mate to the obtaining the money. But on the statements in this case no other act on the part of the defendant would have been required. It was the last act depending upon himself towards the payment of the money, and therefore it ought to be considered as an attempt."

But this attempt to find an arbitrary rule must also be dismissed. The test loses sight of the real reason for punishing attempts, that is, the danger to the public. Very many punishable attempts fail of success though not interrupted by natural causes or by other persons than the defendant, for instance, shooting at an enemy with an ill-aimed pistol; on the other hand, many acts are punishable though to attain success they must be followed by other acts of the defendant himself, as in the series of cases on attempts to commit burglary and arson, stated later. Indeed, all the cases where a man is punished for attempt though he repented and gave up his project before success are opposed to the proposed test.1

The true doctrine has been so well stated by Mr. Justice Holmes that it is unnecessary to do more than quote his words: 2

"An act may be done which is expected and intended to accomplish a crime, which is not near enough to the result to constitute an attempt to commit it, as in the classic instance of shooting at a post supposed to be a man. As the aim of the law is not to punish sins, but is to prevent certain external results, the act done must come pretty near to accomplishing that result before the law will notice it. But, on the other hand, irrespective of the statute, it is not necessary that the act should be such as inevitably to accomplish the crime by the operation of natural forces but for some casual and unexpected interference. It is none the less an attempt to shoot a man that the pistol which is fired at his head was not aimed straight, and therefore, in the course of nature, could not hit him. Usually, acts which are expected to bring about the end without further interference on the part of the criminal are near enough, unless the expectation is very absurd. . . . Every question of proximity must be determined by its own circumstances, and analogy is too imperfect to give much help. Any unlawful application of poison is an evil which threatens death according to common apprehension, and the gravity of the crime, the uncertainty of the result, and the seriousness of the apprehension, coupled with the great harm likely to result from poison, even if not enough to kill, would warrant holding the liability for an attempt to begin at a point more remote from the possibility of accomplishing what is expected than might be the case with lighter crimes. In the

.

...

1 See particularly Glover v. C., 86 Va. 382, 10 S. E. Rep. 420; R. v. Goodman, 22 U. C. C. P. 338.

2 In C. v. Kennedy, 170 Mass. 18, 20, 48 N. E. Rep. 770.

case of crimes exceptionally dealt with or greatly feared, acts have been punished which were not even expected to effect the substantive evil unless followed by other criminal acts; e. g. in the case of treason (Fost. Crown Law, 196; Rex v. Cowper, 5 Mod. 206), or in that of pursuit by a negro with intent to commit rape (Lewis v. State, 35 Ala. 380)."

The act of attempt to be punishable must be more than mere preparation; a step must be taken which can be regarded as the beginning of the actual commission of the crime intended.1 In the leading case 2 on the subject Field, C. J., said:

"Preparation consists in devising or arranging the means or measures necessary for the commission of the offense; the attempt is the direct movement toward the commission after the preparations are made."

The difference between an act of preparation and an attempt is merely one of degree, and is exceedingly difficult to apply. In People v. Murray 3 the charge was an attempt to contract an incestuous marriage; the defendant eloped with his niece, and tried to secure a magistrate to perform the ceremony; it was held that a punishable attempt had not been committed. In United States v. Stephens the charge was an attempt to introduce liquor into Alaska; the defendant sent to San Francisco an order for liquor to be shipped to him in Alaska; he was discharged. In United States v. Riddle a false invoice was made by the exporter in Liverpool with intent to defraud the revenue; it was held not to be an attempt to defraud. On the other hand, in Regina v. Cheesemana servant who, intending later to steal his master's property, put it to one side so that he could easily make way with it, was held guilty of an attempt to steal. In Cunningham v. State9 the defendant had had sent to him and had received from the express company certain printed forms of auditor's warrants with stamps for impressing the auditor's seal; he was held guilty of an

1 U. S. v. Stephens, 8 Sawy. 116; P. v. Murray, 14 Cal. 159; Jackson v. S., 103 Ga. 417, 30 S. E. Rep. 251; Sipple v. S., 46 N. J. L. 197; Lovett v. S., 19 Tex. 174.

2 P. v. Murray, supra.

3 14 Cal. 159.

4 8 Sawy. 116.

5

5 Cr. 311; acc. U. S. v. Twenty-eight Packages of Pins, Gilp. 306.

6 For other instances of mere preparation, see P. v. Compton, 123 Cal. 403, 56 Pac.

Rep. 44; Brown v. S., 95 Ga. 481, 20 S. E. Rep. 495; Lovett v. S., 19 Tex. 174.

7 9 Cox C. C. 100.

See P. v. Mann, 113 Cal. 76, 45 Pac. Rep. 182.

9 49 Miss. 685.

4

attempt to forge auditor's warrants. In Regina v. Brown1 the court intimated that merely drawing a loaded pistol from the pocket for the purpose of killing is a punishable attempt to kill.2 In People v. Stites the defendant procured a dynamite bomb and started from his house to put it on the railroad track, but was arrested at some distance from the track; he was held guilty of an attempt to obstruct the track. In Territory v. Reuss the defendant put a lighted bomb on the porch of a house and attempted to call an inmate of the house to the door; this was a punishable attempt to kill.5 In several cases it has been held that where the defendant made false representations for the purpose of getting property, but the deceit was discovered before the property was given up, he was guilty of an attempt to obtain by false pretences.6 A series of cases on indictments for attempt to commit arson illustrate the nice distinctions required. The defendant bought matches to set the fire; he cannot yet be punished. He solicited another to burn and furnished him with materials; there is no punishable attempt.8 He prepared combustibles at the house, went to a third party, solicited him to set the fire, and started with him toward the house. Query-whether a punishable attempt has been committed.9 The combustibles were arranged and another who was on the spot was solicited to light it; the attempt is punishable.10 The defendant himself having arranged the combustibles lit a match, which went out,11 or lit a candle and placed it among

11

1 10 Q. B. D. 381, 52 L. J. M. C. 49, 48 L. T. Rep. 270, 31 W. R. 460, 15 Cox C. C. 199, 47 J. P. 327.

2 In the similar case of Burton v. S., 109 Ga. 134, 34 S. E. Rep. 286, where the pistol was caught in the coat lining, it was held not to amount to an assault with intent to kill.

5 For other cases where the act had gone far enough to be punishable see R. v. Chapman, I Den. C. C. 432; Lewis v. S., 35 Ala. 380; Clark v. S., 86 Tenn. 511, 8 S. W. Rep. 145.

6 R. v. Ball, C. & M. 249; R. v. Eagleton, Dears. 515, 24 L. J. M. C. 158, 3 C. L. R. 1145, Jur. N. S. 940, 4 W. R. 17, 6 Cox C. C. 559; R. v. Rigby, 7 Cox C. C. 507; R. v. Cheeseman, L. & C. 140, 31 L. J. M. C. 89, 8 Jur. N. s. 143, 5 L. T. Rep. 717, 10 W. R. 255, 9 Cox C. C. 100; R. v. Hensler, 22 L. T. Rep. 691, 19 W. R. 108, 11 Cox C. C. 570.

7 R. v. Taylor, 1 F. & F. 511 (semble).

8 McDade v. P., 29 Mich. 50; S. v. Bowers, 35 S. C. 262, 14 S. E. Rep. 488. Contra, McDermott v. P., 5 Park. Cr. 102; P. v. Bush, 4 Hill 133 (statutory).

• It is punishable under the statute: C. v. Peaslee, 177 Mass. 267, 59 N. E. Rep. 55. 10 S. v. Hayes, 78 Mo. 307.

R. v. Taylor, I F. & F. 511; R. v. Goodman, 22 U. C. C. P. 338.

the combustibles,1 or actually lit the combustibles,2 he has committed a crime.

He

Another interesting series of cases is upon indictments for attempt to commit burglary. The defendant takes an impression of a lock of the house in order to get a false key made; he is not yet guilty of a criminal attempt.3 He procures tools and meets a confederate at a distance from the house; he is not guilty. hires a hack to go to the house; he is not guilty. He reaches the house and looks at it to examine it; not guilty. He carries his tools to the house, lays them down, and goes to get a tool he had forgotten, or examines the house to pick out a fit place to break; guilty. He breaks down the gate of the yard; he goes up the steps to the porch; 10 he tries to break open the door;11 he breaks glass in the window; 12 he breaks open the door and fires into the house; 13 he is undoubtedly guilty.

9

Other series of cases in which the line between preparation and punishable attempt has been considered are cases of attempted poisoning,1 and of attempting to rescue a prisoner.15

It seems to be clear that the common-law misdemeanor of attempting to commit an offense cannot be accomplished by the solicitation of another to do an act. Attempt is the act of one who is himself to commit the intended offense, and if the offense is committed he will become principal; solicitation is the act of one who means to secure another to commit the intended offense, and if the offense is committed he will become (in case of a felony) accessory before the fact. A solicitor to a crime which he does

1 S. v. Johnson, 19 Ia. 230.

2 S. v. Dennin, 32 Vt. 158.

8 In Griffin v. S., 26 Ga. 493, he was held guilty of a statutory attempt; sed quære.

4 P. v. Youngs, 122 Mich. 292, 81 N. W. Rep. 114.

6 Groves v. S., 42 S. E. Rep. 755 (Ga.).

6 R. v. McCann, 28 U. C. Q. B. 514.

P. v. Lawton, 56 Barb. 126 (perhaps statutory).

8 P. v. Sullivan, 173 N. Y. 122, 65 N. E. Rep. 989.

9 C. v. Smith, 6 Phila. 305.

19 C. v. Clark, 20 Phila. 395, 10 Pa. Co. Ct. 444, 48 Leg. Int. 450.

11 S. v. Jordan, 75 N. C. 27. Contra, Fonville v. S., 62 S. W. Rep. 573 (Tex. Cr.).

12 R. v. Spanner, 12 Cox C. C. 155; C. v. Shedd, 140 Mass. 451, 5 N. E. Rep. 254.

13 S. v. Montgomery, 109 Mo. 645, 19 S. W. Rep. 221.

14 Peebles v. S., 101 Ga. 585, 28 S. E. Rep. 920; R. v. Dale, 6 Cox C. C. 14; C. v. McLaughlin, 105 Mass. 460; C. v. Kennedy, 170 Mass. 18, 48 N. E. Rep. 770.

15 Patrick v. P., 132 Ill. 529, 24 N. E. Rep. 619; P. v. Webb, 127 Mich. 29, 86 N. W. Rep. 406.

not intend to join in actually committing is therefore not guilty of an attempt.1

Thus in Regina v. Williams, an indictment for attempt to administer poison by giving the poison to X, who knew its nature, with directions to administer it, it was held that the defendant must be discharged; but upon a subsequent indictment for a misdemeanor unnamed (obviously for a solicitation) the defendant was convicted.3

In several states a statutory definition of attempt has been adopted, to the effect that whoever shall attempt to commit an offense" and in such attempt shall do any act towards the commission of such offense" shall be guilty of a crime. Under this statute, solicitation, at least when united with any acts of mere preparation, has been held a punishable attempt.1

In considering whether an attempt has gone far enough to justify punishment it is immaterial that the defendant may voluntarily desist from his attempt before it succeeds. If his attempt went far enough to become dangerous to the public and therefore criminal, he had become guilty of a crime, and his subsequent repentance and withdrawal from the crime, whether voluntarily or from fear of detection, could not purge his guilt. Even if he went further and himself prevented the consummation of the attempt, he would still remain guilty of what he had actually done.

IV. SUCCESS OF THE ATTEMPT.

If an attempt succeeds, it cannot be punished as an attempt; for in the nature of things a mere attempt must be unsuccessful. If, therefore, at the trial of an indictment for attempt the evidence proves that the crime intended has been committed, there must be

1 R. v. Williams, 1 C. & K. 589, 1 Den. C. C. 39 (but see R. v. Clayton, 1 C. & K. 128, contra, on the ground that in misdemeanors all parties are principals a doctrine which, however, does not mean that all parties are really actors); McDade v. P., 29 Mich. 50; P. v. Youngs, 122 Mich. 292, 81 N. W. Rep. 114; Stabler v. C., 95 Pa. St. 318, 40 Am. Rep. 653; Hicks v. C., 86 Va. 223, 9 S. E. Rep. 1024; S. v. Butler, 8 Wash. 194, 35 Pac. Rep. 1093.

2 Supra.

3 CRESSWELL, J., in R. v. Roberts, Dears. 539, 25 L. J. M. C. 17.

Griffin v. S., 26 Ga. 493; C. v. Peaslee, 177 Mass. 267, 59 N. E. Rep. 55 (semble); S. v. Hayes, 78 Mo. 307; P. v. Bush, 4 Hill 133; McDermott v. P., 5 Park. Cr. 102; Sv. Bowers, 35 S. C. 262, 14 S. E. Rep. 488. Contra, P. v. Youngs, supra.

Taylor v. S., 50 Ga. 75 (semble); S. v. Elick, 7 Jones (N. C.) 68; Glover v. C., 86 Va. 382, 10 S. E. Rep. 420; R. v. Goodman, 22 U. C. C. P. 338.