the defendant did "attempt" to feloniously steal from the house of A. B., or "to commit a rape" on A. B.,' is good. But this does not touch the question at common law. Indictment circumstances of attempts. § 192. At common law such facts must be set forth as show that the attempt is criminal in itself.3 Attempts may be merely in conception, or in preparation, with no causal connection between the attempt and any particular crime; in which case, as has been seen, such attempts are not cognizable by the penal law. On the other hand, when an attempt stands in such connection with a projected, deliberate crime, that the crime, according to the usual and likely course of events, will follow from the attempt, then the attempt is an offence for which an indictment lies. Now it is a familiar principle of criminal pleading, that when an act is only indictable under certain conditions, then these conditions must be stated in the indictment in order to show that the act is indictable. Nor does it make any difference that the offence is made so by statute. Thus statutes make indictable revolts and obtaining goods by false pretences; yet an indictment, charging simply that the defendant "made a revolt," or obtained goods under false pretences," would be scouted out of court. On the same reasoning, in an indictment for an attempt to commit a crime, it is essential to aver that the defendant did some act, which, directed by a particular intent, to be averred, would have apparently resulted, in the ordinary and likely course of things, in a particular crime. 1 R. v. Johnson, 1 L. & C. 489, 1880; State v. Brannan, 3 Nev. 238, 1862. 1869; State v. Colvin, 90 N. C. 190, 2 See Lewis v. State, 35 Ala. 380, 1882; Anthony v. State, 29 Ala. 27, 1862. 3 Cumulation of incidents in this relation does not vitiate. State v. Hayes, 78 Mo. 243, 1883; State v. Thomas, 63 Cal. 544, 1882. 1856; Beasley v. State, 18 Ala. 535, 1850; Trexler v. State, 19 Ala. 21, 1851; Lewis v. State, 35 Ala. 380, 1862 (under a special statute); State v. Johnston, 11 Tex. 22, 1853; Kinningham v. State, 120 Ind. 322, 1890. 4 Whart. Cr. Pl. & Pr. 151. 5 Ibid. 151-2. Infra, 1227. The question, it should be remem6 See, as sustaining the conclusions bered, depends largely on the conof the text, R. v. Marsh, 1 Den. C. C. struction of the statute. In Massa505; R. v. Powles, 4 C. & P. 571, 1831; chusetts, it is not necessary, in an U.S. v. Ulrici, 3 Dill. 532, 1875; State indictment for an attempt to commit v. Wilson, 30 Conn. 500, 1860; Ran- a crime, within the Rev. Stat. c. 133, dolph v. Com., 6 S. & R. 398, 1821; 12, that it should be directly charged Clark's Case, 6 Gratt. 675, 1849; that the act attempted was a crime Thompson v. People, 96 Ill. 158, punishable by law, provided it appear § 193. The cumulation of facts, therefore, to show the criminal character of the intent, is not duplicity. Thus a Massachusetts indictment under Rev. Stat. 133, § 12, is not bad for duplicity, when, besides setting forth an "attempt" facts not duplicity. to set fire to a building, it avers a breaking and entering Cumula tion of 1882, cited infra, & 582. In Pennsylvania, the same rule exists in reference to common law indictments for attempts. Randolph v. Com., 6 S. & R. 398, 1821. In the same State, an indictment charging that S. A., on, etc., "in the night-time of the said day aforesaid, at, etc., did attempt to commit an offence prohibited by law, to wit, with force and arms, with an axe, etc., with a wicked intent on the to be so from the fact alleged. In an indictment for an attempt to burn a building, it is not necessary to describe the combustible materials used for the purpose. Com. v. Flynn, 3 Cush. 529, 1849. See Com. v. McDonald, 5 Cush. 365, 1850; Com. v. Sherman, 105 Mass. 169, 1870. An indictment has been sustained which charged that the defendant, with intent to steal the personal property of a certain woman, the property "being in her pocket dwelling-house of D. H., etc., in the and on her person," did "thrust, in- night-time, feloniously and burglarisert, put, and place his hand upon ously did break and enter, and with the dress, near and into the pocket of the intent with the said axe to open the said woman, without her knowl- and enter," etc., and steal, "but said edge, and against her will," etc. S. H. did then and there fail in the Com. v. Bonner, 97 Mass. 587, 1867. perpetration of said offence," was held And the Supreme Court of the United good as an indictment for an attempt States (U. S. v. Simmons, 96 U. S. to commit burglary at common law. 360, 1877) has held that in an indict- Hackett v. Com., 15 Pa. 95, 1850. But ment for soliciting or inciting to the see Mears v. Com., 2 Grant, 385, 1863. commission of a crime, or for aiding In England an indictment stated or assisting in its commission, it is that the prisoner "did unlawfully not necessary to state the particulars attempt and endeavor fraudulently, of the incitement or solicitation, or of the aid or assistance. Harlan, J., citing Whart. C. L. 7th ed. § 292; U. S. v. Gooding, 12 Wheat. 460, 1827; Ulrici, 3 Dill. 535, 1875. See, to same effect, State v. Dent, 3 Gill & U.S. v. J. 8, 1830. tute an falsely, and unlawfully to obtain from the Agricultural Cattle Insurance Company a large sum of money, to wit, the sum of £22 10s., with intent thereby then and there to cheat and defraud the said company," etc. It was held: 1st. That the nature of the attempt was not sufficiently set forth; 2d. That the indictment did not contain facts amounting to a statement of a misdemeanor, as the money was not laid to be the property of any one. R. v. Marsh, 1 Den. C. C. 505, 1848. See, also, R. v. Cartwright, R. & R. 106, 1810. attempt to commit the offence It is enough in England to charge mentioned in the indictment." See that the defendant "the goods and Ridenour v. State, 38 Ohio St. 292, chattels of C. D., in the dwelling of the building.1 Hence the attempt may be alleged to be to commit more offences than one.2 III. JURISDICTION. § 195. The question of jurisdiction, when an attempt is pursued through two or more distinct sovereignties, is elsewhere discussed.3 It is clear that such attempt is cognizable in the place Attempts cognizable where, if not interrupted, it would have been executed ;* and from the very nature of things, it must be cognizable in the place where the preliminary overt acts constituting the attempt are committed." in place of consummation. Intent to IV. EVIDENCE. § 196. As in consummated crimes the intent, which is here essential, may be inferred by the jury from facts. Thus when be inferred an indictment alleges that a party attempted to set fire to from facts: a dwelling-house, with intent to burn it, by attempting to set fire to another building, the jury are authorized to infer the alleged intent from the evidence of the attempt to set fire to the other building. It has been ruled, however, where a prisoner burned a hole in the guard-house where he was confined, in order to escape, and with no intent to consume or generally injure the building, that this was not an attempt to burn the house. And it is settled that house of the said C. D., situate in the borough of B., did attempt feloniously to steal, take, and carry away." R. v. Johnson, 1 L. & C. 489, 1862. See R. v. Bullock, Dears. 653, 1855; R. v. Marsh, 1 Den. C. C. 505, 1848; 3 Cox C. C. 570. So also in New York and North Carolina. People v. Bush, 4 Hill, 133, 1843; State v. Utley, 82 N. C. 556, 1883. And so in Missouri. State v. Hughes, 76 Mo. 323, 1882. Contra, State v. Wilson, 30 Conn. 500, 1861; Clark's Case, 6 Gratt. 675, 1849. In State v. Womack, 31 La. An. 635, 1879, it was held not enough to aver that the defendant "attempted" to commit a larceny. 2 Ibid.; R. v. Fuller, 1 B. & P. 180; State v. Graham, 51 Iowa, 72, 1879. 3 See infra, & 288. R. v. Collins, L. & C. 471; 9 Cox C. C. 497, 1864. 5 Griffin v. People, 26 Ga. 493, 1860. See supra, 176; R. v. Howlett, 7 C. & P. 274, 1836; R. v. Jones, 9 C. & P. 258, 1840; People v. Scott, 6 Mich. 287, 1859; Bell v. Com., 88 Va. 365, 1892; Rafferty v. State, 91 Tenn. 655, 1891. 7 Com. v. Harney, 10 Metc. 422, 1845. Jenkins v. State, 53 Ga. 33, 1874. 9 But see Luke v. State, 49 Ala. 30, 1 Com. v. Harney, 10 Metc. 422, 1873. 1845. there can be conviction of an attempt to murder, unless an intent to kill be specifically shown.' Whether when the intention is to hurt B., and the hurt falls on C., the defendant is indictable for an attempt to hurt C., has been already incidentally noticed. But whatever may be said on this difficult question, we may regard it as settled, that when the indictment avers an attempt to do a particular act, there is a fatal variance if the act proved does not logically fall within the range of the act laid.3 tion makes § 197. If the instrument by which an attempt is effected Adaptais apparently adapted to the end (e. g., a gun to shooting), a prima this is a sufficient prima facie case. The defendant facie case. must prove that the gun was not loaded and known not to be so.* V. PRINCIPALS AND ACCESSARIES. § 198. All confederates in the attempt, whether present or absent at the overt acts, are responsible as principals, when the attempt is a misdemeanor." All confederates are principals. Hence an averment that three joint defendants, in an indictment for an attempt at larceny, "put their hands" into the prosecutor's pocket, may be sustained by evidence that while all participated in the act, only one put his hand in the pocket. Kelly, 1 C. & Dix, 186, 1841; R. v. Mogg, 4 C. & P. 364, 1830; State v. Boyden, 13 Ired. 505, 1853; Ogletree v. State, 28 Ala. 693, 1856; People v. Woody, 48 Cal. 80, 1874; State v. Fallon, 2 N. D. 510, 1892. 1 State v. Neal, 37 Me. 468, 1854; R. v. Sullivan, C. & M. 209; R. v. Reed v. Com., 22 Gratt. 924, 1872; Seitz v. State, 23 Ala. 42, 1853; Simpson v. State, 59 Ala. 1, 1878; Morman v. State, 24 Miss. 54, 1852; State v. Stewart, 29 Mo. 519, 1859; Wilson v. State, 4 Tex. App. 637, 1879; infra, 641. This point is further illustrated under Caldwell v. State, 5 Tex. 18, 1849. the statutes making specific intents Supra, 182. It is for the jury to denecessary to murder in the first de- termine whether the instrument used gree, infra, i 384. There is no such (e. g., a stone) was a dangerous weapon offence as assault with intent to com- under the circumstances in which it mit involuntary manslaughter. Ste- was used. Regan v. State, 46 Wis. State, 91 Tenn. 726, 1894. Supra, 109-120, on indictment for assault with intent to murder. Where the evidence showed a wound vens v. 2 256, 1879. 5 R. v. Wyatt, 39 L. J. M. C. 83; R. v. Hapgood, L. R. 1 C. C. 221, 1869; Uhl v. Com., 6 Gratt. 706, 1849. in the knee there is no presumption Infra, & 223. that defendant aimed at the knee, so 6 Com. v. Fortune, 105 Mass. 592, as to reduce the grade of the offence. State v. Postal, 83 Iowa, 460, 1891. 1870. Infra, & 645 a. If the attempt is a felony, co-defendants are responsible according to the laws of principal and accessary.1 At common law no of an at tempt on VI. VERDICT. § 199. The topic of verdict, in cases where an assault or attempt is proved on an indictment for a greater offence (e. g., mverdict felony), is elsewhere noticed. It may now be specially stated, that while by the old common law there can be an indict- technically no conviction of an attempt on a count for completed felony, this power is given to juries in many jurisdictions crimes. by statute. But unless the attempt be averred in the indictment, there can be no conviction of the attempt on statutes which simply give power to convict of minor offences inclosed in major.* ment for It has been held in England, that under an indictment charging H. with rape, and U. with aiding and abetting, H. could be convicted under the stat. 32 & 33 Vict. c. 29 of attempting to commit the rape, and U. of aiding him in the attempt.5 Whether an attempt merges in a consummated crime is hereafter considered." Punishment less than that of consum mated VII. PUNISHMENT OF ATTEMPT. § 200. For the reasons heretofore given, the punishment of an attempt should be less than that of the consummated crime. The attempt involves neither the duration of preshould be meditation nor the obduracy of purpose, which belong to the crime when complete. And the policy of the law is, by assigning more lenient punishment to the incomplete offence, to arrest offences in the process of completion. This view, so long neglected in English law, and which English and American judges, acting on what is called the preventive policy, even now sometimes lose sight of, is essential to a sound ethical jurisprudence.s crime. 1See R. v. Hapgood, L. R. 1 C. C. 221, 1869. 2 Whart. Cr. Pl. & Pr. ? 261. 3 Whart. Cr. Pl. & Ev. ?? 249-50, 465-7. So in N. Y. by Penal Code of 1882, 36. See R. v Bird, 2 Den. C. C. 94, 1850; R. v. Reid, 2 Den. C. C. 89, 1850; State v. Wilson, 30 Conn. 500, 1861; Hill v. State, 53 Ga. 125, 1874; Wolfv. State, 41 Ala. 412, 1868; State v. Frank, 103 Mo. 120, 1891. |