a fect quesparticular act to be indictable, and providing that it shall be enough to describe such act in the statutory terms. law. When this is done by direction or implication, it is proper for the courts to hold, as has been done, that an indictment, charging that

1

tion at

common

See infra, & 577; State v. Harti- woman after first resisting ultimately gan, 32 Vt. 607, 1860. For other yields, see People v. Bransby, 32 N. cases, see supra, ? 141. Y. 525, 1865; State v. Cross, 12 Iowa, 66, 1861; infra, 22 558, 577.

Ibid; Taylor v. State, 50 Ga. 79,

1873.

See supra, 146. That the attempt

* R. v. Mayers, 12 Cox C. C. 311, 1872. Supra, 146.

may be indicted even though the 5 See Whart. Cr. Pl. & Pr. 90.

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