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be tried in either jurisdiction, o though if the challenge be in writing, it may be expedient, in the jurisdiction of consummation, to charge the offence as an oral renewal. Clearly a challenge to fight in another state is penally cognizable in the state in which the challenge is issued. p Nor is it necessary to prove that the challenge ever reached its destination. 9

III. INDICTMENT. § 2682. A written letter, if merely the inducement or introduction to an oral communication, conveying a challenge, need not be set forth. Thus where T., in a letter to N., used expressions implying a challenge, and by a postscript referred N., the challenged party, to one H. (the bearer of the letter), if any further arrangements were necessary, it was held that the letter was only evidence of the challenge, and need not be specially pleaded; and that N. might give testimony of the conversation between H., the bearer of the letter, and himself. r Even when a statute makes sending a challenge indictable, it is not necessary to set out a copy of the challenge; 8 and if an attempt be made to set out in the indictment a copy, and it varies slightly from the original, as by the addition or omission of a letter, no way altering the sense, it seems such variance is not fatal, and, after verdict, it is cured. t

§ 2683. Where a statute makes it a misdemeanor to challenge another, the indictment must charge that the defendant challenged; it is not enough that he wrote, sent, and offered a paper he intended as a challenge. u

Expressing a readiness to accept a challenge does not amount to challenging under the statute. v

§ 2684. An indictment on the Massachusetts Stat. 1849, c. 49, § 1, is sufficient, which alleges that the defendant, at a time and place named, “ by and in pursuance of a previous appointment and arrangement made to meet and engage in a fight with another person, to wit, with one J. S., did meet and engage in a O Ante, $ 210 a.

s Brown v. Com. 2 Va. Ca. 516. p State v. Taylor, 3 Brev. 243; 1 t State v. Farrier, 1 Hawks, 487, Tr. Const. Rep. 107; Ivey v. State, 12 See Heffren v. Com. 4 Metc. (Ky.) 5; Alab. 276 ; State v. Farrier, 1 Hawks, Ivey v. State, 12 Alab. 276; Com. v. 487; R. v. Williams, 2 Camp. 506. Tibbs, 1 Dana, 524. q R. v. Williams, supra.

u State v. Gibbons, 1 Southard, 40. r State v. Taylor, 1 Tread. 107. v Com. v. Tibbs, 1 Dana, 524.

fight with the said J. S.," without further charging what previous appointment or arrangement was made, or when or where, or by whom, or further setting out the defendant's acts. w

IV. EVIDENCE.

$ 2685. Proof of challenge. — No set phrase is necessary to constitute a challenge to fight with deadly weapons. X

The note or letter, sent by one party to the other, and parol testimony, in explanation, are admissible as evidence. y

§ 2685 a. Interpretation for jury. — The jury is to decide, under advice of the court, whether, from all the circumstances, there has been a challenge within the statute. z

Admissions of Seconds. $ 2685 b. Concert being proved, it need scarcely be added that the admissions of a second are evidence against the principal ; and vice versa. a

w Com. v. Welsh, 7 Gray, 324. z Com. v. Hart, 6 J. J. Marshall,

* Com. v. Hart, 6 J. J. Marshall, 121; State v. Strickland, 2 Nott & 121 ; Com. v. Tibbs, 1 Dana, 524; McC. 181. State v. Perkins, 6 Blackf. 20.

a State v. Dupont, 2 McC. 334. y Ante, $ 2682.

845

CHAPTER XVII.

ATTEMPTS.

I. DEFINITION. AN ATTEMPT IS

A DELIBERATE CRIME WHICH
IS BEGUN, BUT, THROUGH CIR-
CUMSTANCES INDEPENDENT
OF THE WILL OF THE ACTOR,

LEFT UNFINISHED, § 2686.
II. FROM WHAT ATTEMPTS ARE

TO BE DISTINGUISHED, $ 2687.
1. ILLEGAL PURPOSES, EVEN THOUGH

EXPRESSED IN WORDS, $ 2687.
2. OFFENCES NOT SUBJECT TO PUN-

ISHMENT, $ 2688.
3. NEGLIGENCES, OMISSIONS,

AXD
POLICE OFFENCES, S 2689.
4. CONDITIONS, § 2690.

5. SOLICITATIONS, $ 2691.
III. ATTEMPTS IN RELATION TO

PERFORMANCE, $ 2692.
1. PREPARATIONS, § 2692.
2. DEGREE OF PROGRESS NECES-

SARY, § 2693.

3. SUFFICIENCY OF MEANS FOR END,

$ 2694. 4. PHYSICAL ABILITY OF ACTOR, S

2696. 5. CAPABILITY OF SUCCESS, $ 2697. 6. EXISTENCE OF OBJECT ATTEMPT

ED, $ 2698. 7. ABANDONED OR FRUSTRATED AT

TEMPTS, $ 2699.
8. ATTEMPTS AS AFFECTED BY CON-

SENT, $ 2701.
IV. INDICTMENT, $ 2702.
V. JURISDICTION, $ 2707.
VI. EVIDENCE, $ 2708.
1. INTENT TO BE INFERRED FROM

ACTS, $ 2708.
2. PRINCIPALS AND ACCESSARIES,

$ 2709.

3. ADAPTATION, $ 2710.
VII. VERDICT, $ 2711.
VIII. PUNISHMENT, $ 2712.

I. DEFINITION. § 2686. An indictable attempt has been defined to be a deliberate crime which is begun, but, through circumstances independent of the will of the actor, left unfinished. a More strictly it is such an intentional, preliminary, guilty act as will apparently result in the usual course of natural events, if not hindered by causes outside of the actor's will, in a deliberate crime.

a By the English common law it is a misdemeanor unsuccessfully to attempt a felony, b or a malicious misdemeanor, whether common law or statutory.c Hence it is an indictable attempt falsely a See Berner, Lehrbuch, $ 166. c R. v. Higgins, 2 East R. 8; R. o.

b 1 Hawk. P. C. 55; R. v. Higgins, 2 Phillips, 6 East R. 464; R. v. ChapEast R. 21; R. v. Kinnersley, 1 Strange, man, 2 C. & K. 846 ; 1 Den. C. C. 432; 196; State v. Boyden, 13 Ire. 505; Hack- R. v. Williams, 1 Den. C. C. 39; State ett v. Com. 3 Harris, 95; Griffin v. v. Maner, 2 Hill S. C. 453 ; R. v. Goff, State, 26 Georg. 493; Randolph r. Com. 9 Up. Can. C. P. 438 ; R. v. Watson, 6 S. & R. 398; State v. Danforth, 3 2 T. R. 199; R. v. Roberts, Dears. Conn. 112; Com. v. Barlow, 4 Mass. 439. 539; 33 Eng. Law & Eq. 17; Com. v. to accuse another of crime, if any step be taken which, in the usual course of events, would lead to a conviction, even though the accusation take not the form of libel. In this view the fabrication of mechanical inculpatory evidence is a substantive misdemeanor.cl

II. FROM WHAT INDICTABLE ATTEMPTS ARE TO BE DISTINGUISHED.

1. Ilegal Purposes even though expressed in Words. § 2687. Mere words, unless they are libellous, seditious, obscene, or provocative of breaches of the public peace, are not the subject of penal judicial action. Even when they express illegal purposes, they are often merely speculative; are uttered often by weak men as braggadocio; and always belong to a domain which criminal courts cannot invade without peril to individual freedom, and to the just and liberal progress of society. This liberty to express thought is recognized in all systems of civilized jurisprudence.“ Cogitationis poenam nemo patitur,”

a maxim of the Roman law, d which is now accepted as part of the judicial system of all Christendom, and is adopted in the codes of the most arbitrary nations of Europe. e And by the Roman common law, even talking about a criminal intent, and thus giving to it public expression, does not constitute, except in treason, an attempt. f

was

Kingsbury, 5 Mass. 106; Ross v. Com. tutto quello che ne può ottenere l'ese2 B. Monr. 417; People v. Washburn, cuzione. ... Dunque il palesare 10 Johns. R. 160 ; State v. Murray, 15 il pensiero e la deliberazione di un Me. 100; Com. v. Harrington, 3 Pick. delitto, cui però si è desistito di man26; State v. Keyes, 8 Ver. 57; Com. dare ad esecuzione, ovvero la jattanza v. Smith, 54 Penn. R. 209; Demarest di volerlo effetuare, senza però che v. Haring, 6 Cow. 76.

s'intraprenda nulla in fatto colle azioni c1 R. v. Simmons, 1 Wils. 329. fisiche ed esterne, sono cose che non d L. 18. D. de Poenis, xlviii. 19. si possono veramente riguardare come

e See this shown in Holzendorff's attentati, nè si potrebbero punire come Ency. “ Versuch.”

tali. Filangieri Scienza della legisf Very curious citations on this lazione, iii. 37. (T. iii. p. 326, 327.) point are given by Geib, Lehrbuch, &c., Carmignani Teoria delle leggi ii. $ 99, among which are the following: 302–304. Boehmer, Meditt. in C. C. C. Romagnosi Genesi del diritto penale, Art. 178. & 3. Wintgens Diss. cit. p. p. 221, 222. Tentare un delitto, non 19-24. 81. Lelièvre Comm. cit.

p.

7è soltanto pensarlo, o deliberarlo; o 13. 26-28. The same view is expressed vero dire di averlo pensato, o delib- by Willes, J., in R. v. Mulcahy, L. R. erato; ma bensl egli è porre in opera 3 H. L. App. 317.

2. Offences not subject to Punishment. § 2688. If there be no punishment assigned to the completed offence, there can be no punishment to the offence when incomplete. Thus in Massachusetts an attempt to commit suicide is not indictable, on the ground that under the special statutes of that state, repealing the common law in this respect, there can be no conviction of an attempt to do a thing not in itself punishable. g

a

3. Negligences, Omissions, and Police Offences. § 2689. There can be no indictment for an attempt at a negligence or omission, for, from the nature of things, the attempt to neglect or omit a duty is in itself, if sucessful, a malicious offence, and ceases to be a neglect or omission. Hence comes the just principle of the Roman law, that where there is no dolus, there can be no attempt. Hence, also, it results, that an attempt to commit a mere police offence, involving no malice, is not indictable. h And this principle covers the attempting to sell liquor in illegal measures. i When an attempt is made maliciously to violate the law in this respect, and when the attempt is put into such a shape as, by the natural course of events, to produce a violation of such laws, then the attempt is indictable. But when, between the attempt and the execution, is interposed the volition of an independent moral agent, then, by stress of the definition just given, an indictable attempt is not made out. j

4. Conditions. $ 2690. The distinction between conditions and causes has been already largely discussed;k and a recurrence to the principles heretofore expressed is essential to the elucidation of this branch of jurisprudence. To enable a gunshot wound to be inflicted, an almost innumerable series of conditions is necessary. It is necessary that the gun should be procured by the assailant. It

g Com. v. Dennis, 105 Mass. 162. i Pulse v. State, supra; Com. v. Ante, $ 373.

Willard, supra ; State v. Rand, 51 N. h Com. v. Willard, 22 Pick. 476; H. 361 ; Com. v. Downing, 4 Gray, Dobkins v. State, 2 Humph. 424; 29. Ante, § 2463. Pulse v. State, 5 Humph. 108; Ross v. j Post, $ 2691. Com. 2 B. Monr. 417; R. v. Upton, k Ante, $ 751, seq. Strange, 816.

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