simple question you have to determine-did the prisoner know the nature of the act he was doing, and did he know that he was doing what was wrong?" (26). Notwithstanding these reasons a number of American courts have adopted the rule that a person is not responsible criminally for an act produced by an irresistible impulse of his insane condition (27).

(26) Queen v. Haynes, 1 Foster & Fin. 666.

(27) State v. Parsons, 81 Ala. 577.

CHAPTER IV.

THE CRIMINAL ACT.

SECTION 1. INCIPIENT ACTS.

§ 53. Evolution of the act. A man who designs the commission of a crime, first conceives that it might be done, then determines upon it, perhaps communicates these ideas to others, asks their assistance, and agrees with them upon it; and at all events, if he proceeds further with it, he must then make the attempt before the act is completed. If we look back over the act as thus developed we see that it includes five parts: 1. The idea. 2. The decision. 3. The suggestion or solicitation to crime. 4. The conspiracy of the parties. 5. The attempt to accomplish the criminal purpose. If the idea is repelled, or, even after determining upon it, if the sinner repents without doing more, the law takes no notice of it, though he may have confessed openly that he had determined upon the criminal act; for it is a principle of law that mere intention alone will not constitute crime. But each of the other stages of development of the act constitute a separate crime and deserve separate mention, as follows:

§ 54. Solicitation to crime. If the law should permit persons to go about soliciting others to commit crime, men who would not think of such a thing themselves

would be induced to violate the law, and punishment of the several offenders would still leave the aggravating cause untouched. Many times the person doing the act would be the mere tool of the real criminals who contrived the crime and induced him to commit it. Therefore it has long been an established principle of law, that solicitation to crime is in itself criminal, whether the suggestion is acted upon or not. A plain instance of a crime of this kind is the offering or asking for a bribe.

§ 55. Conspiracy. It has long been established that it is criminal and punishable to conspire to commit a crime or in many cases to do an illegal act not criminal; and it is immaterial whether the criminal act designed was the means of accomplishing a lawful object or was itself the object of the conspirators. Therefore it has often been said that a conspiracy is an agreement to do an unlawful act by lawful means or a lawful act by unlawful means. While it is clear that any agreement to do a criminal act, either as means or end is criminal, the decisions are in considerable conflict as to agreements to do wrongful acts not criminal. It is clear that mere agreements to commit a tort are not always criminal; to agree upon certain torts would be a criminal conspiracy; to agree upon others would not be; but exactly which would and which would not, it would be difficult, if not impossible, to say. On the other hand, it is believed that no agreement can be a criminal conspiracy unless the thing agreed to be done is at least unlawful-a legal wrong.

§ 56. Conspiracy: The strike and boycott. This question has received considerable discussion as applied to

cases of strikes and boycotts. It has been urged that every man has a right to say under what conditions he will work, whether he will continue or quit, whether he will work for or with another man or not; and what each may lawfully do for himself several may lawfully agree to do or not to do. If it is not unlawful to do it, it is not unlawful to agree to do it, to promise to do it, or to threaten to do it. If each may do it, all may do it, and unite in doing it. The same rule applies to the boycott, each man may trade where he pleases, may tell others where he is trading, and may agree with them where he will trade or will not trade. On the other side, it has been argued that while an employer is not greatly inconvenienced by one man leaving him nor a merchant severely injured by the loss of one customer; yet for all the employees to leave in a body, or a large part of the public to agree to boycott him is a serious disaster to the employer or merchant; and because it is a great disaster to the employer to be deserted by all his men, or the merchant to be abandoned by a large part of his patrons in a body, therefore agreeing to do these things should be punished as a criminal conspiracy. The force of these objections and arguments is much greater when applied to the sympathetic strike and secondary boycott. It may be that the employer or merchant would not be seriously embarrassed by the desertion of the particular employees or patrons who unite in the strike or boycott, and yet would be very seriously injured by losing the help and patronage of others who would desert him through fear of the threats of his former employees or patrons to labor

for or deal with no one who deals with him. This is still a live and vexed question. There are several cases in which it has been held that the secondary boycott is a criminal conspiracy, and others in which it has been held that such agreements are at least not criminal, though they may be a civil violation of the legal right of the employer to buy labor or of the merchant to trade (1).

§ 57. Attempt. Unsuccessful attempts to commit crimes are themselves punished criminally, because punishing the attempt prevents its being made and often protects the public from further attempts which might prove successful. In order to constitute an attempt there must be a design to commit a crime and something done towards its commission but falling short of completion. It has often been said that there can be no attempt unless the commission of the crime would be possible. This notion followed to an extreme logical conclusion would prevent any act being an attempt; for if the act is attempted and its perpetration is possible in the manner attempted, the crime will be committed. It has even been held that a man could not be convicted of an attempt to murder by proof that he pointed a gun and tried to discharge it when it was not loaded. On the other hand, when this inability was set up as defense to a charge against a boy of nearly fourteen years of attempt to rape, the defense was not allowed, and the court said that women might be in great danger from precocious boys and emasculated men if such assaults could be committed with im

(1) Commonwealth v. Hunt, 4 Metc. 111; State v. Donaldson, 32 N. J. L. 151; State v. Van Pelt, 136 N. C. 633.