ATTEMPT TO COMMIT BURGLARY-CRIME NOT COMPLETE. R. v. MCCANN. [28 U. C. Q. B. 514.] In the Upper Canada Court of Queen's Bench, Easter Term, 1869. Attempt to Commit Burglary - Evidence. The prisoners being indicted for an attempt to commit burglary, it appeared that they had agreed to commit the offense on a certain night, together with one C., but C. was kept away by his father, who had discovered their design. The two were seen about twelve that night to come within thirteen feet of the house, towards a picket fence in front, in which there was a gate; but without entering this gate they went as was supposed, to the rear of the house, and were not seen afterwards. Afterwards, about two o'clock, some persons came to the front door and turned the knob, but went off, being alarmed, and were not identified. Held, that there was no evidence of an attempt to commit the offense, no overt act directly approximating to its execution; and that a conviction therefor could not be sustained. Criminal case reserved. The prisoners were indicted, for that they, on the night of the 18th of March last, unlawfully did attempt feloniously and burglariously the dwelling-house of E. Kerr, etc., to break and enter, with intent the money, etc., of the said E. Kerr in the said dwelling-house there feloniously and burglariously to steal, etc. At the trial at Toronto, before GWYNNE, J., it was proved that the prisoners and one Thomas Conran had agreed to break and enter the house of Mrs. Kerr, on the night of the 18th of March with intent to steal her money, the prisoner Jevons professing to know that Mrs. Kerr had money and where it was left, and it appeared that the three were to proceed from the prisoner Jevons' house to Mrs. Kerr's. Conran did not meet the prisoners at the time appointed; his father having heard of the intended offence detained him. The evidence upon which the question turned was that of the father, James Conran, who testified, that becoming acquainted with the intended robbery, he and two others, one being a constable, went to Mrs. Kerr's place, for the purpose of watching the parties, having first told Mrs. Kerr their object; that about a quarter past twelve, midnight, he saw two men enter a gate about fifty feet from the house; they came towards the house to a picket fence in front, in which there was a small gate; that they did not come nearer to the house than twelve or thirteen feet, nor did they pass the picket gate; they then went, as supposed, to the rear of the house, and they were not seen afterwards; that about five minutes past two o'clock some persons came round again to the front door and raised the knob. At this time Mrs. Kerr called out to put on some more fire, which the witness thought alarmed them, whoever they were, and the witness said that he had no doubt that the persons whom he first saw approach the house were the prisoners. On his cross-examination, he said the picket gate was open, but they, the two men seen at twelve o'clock, did not enter it; they looked pretty close at the house, and went round to the north side, and he saw them no more. When the handle of the door was moved, the witness was sitting at the same window; the parties at the door did not come through the picket fence; how they went away he did not see. One McGregor corroborated Conran in seeing the two men, but could not identify them. The learned judge entertained doubts as to the sufficiency of the testimony to support the act of attempting to commit the offense charged, and he left the case to the jury to say whether the prisoners committed the alleged offense, and whether they intended the criminal intent charged. The prisoners were convicted, and the question reserved was, whether, admitting the prisoners' intent to have been to commit the burglary, the evidence was sufficient in law to establish the intent charged, and whether, therefore, the conviction should stand. Bethune, Q. C., for the Crown, cited Russ. C. & M., Rex. v. Schofield,2 Rex. v. Higgins,3 Rex. v. Phillips.4 McMichael, for the prisoner. MORRISON, J., delivered the opinion of the court. We are of opinion that the conviction can not be sustained. The evidence discloses no attempt to commit the offense charged. No overt act to carry out that attempt. The bare fact that the prisoners were seen looking at the house at the distance of thirteen or fourteen feet is not of itself a crime, and although it may be said that they were near the premises upon the understanding previously entered into, yet there is no evidence of the fact. For all that appears, they may have changed their mind, and in the absence of their comrade went there with some other object or for some other purpose and not with the intent charged. If it had been proved that they attempted to enter the house, and were either interrupted or surprised in doing so, and made their escape, and that but for such surprise or interruption they could have carried out their design of stealing the money said to be in the house, there would have been evidence to go to the jury. The fact that about two o'clock in the morning some persons, not seen or identified, turned or raised the knob of a door was not evidence against the prisoners. All that was proved against the prisoners was an intention expressed on one occasion to commit the offense charged. The utmost that could be presumed against them was, that they approached the house with 1 (4th ed.) 84. 2 Cald. 400. * 2 East, 5. that intention, and went away without attempting to carry out their previous design. 2 As said by Cockburn, C. J., in Regina v. McPherson:1 "Attempting to commit a felony is clearly distinguishable from intending to commit it." The bare wish or desire of the mind to do an illegal act is not indictable: per LeBlanc, J., in Rex. v. Higgins, and as laid down by Lord Mansfield in Rex. v. Schofield: "So long as an act rests in bare intention, it is not punishable by our laws; but immediately when an act is done, the law judges, not only of the act done, but of the intent with which it is done." The whole subject is discussed at length in these two cases. 5 as, In the case of Regina v. Taylor, 4 where the prisoner was indicted for an attempt to set fire to a stack, and it appeared in evidence that, after threats to burn the prosecutor out, he was seen to go to a neighboring stack, and kneeling down close to it struck a lucifer match, but discovering that he was watched blew it out and went away, Pollock, C. B., told the jury that if they thought that the prisoner intended to set fire to the stack, and that he would have done so if he had not been interrupted, this was in his opinion a sufficient attempt to set fire to the stack, within the meaning of the statute. "It was clear," he said, "that every act committed by a person with the view of committing the felonies therein mentioned, was not within the statute; for instance, buying a box of lucifer matches with intent to set fire to a house. The act must be one immediately and directly tending to the execution of the principal crime, and committed by the prisoner under such circumstances that he has the power of carrying his intention into execution. If two persons were to agree to commit a felony, and one of them were, in execution of his share in the transaction, to purchase an instrument to be used in the felonious act, that would be a sufficient overt act in an indictment for conspiracy, but not in an indictment of this nature." So in this case, the act of approaching the house would not be an act sufficiently proximate and directly tending to the execution of the offense charged. We also refer to the case of The Queen v. Collins et al., and Dugdale v. The Queen.7 We are of the opinion that the conviction can not be sustained, and that an entry be made on the record that the prisoners ought not to have been convicted. ATTEMPT-ILLEGAL SALE-NON-DELIVERY OF GOODS. PULSE V. STATE. [5 Humph. 108.] In the Supreme Court of Tennessee, September Term, 1844. Illegal Sale - Delivery of Goods Intercepted. —A statute made it illegal and indict. able to sell spirits to a slave. P. sold a slave a barrel of whisky, which was intercepted before it was delivered to the slave. Held, that P. was not indictable. Pulse was indicted in the Circuit Court of Jefferson County for selling one quart of whiskey, to a slave without the permission of the master of said slave. The case was tried at the April term, 1843, by Judge ROBERT M. ANDERSON, and a jury. It appeared that Pulse had sold a barrel of whiskey to the slave without the consent of his master, and had employed an agent to deliver it to him. The whisky was, however, intercepted before it was delivered. The judge charged the jury that a sale without delivery would complete the offense created by the act of 1842; that the Legislature intended by the passage of the act to cut up by the roots all traffic with slaves in intoxicating liquors, and that this object would be best promoted by this construction of the statute. The jury found the defendant guilty, and a motion for a new trial having been overruled, the defendant was sentenced to be imprisoned one week, and fined five dollars. From this judgment he appealed. Cocke, for the plaintiff in error. Attorney-General, for the State. TURLEY, J., delivered the opinion of the court. Elijah Pulse was indicted and convicted of the offence of selling spirituous liquors to a slave. Upon the trial, it appeared that he had contracted to sell, but had not delivered the spirits to the slave; and the question is, whether such contract of sale, which is not completed by delivery, is indictable. It is contended that it is; that the statute of 1842,1 prohibits the sale of spirituous liquors to a slave, and makes such sale an indictable offense; that a delivery is not necessary to constitute a valid sale, but that upon a contract to sell for a price agreed upon, the sale is good and may be enforced upon the payment or tender of the consideration, though no delivery has been made. This reasoning is true in the abstract, but to apply it to the one under consideration, would be reductio ad absurdum; the principle is only applicable to cases of legal contract, which can be enforced in courts of justice. 1 ch. 141. Here there is no such contract because (1st), it is made with a slave who has no power to contract; and (2d) it is made in direct violation of the provisions of the statute; it is, therefore, void and no contract at all. Again: The evil intended to be suppressed by the statute, was the consumption of spirits by slaves to the detriment of their moral character, and the danger of the peace of the community. A contract of sale without a delivery could by no possibility be attended with such evils, nor any other within the meaning and purview of the law. But lastly, the statute provides, that the offense shall be indictable, though the spirits sold be not drunk nor intended to be drunk at the place where sold. How could they be drunk, or be intended to be drunk, at the place where sold or drank without a delivery, one can not understand. Upon the whole view of the case, then, we are of the opinion, that it is the fair and legal construction of the statute, that a contract to sell spirits to a slave, which is not completed by delivery, is not indictable under its provisions. Judgment reversed and the case remanded for a new trial. ATTEMPT-SOLICITATIONS-ARSON. MCDADE v. PEOPLE. [29 Mich. 50.] In the Supreme Court of Michigan. In a Statute which Provides that "every person who shall set fire to any building, * or to any other material with intent to cause any building to be burned, or shall, by any other means, attempt to cause any building to be burned," the words, "by any other means" must be construed to mean by any other means of a like nature; and an attempt to cause a building to be burned by soliciting a third person to set fire to it, and furnishing him with the materials, is not within the statute. ERROR to Alpena Circuit. Atkinson & Hawley, for plaintiff in error. Byron D. Ball, Attorney-General, for the People. GRAVES, C. J. This is a writ of error to the Circuit Court for the county of Alpena. The plaintiff in error was convicted and sentenced to the State prison upon the following charge, as embodied in the second count of the information filed against him by the prosecuting attorney: "And said prosecuting attorney further gives said court to understand and be informed that heretofore, to wit: On the first day of May, |