tempt to commit arson; 51 that soliciting a child under the age of consent to submit to sexual intercourse is not an attempt to rape; 52 and that soliciting another to commit incest or adultery is not an attempt to commit incest or adultery.53

126. Abandonment of Purpose.

If a man makes up his mind to commit a crime, and proceeds far enough to be guilty of an attempt, within the rules above stated, he does not purge himself of guilt by voluntarily abandoning his evil purpose. For example, if a man seizes a woman with intent to rane, he is none the less guilty of an attempt to rape because he repents and voluntarily desists.54 It is different, of course, if the evil purpose is abandoned before a sufficient act has been done to constitute an attempt.55 And voluntary abandonment, even after such an act has been done, may be evi

51 McDade v. People, 29 Mich. 50.

52 State v. Harney, 101 Mo. 470.

53 Cox v. People, 82 Ill. 191; State v. Butler, 8 Wash. 194; Smith v. Com., 54 Pa. St. 209, 93 Am. Dec. 686.

54 Glover v. Com., 86 Va. 382, Beale's Cas. 133; Lewis v. State, 35 Ala. 380.

55 Pinkard v. State, 30 Ga. 757.

dence tending to negative the intent charged.56

127. Adaptation of Means to Accomplishment of Purpose.

There has been considerable discussion in the cases as to the extent to which the means employed must be adapted to the accomplishment of the intended crime, in order to render one guilty of an attempt. It is clear that the means must not be obviously unsuitable. Thus, a person who should make an assault upon a dummy dressed as a woman, with intent to ravish, would not be guilty of a criminal intent to rape, for the law would not take cognizance of such an act, and the bare intent would not be punishable.57

The

same is true of presenting a weapon under such circumstances that it is obvious that no injury can be done.58 There must be at least an apparent possibility of committing the intended crime.59

56 State v. Allen, 47 Conn. 121; Harrell v. State, 13 Tex. App. 374. It is otherwise where the abandonment is involuntary. Reg. v. Bain, 9 Cox, C. C. 98; Taylor v. State, 50 Ga. 79.

57 See People v. Gardiner, 25 N. Y. Supp. 1072. 58 Tarver v. State, 43 Ala. 354.

59 Rex v. Edwards, 6 Car. & P. 521; Allen v.

By the overwhelming weight of authority, the means adopted need not be absolutely capable of accomplishing the intended crime. An apparent adaptation is sufficient. 60

128. Physical Impossibility to Commit Intended Crime.

It has been said that an attempt to commit a crime can only be made out when, if no interruption had taken place, the attempt could have been carried out successfully, and the intended crime committed; 61 and the rule has been applied in some of the cases.' This

62

Henry v. State,

State, 28 Ga. 395, 73 Am. Dec. 760; 18 Ohio, 32; Tarver v. State, 43 Ala. 354; State v. Clarissa, 11 Ala. 57; Sipple v. State, 46 N. J. Law, 197. And see the cases cited in notes following.

60 Rex v. Phillips, 3 Camp. 73; Reg. v. Brown, 24 Q. B. Div. 357; Reg. v. Goodall, 2 Cox, C. C. 41; Com. v. McDonald, 5 Cush. (Mass.) 365, Beale's Cas. 141; Com. v. Jacobs, 9 Allen (Mass.) 274; Hamilton v. State, 36 Ind. 280, 10 Am. Rep. 22; People v. Lee Kong, 95 Cal. 666, 29 Am. St. Rep. 165, Beale's Cas. 142; Mullen v. State, 45 Ala. 43, 6 Am. Rep. 691; and cases cited in notes following.

61 Reg. v. Collins. 9 Cox, C. C. 497, Beale's Cas. 137 (since overruled).

62 Thus, it has been held that an attempt to discharge a gun or pistol at a person is not in

view, however, cannot be sustained. According to the decided weight of authority, both in England and in this country, an apparent possibility to commit the intended crime is sufficient. The fact that conditions exist which render the actual consummation of the crime impossible does not prevent the party from being guilty of an attempt, if the conditions are not known to him. Thus, it has repeatedly been held that a person who attempts to pick another's pocket is guilty of an attempt to commit larceny, though there is nothing in the pocket.63 And the same

dictable, if, though unknown to the party making the attempt, it was not so loaded or primed that it could be discharged. Reg. v. Gamble, 10 Cox, C. C. 545.

63 Com. v. Jacobs, 9 Allen (Mass.) 274; Com. v. McDonald, 5 Cush. (Mass.) 365, Beale's Cas. 141; State v. Wilson, 30 Conn. 500; People v. Moran, 123 N. Y. 254, 20 Am. St. Rep. 732; People v. Jones, 46 Mich. 441; Rogers v. Com., 5 Serg. & R. (Pa.) 462; People v. Bush, 4 Hill (N. Y.) 134.

The contrary was at one time held in England. Reg. v. Collins, 9 Cox, C. C. 497, Beale's Cas. 137; Reg. v. M'Pherson, Dears. & B. C. C. 197, 7 Cox, C. C. 281. But these cases have been overruled. Reg. v. Brown, 24 Q. B. Div. 357; Reg. v. Ring, 66 Law Times (N. S.) 300.

principle has been applied in many other

cases.

64

It was said by Mr. Justice Gray in a Massachusetts case: "Whenever the law makes

64 In Clark v. State, 86 Tenn. 511, a person who had opened a drawer with intent to steal therefrom was held guilty of an attempt to commit larceny, though there was nothing in the drawer.

In Hamilton v. State, 36 Ind. 280, 10 Am. Rep. 22, a conviction of attempt to rob was sustained, where the accused had assaulted another with intent to rob him, though the person assaulted had no money on his person.

In State v. Beal, 37 Ohio St. 108, a person who had broken into a house with intent to steal therefrom was held guilty of burglary, though there was nothing in the house that could be stolen.

In Reg. v. Goodall, 2 Cox, C. C. 41, and Reg. v. Goodchild, 2 Car. & K. 293, convictions of attempt to procure a miscarriage were sustained, though the attempt was made upon the body of a woman who was not pregnant.

In People v. Lee Kong, 95 Cal. 666, 29 Am. St. Rep. 165, Beale's Cas. 142, a conviction of assault with intent to kill was sustained, where the accused had shot at a particular spot, with intent to kill a policeman whom he supposed to be concealed there, though it appeared that the policeman was in fact at another place.

An attempt to commit the crime of extorting money by putting another in fear is committed, notwithstanding the other is not really put in