are mere preparations, indifferent in their character, and do not advance the conduct of the party far enough to constitute an attempt.39 "Between preparations for the attempt and the attempt itself," it has been said, "there is a wide difference. The preparation consists in devising or arranging the means or measures necessary for the commission of the offense; the attempt is the direct movement towards the commission after the preparations are made." 40 It is said by

peared that he intended to contract a marriage with his niece, that he eloped with her for that purpose, and that he requested a third person to get a magistrate to perform the ceremony. On appeal, the judgment was reversed on the ground that this was mere preparation.

In State v. Lung, 21 Nev. 209, 37 Am. St. Rep. 505, it was held that an attempt to administer cantharides to a Woman, with intent to have intercourse with her by this means, was not an attempt to rape, even conceding that having intercourse by this means would constitute rape.

One who starts out with a loaded gun to hunt game in close season is not guilty of an attempt to kill game. His conduct does not go beyond mere preparation. Cromwell v. Fraternal Accident Ass'n., 6 N. D. 201.

39 See the cases above cited.

40 People v. Murray, 14 Cal. 160.

Wharton: "To make the act an indictable attempt, it must go so far that it would result in the crime unless frustrated by extraneous circumstances." 41

124. Acts Going beyond Mere Preparation.

If a man goes further than mere preparation, and does an act that is not indifferent in itself, but tends directly towards the commission of the crime intended, and which will apparently result in its commission unless frustrated by extraneous circumstances, he is guilty of an attempt. The act done need not be the last proximate act towards the consummation of the intended crime.42 Thus, one who mixes poison with food, and places it on a table with the intent that another shall take it, or who pours coal oil on a house with intent to commit arson, or who turns or seizes the knob of a door with intent to enter and steal, is in each case guilty of an attempt to commit the intended crime, though he is prevented from proceeding further or abandons his evil purpose.43

41 1 Whart. Crim. Law (10th Ed.) § 181.

42 Reg. v. Cheeseman, 9 Cox, C. C. 100, Leigh & C. 140; Glover v. Com., 86 Va. 382, Beale's Cas. 133; Uhl v. Com., 6 Grat (Va.) 706; State v. Smith, 80 Mo. 516.

125. Mere Solicitation.

View That Solicitation is an Attempt.There are some cases in which the mere solicitation of another to commit a crime has been held indictable as an attempt to commit. the crime, on the theory that mere solicitation is sufficiently an act done-"a step in the direction of the crime"-to constitute an at

43 Reg. v. Bain, 9 Cox, C. C. 98; People v. Lawton, 56 Barb. (N. Y.) 126; Mullen v. State, 45 Ala. 43, 6 Am. Rep. 691.

In Reg. v. Cheeseman, 9 Cox, C. C. 100, Leigh & C. 140, the defendant had laid aside some of his employer's goods, with the intent to carry them off when he should have an opportunity, but was detected before he could do so. He was held guilty of an attempt to commit larceny.

In Reg. v. Eagleton, Dears. C. C. 515, the defendant was held guilty of an attempt to obtain money by false pretenses, where he had contracted to deliver goods, and had, by false pretenses, obtained credit for more than he had delivered, but was not paid because of discovery of the fraud.

In Rex v. Scofield, Cald. 397, setting a lighted candle under a stairway with intent to burn the house was held an attempt to commit arson. And see McDermott v. People, 5 Park. C. R. (N. Y.) 102.

It has been held that merely to point a loaded pistol or gun at another is not a sufficient act to

tempt.44 Thus, it has been held that taking an impression of a key, and preparing a false key, 45 with intent to break and enter a store through the agency of another person, and sending the key to him and soliciting him to do the act, is an attempt to commit larceny from the store.46 And it has been held that soliciting another to commit arson, and offering him a match for the purpose, is an attempt to commit arson.47

Prevailing Doctrine is to the Contrary.This view, however, has been repudiated by most of the courts in which the question has

constitute an attempt to discharge the weapon, though it is cocked, and the party has his finger on the trigger, and expresses at the time an intention to shoot. Reg. v. Lewis, 9 Car. & P. 523; Reg. v. St. George, 9 Car. & P. 483. This, however, seems to be going too far. See State v. Shepard, 10 Iowa, 126; State v. Smith, 2 Humph. (Tenn.) 457; State v. Cherry, 11 Ired. (N. C.) 475.

44 See the language of the different judges in Rex v. Higgins, 2 East, 5, quoted in the opinion of the court in Walsh v. People, 65 Ill. 58, 16 Am. Rep. 569, Beale's Cas. 128, 129.

45 Thus far it was clearly mere preparation. Ante, § 123.

46 Griffin v. State, 26 Ga. 493.

47 People v. Bush, 4 Hill (N. Y.) 135; State v. Bowers, 35 S. C. 262, 28 Am. St. Rep. 847.

arisen, and the better opinion is that solicitation to commit a crime is not an attempt. It is not an act done with intent to commit a crime, and which would apparently result in the commission of the contemplated crime, unless frustrated by extraneous circumstan

ces.

When punishable at all, it is punishable as a distinct misdemeanor.48 In a leading Pennsylvania case it was held that delivering poison to a person and soliciting him to give it to another was not punishable under a statute as "an attempt to administer poison," but a conviction was sustained under a count charging the solicitation as a distinct offense.49

There are many cases to substantially the same effect.50 Thus, it has been held, contrary to the case mentioned above, that soliciting another to commit arson and furnishing him with matches is not an at

48 Post, 130 et seq.

49 Stabler v. Com., 95 Pa. St. 318, 40 Am. Rep. 653.

50 Reg. v. Williams, 1 Car. & K. 589, 1 Den. C. C. 39; McDade v. People, 29 Mich. 50; State v. Harney, 101 Mo. 470; State v. Butler, 8 Wash. 194; Smith v. Com., 54 Pa. St. 209, 93 Am. Dec. 686; Com. v. Randolph, 146 Pa. St. 83, 28 Am. St. Rep. 782, Beale's Cas. 134. And see U. S. v. Stephens, 8 Sawy. 116, 12 Fed. 52, Beale's Cas. 130.