§ 252. Larceny - Picking Pocket- Nothing in Pocket. Where a person put his hand in a person's pocket intending to steal his purse, but there was no purse there, it was held that he could not be convicted of an attempt to steal the purse.1 In 2 East's Pleas of the Crown, there is this passage: "One had his keys tied to the strings of his purse in his pocket, which Elizabeth Wilkinson attempted to take from him, and was detected with the purse in her hand, but the strings of the purse still hung to the owner's pocket by means of the keys. This was ruled to be no asportation; the purse could not be said to be carried away, for it still remained fastened to the place where it was before." So, where A. had his purse tied to his girdle, and B., in attempting to rob him, in the struggle the girdle broke, and the purse fell to the ground, B. not having previously taken hold of it, nor picking it up afterwards, it was ruled to be no taking. In the conference upon Cheny's Case, above referred to, Eyre, B., mentioned a case before him where goods in a shop were tied to a string which was fastened by one end to the bottom of the counter. A thief took up the goods and carried them towards the door as far as the string would permit, and was then stopped. This was held not to be a severance, and consequently no felony. In a New York case where a boy attempted to steal a hat from a store-door, which the owner, suspecting, had previously tied down, he was held not guilty of larceny."

ence.

§ 253. Mailing Obscene Literature-Person Addressed not in ExistA person is not guilty of sending through the mails literature "giving information" of an indecent and prohibited character where the answer is sent in answer to a fictitious letter of inquiry."

§ 253a. - Attempt - Maliciously Throwing Stone at Railroad Car with Intent to Injure Person Thereon No Person in Car Struck. -In R. v. Court, the prisoner was indicted for feloniously, willfully, and maliciously, casting and throwing a stone against, into, at, and upon a certain tender then being used upon the Midland Railway, with intent to endanger the safety of certain persons then being upon such engine and tender; against the form of the statute in such case made and provided.

There were other counts in the indictment, charging the prisoner with throwing the stone against, etc., a certain "tender and engine," and against certain carriages.

The evidence was, that the prisoner, while standing on a bridge, threw a stone over the parapet wall, while a train was passing underneath, the stone fell upon the tender of the engine. It appeared that there was no person on the tender at the time; the engine and stroker being upon the engine. At the close of the case for the prosecution,

Rupert Kettle, for the prisoner, objected that no offense had been proved within the terms of the statute under which the prisoner was indicted. The statute, enacts that "if any person shall willfully and maliciously cast, throw, or cause to fall, or strike against, into or upon any engine, tender, carriage or truck used upon any railway, any wood, stone, or other matter or thing,

with intent to endanger the safety of any person being in or upon such engine, tender, carriage, or truck, every such offender shall be guilty of felony," The statute, therefore, contemplates a state of facts when a stone or other thing is thrown against any engine, tender, carriage or truck, and strikes it, and when, at the time it so strikes, there is some person or persons upon the engine, tender, or other carriage so struck. Here the tender was the carriage struck, and there was no person upon it at the time, the engineer and stroker being upon the engine. It could not be said, therefore, that the prisoner had struck the tender with intent to endanger the safety of any person being in or upon such tender. The offense, therefore, does not fall within the act.

Huddleston and Scotland for the prosecution, contended that the words "cast" and "thrown against" met the present case, and it was not necessary in order to be within the words of the statute, that the stone or other implement used, should actually come in collision with the part of the train in which any persons were. The word "against " must be taken to include "at." It was sufficient if the stone was cast or thrown at the time with intent to endanger the safety of any person in the train, although it actually struck the tender or other part of the train in which no person happened to be at the time. The intent was a question for the jury. Even if, to satisfy the statute, it was necessary that the stone should actually strike the train, it was immaterial whether the persons in the train, to endanger whose safety the act was done, were on the engine, tender, carriage, or truck.

Kettle, in reply: The words "cast," "thrown" and "against," were not capable of the construction contended for, as the subsequent words "into" or upon "clearly limited the section to the case of an actual striking. And to say that the statute applied to the case of striking a tender, no person being thereon, was directly in the teeth of the words of the section.

CROMPTON, J., said that he thought the objection must prevail, as whatever might be the intention of the Legislature, the words of the section were clearly limited to the case of anything thrown upon an engine or carriage containing persons therein. He would, however, consult Mr. Justice COLERIDGE sitting in the other court.

The learned judge having retired for that purpose, said, on his return, that Mr. Justice COLERIDGE agreed with him in opinion that the objection was well sustained, and that no offense within the statute being established, the prisoner was entitled an acquittal.'

Verdict, not guilty.

§ 254. Personating Voter - Attempt - Party Personated not in Existence. — In R. v. Tannet,1 the prisoner was tried before Mr. Baron Wood, at the Spring Assizes for the County of Kent, in the year 1818, on an indictment charging him with willfully and knowingly personating and falsely assuming, the name and character of Peter McCann, a person entitled to prize money for and in respect of his services performed on board of a ship of His Majesty, called the Tremendous, in order to receive such prize money, with intent to defraud the commissioners and governors of the Royal Hospital for seamen at Greenwich, against the form of the statute in that case made and provided. There was another count in the indictment the same as the above, with this variance only, viz. it stated Peter McCann as a person supposed to be entitled, etc., and

1 R. & R. 352 (1818).

for services supposed to be performed, etc. It appeared by the Tremendous' prize list and the muster book of the Tremendous, produced by the proper officers of Greenwich Hospital, that there was a person of the name of Peter McCarn entitled to prize money; but no person of the name of Peter McCann. The learned judge doubted, whether on this variance in the name he ought not to have directed an acquittal; and reserved this point for the consideration of the judges. He desired the jury to say, whether the prisoner meant to personate Peter McCann; and they found he did, and returned the verdict of guilty. The judgment was respited to take the opinion of the judges on the point reserved. In Easter term, 1818, the judges met and considered this case. They were of opinion, that the "personating" must apply to some person who had belonged to the ship, and that the indictment must charge the personating of some such person; as that was not the case here, they held the conviction wrong.

§ 255. Attempt - Interruption before Completion of Act.- Where a person intending to commit a crime is interrupted before he does or completes the act he is not guilty of attempting to commit a criminal act. Therefore

§ 256.

Betting-Horse Race which Does not Come Off. — To bet on a horse race, where the race does not come off, is not indictable as gaming.1

§ 257. Burglary — Interruption. - Where persons who had agreed to and intended to break into a house, went there, but before they had broken in became alarmed and fled, they were held not guilty of attempting to commit burglary."

§ 258. Concealing Birth of Child-Interruption.-In R. v. Snell, Sarah Snell was indicted for endeavoring to conceal the birth of her child. She was found going across a yard towards a privy with a bundle, and was stopped. The bundle contained the body of a child. GURNEY, B., said the prisoner could not be convicted, the offense not being completed. The body, under the statute, must be buried or otherwise disposed of, to bring the case within the act. Here she was interrupted in the act probably of disposing of the child, but the act was incomplete. She was acquitted.

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§ 259. Illegal Sale — Interruption. - And where a statute prohibited persons from selling spirits to a slave, but the prisoner sold a barrel of spirits to a slave, but before it was delivered the negotiation was interrupted and abandoned, he was adjudged not guilty of an attempt.*

§ 260. Attempt to Kill-Interruption.-R. v. Delaney, tried in Ireland, in 1883, and reported in the Irish Law Times, was a case where the prisoner, intending to shoot a judge, desisted when he saw that the judge was protected, and that he was watched. The indictment was (1) for that, on the 11th of November, 1882, having in his possession certain loaded arms - to wit, a pistol called a revolver-he unlawfully, maliciously, and feloniously did place his hand upon same, and endeavor to draw same from his pocket, and did thereby attempt to dis

1 Dobkins v. State, 2 Humph. 424 (1841).

2 R. v. McCann, 28 U. C. Q. B. 514 (1869). 82 M. & Rob. 44 (1857).

Pulse v. State, 5 Humph. 108 (1844). 5 Jan. 2, 1883.

charge same at the Right Hon. James Anthony Lawson, with intent feloniously to kill and murder him against the form of the statute, etc.; (2) that on the day in the year aforesaid, he unlawfully, maliciously and feloniously did attempt to discharge a certain loaded fire-arm, to wit—a pistol called a revolver-then being loaded with gunpowder and ball, at and against the Right Hon. James Anthony Lawson, with intent to commit murder, against the form of the statute, etc.; and (3) that on the day in the year aforesaid, he unlawfully and feloniously did procure and place in the pocket of his coat a certain loaded pistol called a revolver, loaded with gunpowder and ball, and being so possessed of same did proceed up and towards the Right Hon. James Anthony Lawson, and did place his hand on said revolver, and endeavor and proceed to draw same from his said pocket in order to, and with intent to, discharge same at and against the said Right Hon. James Anthony Lawson, and did thereby attempt and intend feloniously to kill and murder the said Right Hon. James Anthony Lawson. The prisoner having pleaded not guilty, the Solicitor-General then opened the case for the prosecution, stating the facts as follows: On November 11, 1882, Judge Lawson left his house in Fitzwilliam Place about five minutes past five o'clock, on foot, accompanied by his son, a young lad, and followed on the same side on which he was proceeding himself by two police constables of the B Division, Lalor and Brennan, who wore plain clothes. On the opposite side of the street there walked two police constables in aid, named Charles M'Donnell and George Darker, men who had not been engaged in police service before, and probably for that reason were not known to people like the prisoner. The prisoner was believed to be a working carpenter, and on that evening-it was a foggy and drizzly evening-he was observed by a man, who would be produced, to be loitering for over half an hour in the neighborhood of Fitzwilliam Square, through which Judge Lawson was to pass. He was identified by a cabman upon the rank on the northeast corner of Fitzwilliam Square, who, in fact, bid the prisoner "good evening," and received no answer. He observed him loitering in the dark without any conceivable reason except that he was lying in ambush for the learned judge. Mr. Justice Lawson and his son, followed by the two constables behind, passed down Fitzwilliam Square and along the east side of Merrion Square, crossed at the end of Lower Mount Street, and then walked along Merrion Square north. The two constables in aid as he termed them, kept to the opposite side of the square, that was the garden side, and as they came up to about No. 11, the prisoner passed McDonnell and Darker on the side they were on, and as he passed he touched one of them, M'Donnell, upon the sleeve, and said to him, "It's all right," or some thing to that effect. M'Donnell did not know him before, neither did Darker, and he (the Solicitor-General) would ask the jury to infer that the prisoner did not know them, He might have known the other constables who were following immediately behind the judge, although they were in plain clothes; but he did not know or suspect that the other two parties who were on the other side of the road had anything to do with the personal protection of the learned judge. M'Donnell, when he went past, instantly gave a command to Darker, who dropped behind, and they proceeded in that order, keeping an eye on the prisoner in front of M'Donnell until they came to the corner of Clare Street. Judge Lawson and his son crossed over from Merrion Square to the corner of Clare Street, to the opposite side of that which he had been on in Merrion Square, and the two Metropolitan police after him, proceeding that way down until they almost reached Kildare Street Club. In the meantime the prisoner at the bar and two

constables in aid crossed to the north side of Clare Street, and proceeding on the opposite side from the judge, that is to say, both parties changed from the sides on which they were when crossing. When they got the length of Kildare Street Club House, the prisoner got ahead, wheeled to the left, and crossed over at a rapid pace, coming up in front of the judge at a point almost under the bay window of the club. M'Donnell followed instantly, and saw him thrust his hand into his breast pocket as he faced the judge, whereupon he instantly knocked him down. Falling on top of him, he observed that the prisoner had his hand on the butt of a pistol and a struggle then ensued for the possession of the weapon, which Darker, who had meantime come to his assistance, took from Delaney. It was a formidable weapon, a revolver of extraordinary size and power, loaded in six chambers. On the way to the police station the pris oner threw away a small parcel, which was immediately picked up, and was found to contain seven other revolver catridges, exactly similar to those in the revolver. Referring back to the incident in Merrion Square, when he had spoken to M'Donnell passing, he (the Solicitor-General) would suggest this, the man did not premeditate a murder of this kind without the complicity of other 'persons, and the man who was told off for the purpose of assassination was, very probably, told at the same time that there would be other persons who would give him aid if necessary. In his (the Solicitor-General's) mind it was as plain as the sun at noonday that this man, having seen Judge Lawson's regular guard following him, and being dogged himself, on the opposite side of the street, by these two men whom he knew not, took it for granted that they were persons sent to assist him, and he gave them this signal that it would be all right. The idea of aid being at hand was not unlikely, for before the man crossed the street and went in front of the judge, he met another man to whom he spoke. A tram car came up afterwards, almost immediately, and was hailed by this unknown man. It slowed, but did not stop. Whether that man went in the tram or not they did not know."

After hearing this statement, the court held that the indictment was not sustained, and a nolle prosequi was entered.

In R. v. Brown,1 B. was indicted for attempting to discharge a loaded pistol at S. with intent to murder him. B. having a grudge against S. went to S.'s house when he was observed to draw a pistol from his pocket, by a third person who snatched it away. It was held that B. was possibly not guilty of an attempt within section 14 of 24 and 25 Victoria: 2 "Whoever shall by drawing a trigger or in any other manner attempt to discharge any kind of loaded arms at any person with intent to commit murder." And was certainly not within section 15 of the same statute which punishes every one "who by any means other than those specified in any of the preceding sections of this act attempts to commit murder."

1

§ 261. Attempt to Commit Arson. To solicit another to set fire to a house is not attempting to set fire to a building "by any other means," within the Michigan statute.3

§ 261a. Attempt to Commit Assault with Intent to Rape.-There is no such offense as an attempt to commit an assault with intent to rape.

1 15 Cox, 199 (1883).

2 ch. 100.

McDade v. People, 29 Mich. 50.

4 Brown v. State, 7 Tex. (App.) 569 (1880).