power of the legislature to punish the mere having possession of articles with intent to use them in the commission of crimes. Both in England and in this country statutes have been enacted punishing the bare possession, with criminal intent, of implements for coining, counterfeit money, burglars' tools, etc. 118. Act Intended as, but not Constituting, a Crime.

6

7

Since the law does not punish a mere criminal intent unaccompanied by a criminal act, a person who intends a particular crime, and thinks he is committing it, is not for that reason guilty, if his acts do not in fact amount to a crime.

Such a case arose during the Revolutionary War. An American, mistaking a corps of American troops for British, went over to them. It was held that the fact that he thought they were British did not make him guilty of treason. The same principle ap

S

5 See Rex v. Foster, 7 Car. & P. 495; Reg. v. McMillan, 1 Cox, C. C. 41.

See Reg. v. Williams, Car. & M. 259.

7 See Reg. v. Oldham, 2 Den. C. C. 472, 3 Car. & K. 249, 5 Cox, C. C. 551; Reg. v. Bailey, Dears. C. C. 244, 6 Cox, C. C. 241.

8 Respublica v. Malin, 1 Dall. (Pa.) 33, Beale's Cas. 127.

plies where a person obtains another's goods or money by making representations which he supposes to be false, but which happen to be true. And it would apply to a man forcibly having intercourse with his wife against her will, mistaking her for some other woman.10 Whether there may be a conviction for an attempt in such case is elsewhere considered.11

II. ATTEMPT TO COMMIT A CRIME.

119. In General.-As a general rule, any attempt to commit a crime is a misdemeanor at common law, whether the crime attempted be a felony or merely a misdemeanor, and whether it be a common-law or a statutory offense. But it has been held that the rule does not apply to statutory misdemeanors which are merely mala prohibita.

9 State v. Asher, 50 Ark. 427, Beale's Cas. 229; State v. Garris, 98 N. C. 733; People v. Reynolds, 71 Mich. 343; post, § 362.

The same is true where a person attempts to obtain another's property by false pretenses, but, for some reason, no injury results. See post, § 368.

10 Post, § 316.

11 Post, § 129.

An act which is not an offense at the time it is committed cannot become such by any subsequent independent act of the party, with which it has no connection. U. S. v. Fox, 95 U. S. 670, Beale's Cas. 227.

To constitute an indictable attempt to commit a crime, there must be:

1. An intent to commit that particular crime. 2. An act done in pursuance of such intent, which falls short of the actual commission of the crime. Neither the bare intent, without any act, nor mere preparation, is sufficient.

3. There must be at least apparent ability to commit the intended crime.12

120. What Attempts are Indictable.

(a) In General.-It is settled beyond any question that it is an indictable misdemeanor at common law to attempt to commit any crime, except as hereafter explained, whether the crime intended is a felony, as murder, rape, robbery, etc., or merely a misdemeanor, as cheating, forgery, etc., and whether it is

12 "An attempt, in criminal law, is an apparent unfinished crime, and hence is compounded of two elements, viz: (1) The intent to commit a crime, and (2) a direct act done towards its commission, but falling short of the execution of the ultimate design. It need not, therefore, be the last proximate act to the consummation of the crime in contemplation, but is sufficient if it be an act apparently adapted to produce the result intended. It must be something more than mere preparation." Per Lewis, P., in Glover v. Com., 86 Va. 382, Beale's Cas. 133, citing Uhl v.

a common-law or a statutory crime.1 13 "If an offense is made a misdemeanor by statute," said Parke, B., "it is made so for all purposes. There are many cases in which an attempt to commit a misdemeanor has been held to be a misdemeanor; and an attempt to commit a misdemeanor is a misdemeanor, whether the offense is created by statute or was an offense at common law."14

(b) Suicide. At common law, suicide was regarded as a crime, and was punished by forfeiture of goods and an ignominious

Com., 6 Grat. (Va.) 706; Hicks v. Com., 86 Va. 223, 19 Am. St. Rep. 891.

13 1 Whart. Crim. Law (10th Ed.) § 173 et seq.; 1 Hawk. P. C. c. 25, § 3; Rex v. Roderick, 7 Car. P. 795, Beale's Cas. 127; Smith v. Com., 54 Pa. St. 209, 93 Am. Dec. 686; Com. v. Barlow, 4 Mass. 439; State v. Boyden, 13 Ired. (N. C.) 505; State v. Jordan, 75 N. C. 27; Rafferty v. State, 91 Tenn. 655; Smith v. Com., 54 Pa. St. 209, 93 Am. Dec. 686; Hicks v. Com., 86 Va. 226, 19 Am. St. Rep. 891.

By statute in some states, an attempt to commit a felony is made a felony by being made punishable by imprisonment in the state prison. Rafferty v. State, 91 Tenn. 655; ante, § 3.

14 Rex v. Roderick, 7 Car. & P. 795, Beale's Cas.

burial; 15 and an attempt to commit suicide is a misdemeanor at common law.16

(c) Misdemeanors Merely Mala Prohibita. -It has been held that the rule that an attempt to commit a misdemeanor ds a misdemeanor does not apply to statutory misdemeanors that are merely mala prohibita, as selling cotton in the seed between sunset and sunrise,17 usury,18 selling intoxicating liquors, 19 etc. But the extent of this exception is not clear.20

(d) Attempt to Commit an. Attempt.There can be no such thing as an attempt to

15 Post, § 250.

16 Reg. v. Doody, 6 Cox, C. C. 463, Beale's Cas. 261. See, also, Com. v. Dennis, 105 Mass. 162; Com. v. Mink, 123 Mass. 422, 25 Am. Rep. 109.

Suicide is not now punished at all, and in Massachusetts, where the statute punishes attempts to commit "indictable offenses," it has been held that an attempt to commit suicide is not indictable in that state. Com. v. Dennis, supra.

V.

17 Whitesides State, 11 Lea (Tenn.) 474. And see Taylor v. State, 11 Lea (Tenn.) 708.

18 See Rex v. Upton, 2 Strange, 816.

19 Pulse v. State, 5 Humph. (Tenn.) 108. See also, Com. v. Willard, 22 Pick. (Mass.) 476.

20 See 3 Am. & Eng. Enc. Law (2d Ed.) 252.