attempt a crime.21 Since a simple assault, as we shall see, is nothing more than an attempt to commit a battery, and aggravated assaults are nothing more than attempts to commit murder, rape, robbery, etc.,22 there can be no such thing as an attempt to commit an assault, whether simple or aggravated.23

121. The Intent.

Obviously, there cannot be an attempt to commit a particular crime unless there is an intention to commit that crime. A general criminal intent is sometimes sufficient to render one guilty of a crime, but it is never sufficient to render him guilty of an attempt. The specific intent is absolutely essential.24 For example, to constitute murder, an intent to kill need not be shown. It is murder to

21 State v. Sales, 2 Nev. 268. 22 Post, §§ 200, 208.

23 Wilson v. State, 53 Ga. 205; People v. Thomas, 63 Cal. 482; White v. State, 22 Tex. 608.

24 Rex v. Boyce, 1 Mood. C. C. 29, Beale's Cas. 182; Rex v. Davis, 1 Car. & P. 306; Reg. v. Cruse, 8 Car. & P. 541; Reg. v. Donovan, 4 Cox, C. C. 399; Hall v. Com., 78 Va. 678; Sharp v. State, 19 Ohio, 379; Cunningham v. State, 49 Miss. 685; Lewis v. State, 35 Ala. 380; Simpson v. State, 59 Ala. 1, 31 Am. Rep. 1; Reagan v. State, 28 Tex. App. 227, 19 Am. St. Rep. 833.

kill a person while engaged in the commission of another felony, or in resisting a lawful arrest, or in doing a wanton act which has a natural tendency to cause death.25 But to constitute an attempt to murder, the specific intent to kill is necessary. 26 And the same is true of an attempt to commit any other crime, as rape,27 larceny,28 robbery,29 abortion,30 mayhem,31 etc.

25 Post, § 248.

26 Reg. v. Donovan, 4 Cox, C. C. 399; Simpson v. State, 59 Ala. 1, 31 Am. Rep. 1; Maher v. People, 10 Mich. 212; Pruitt v. State, 20 Tex. App. 129; Slatterly v. People, 58 N. Y. 354; Morgan v. State, 33 Ala. 413; post, § 208.

27 On a prosecution for attempt to rape, there must be a specific intent to have intercourse in such a way as will constitute rape,-by force and against the will of the woman. Lewis v. State, 35 Ala. 380; Carroll v. State, 24 Tex. App. 366; State v. Kendall, 73 Iowa, 255, 5 Am. St. Rep. 679; State v. Massey, 86 N. C. 658, 41 Am. Rep. 478; Charles v. State, 11 Ark. 389; post, § 208.

This does not apply where the girl is under the age of consent, so that want of consent is not necessary. Reg. v. Beale, L. R. 1 C. C. 10, 10 Cox, C. C. 157; State v. Pickett, 11 Nev. 255, 21 Am. Rep. 754; People v. McDonald, 9 Mich. 150. 28 Hall v. Com., 78 Va. 678.

29 Hanson v. State, 43 Ohio St. 376.

30 State v. Moore, 25 Iowa, 128, 95 Am. Dec. 776. 31 Rex v. Boyce, 1 Mood. C. C. 29, Beale's Cas.

Intent Inferred.—In a prosecution for an attempt, as in other cases where the intent is material, the intent need not be proved by positive or direct evidence. It may be inferred as a matter of fact, however—from the conduct of the party and the other circum

122. The Act in General-Intention and Attempt Distinguished.

To constitute an attempt to commit a crime, there must be something more than a mere intention to commit it. There is a clear distinction between intention and attempt.

The

182; Filkins v. People, 69 N. Y. 101, 25 Am. Rep. 143.

32 Scott v. People, 141 Ill. 195 (intent to procure abortion, inferred from use of instruments without any other apparent reason); State v. Grossheim, 79 Iowa, 75 (intent to commit rape, inferrable from conduct); Com. v. Hersey, 2 Allen (Mass.) 173, Beale's Cas. 183 (intent to kill, inferrable from administering poison or use of deadly weapon under such circumstances as to evince such an intent). See, also, as to inference of intent to kill, Rex v. Howlett, 7 Car. & P. 274; Jeff v. State, 37 Miss. 321, 39 Miss. 593. And as to intent to rape, see Lewis v. State, 35 Ala. 380; Carter v. State, 35 Ga. 263; Hays v. People, 1 Hill (N. Y.) 351; State v. Smith, 80 Mo. 516.

former indicates the purpose existing in the mind, while the latter indicates some act done in pursuance of the intent. Without an overt act there cannot be an attempt.3

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123. Preparation and Attempt Distinguished.

There is also a distinction, though it is not so very clearly defined, between preparation and attempt. For a man to make up his mind to commit a crime, and to make preparations to commit it, is not an attempt. He must go further than mere preparation, and do some act directly tending to a carrying out of his unlawful intent.34 Procuring or loading a gun, or buying poison, or walking to a particular place, with intent to kill another, is not enough to make one guilty of an

33 Reg. v. Roberts. Dears. C C. 539, 7 Cox, C. C. 39; U. S. v. Riddle, 5 Crauch (U. S.) 311, Beale's Cas. 311; People v. Murray, 14 Cal. 160; Stabler v. Com., 95 Pa. St. 318, 40 Am. Rep. 653; State v. Lung, 21 Nev. 209, 37 Am. St. Rep. 505; Com. v. Clark, 6 Grat. (Va.) 675; Cox v. People, 82 Ill. 191; Cunningham v. State, 49 Miss. 702. And see Lovett v. State, 19 Tex. 174.

34 Reg. v. Roberts Dears. C. C. 539, 7 Cox, C. C. 39; Reg. v. Eagleton, Dears. C. C. 515; U. S. v. Stephens, 8 Sawy. 116, 12 Fed. 52, Beale's Cas. 130; State v. Lung, 21 Nev. 209, 37 Am. St. Rep.

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attempt to commit murder.3 The same is true of a purchase of coal oil and matches with intent to commit arson,36 or the procuring of metal and dies with intent to commit the offense of counterfeiting money. 37 And so it is in many other cases. These acts

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35 Reg. v. Cheeseman, 9 Cox, C. C. 100, Leigh & C. 140; Reg. v. Williams, 1 Den. C. C. 39; Stabler v. Com., 95 Pa. St. 318, 40 Am. Rep. 653; Hicks v. Com., 86 Va. 223, 19 Am. St. Rep. 891.

36 Per Pollock, C. B., in Reg. v. Taylor, 1 Fost. & F. 511. And see McDade v. People, 29 Mich. 50. 37 Reg. v. Roberts, Dears. C. C. 539, 7 Cox, C. C. 39. Such an act is punishable, but not as an attempt. See ante, § 117.

38 In U. S. v. Stephens, 8 Sawy. 116, 12 Fed. 52, Beale's Cas. 130, the defendant was charged with an attempt to introduce spirituous liquors into Alaska, in violation of an act of congress. The evidence showed that he sent from Alaska, where he resided, to a wholesale dealer in San Francisco, an order for 100 gallons of whisky, to be shipped to him in Alaska. It was held that he was not guilty of an attempt to introduce the whiskey into Alaska, as he had done no act to carry out his illegal intent of which the law could take cognizance, the offer to purchase the whiskey being an act preparatory and indifferent in its character.

In People v. Murray, 14 Cal. 160, the defendant was convicted of an attempt to contract an incestuous marriage. From the evidence it ap