121. The Intent.

Obviously, there cannot be an attempt to commit a particular crime unless there is an intention to commit that crime. A general criminal intent is sometimes sufficient to render one guilty of a crime, but it is never sufficient to render him guilty of an attempt. The specific intent is absolutely essential.24

For example, to constitute murder, an intent to kill need not be shown. It is murder to kill a person while engaged in the commission of another felony, or in resisting a lawful arrest, or in doing a wanton act which has a natural tendency to cause death.25 But to constitute an attempt to murder, the specific intent to kill is necessary.26 And the same is true of an attempt to commit any other crime, as rape, 27 larceny,28 robbery, 29 abortion,30 mayhem,31 etc.

23 Wilson v. State, 53 Ga. 205; People v. Thomas, 63 Cal. 482; People v. Stouter, 142 Cal. 146, 75 Pac. 780; White v. State, 22 Tex. 608.

24 Rex v. Boyce, 1 Mood. C. C. 29, Beale's Cas. 182; Rex v. Davis, 1 Car. & P. 306; Reg. v. Cruse, 8 Car. & P. 541; Reg. v. Donovan, 4 Cox, C. C. 399; Hall v. Com., 78 Va. 678; Sharp v. State, 19 Ohio, 379; Cunningham v. State, 49 Miss. 685; Lewis v. State, 35 Ala. 380; Simpson v. State, 59 Ala. 1, 31 Am. Rep. 1, Mikell's Cas. 345; Reagan v. State, 28 Tex. App. 227, 12 S. W. 601, 19 Am. St. Rep. 833.

25 Post, §§ 244, 248, 249.

26 Reg. v. Donovan, 4 Cox, C. C. 399; Simpson v. State, 59 Ala. 1, 31 Am. Rep. 1, Mikell's Cas. 345; Maher v. People, 10 Mich. 212; Pruitt v. State, 20 Tex. App. 129; Slatterly v. People, 58 N. Y. 354; Morgan v. State, 33 Ala. 413; post, § 208.

27 On a prosecution for attempt to rape, there must be a specific intent to have intercourse in such a way as will constitute rape,-by force and against the will of the woman. Lewis v. State, 35 Ala. 380; Carroll v. State, 24 Tex. App. 366, 6 S. W. 190; State v. Kendall, 73 Iowa, 255, 34 N. W. 843, 5 Am. St. Rep. 679; State v. Massey, 86 N. C. 658, 41 Am. Rep. 478; Charles v. State, 11 Ark. 389; post, § 208.

This does not apply where the girl is under the age of consent, so that want of consent is not necessary. Reg. v. Beale, L. R. 1 C. C. 10, 10 Cox, C. C. 157; State v. Pickett, 11 Nev. 255, 21 Am. Rep. 754; People v. McDonald, 9 Mich. 150.

28 Hall v. Com., 78 Va. 678.

Intent Inferred.-In a prosecution for an attempt, as in other cases where the intent is material, the intent need not be proved by positive or direct evidence. It may be inferred-as a matter of fact, however-from the conduct of the party and the other circumstances.32

122. The Act in General-Intention and Attempt Distinguished.

To constitute an attempt to commit a crime, there must be something more than a mere intention to commit it. There is a clear distinction between intention and attempt. The former indicates the purpose existing in the mind, while the latter indicates some act done in pursuance of the intent. Without an overt act there cannot be an attempt.33

123. Preparation and Attempt Distinguished.

There is also a distinction, though it is not so very clearly defined, between preparation and attempt. For a man to make

29 Hanson v. State, 43 Ohio St. 376, 1 N. E. 136.

30 State v. Moore, 25 Iowa, 128, 95 Am. Dec. 776.

31 Rex v. Boyce, 1 Mood. C. C. 29, Beale's Cas. 182; Filkins v. People, 69 N. Y. 101, 25 Am. Rep. 143.

32 Scott v. People, 141 Ill. 195, 30 N. E. 329 (intent to procure abortion, inferred from use of instruments without any other apparent reason); State v. Grossheim, 79 Iowa, 75, 44 N. W. 541 (intent to commit rape, inferable from conduct); Com. v. Hersey, 2 Allen (Mass.) 173, Beale's Cas. 183 (intent to kill, inferable from administering poison or use of deadly weapon under such circumstances as to evince such an intent). See, also, as to inference of intent to kill, Rex v. Howlett, 7 Car. & P. 274; Jeff v. State, 37 Miss. 321, 39 Miss. 593. And as to intent to rape, see Lewis v. State, 35 Ala. 380; Carter v. State, 35 Ga. 263; Hays v. People, 1 Hill (N. Y.) 351; State v. Smith, 80 Mo. 516.

33 Reg. v. Roberts, Dears. C. C. 539, 7 Cox, C. C. 39; U. S. v. Riddle, 5 Cranch (U. S.) 311, Beale's Cas. 311; Kelly v. Com., 1 Grant's Cas. (Pa.) 484, Mikell's Cas. 342; People v. Murray, 14 Cal. 160; Stabler v. Com., 95 Pa. 318, 40 Am. Rep. 653; State v. Lung, 21 Nev. 209, 28 Pac. 235, 37 Am. St. Rep. 505; Com. v. Clark, 6 Grat. (Va.) 675; Cox v. People, 82 Ill. 191; Cunningham v. State, 49 Miss. 702. And see Lovett v. State, 19 Tex. 174; Yoes v. State, 9 Ark. 42, Mikell's Cas. 20.

up his mind to commit a crime, and to make preparations to commit it, is not an attempt. He must go further than mere preparation, and do some act directly tending to a carrying out of his unlawful intent.3 Procuring or loading a gun, or buying poison, or walking to a particular place, with intent to kill another, is not enough to make one guilty of an attempt to commit murder.35 The same is true of similar preparations to commit burglary,35a or robbery,35b and of a purchase of coal oil and matches with intent to commit arson, 36 or the procuring of metal and dies with intent to commit the offense of counterfeiting money. 37 And so it is in other cases. many

38

34 Reg. v. Roberts, Dears. C. C. 539, 7 Cox, C. C. 39; Reg. v. Eagleton, Dears. C. C. 515; U. S. v. Stephens, 8 Sawy. 116, 12 Fed. 52, Beale's Cas 130; State v. Lung, 21 Nev. 209, 28 Pac. 235, 37 Am. St. Rep. 505; People v. Youngs, 122 Mich. 292, 81 N. W. 114, 47 L. R. A. 108; Com. v. Peaslee, 177 Mass. 267, 59 N. E. 55; Com. v. Kennedy, 170 Mass. 18, 48 N. E. 770.

35 Reg. v. Cheeseman, 9 Cox, C. C. 100, Leigh & C. 140; Reg. v. Williams, 1 Den. C. C. 39; Stabler v. Com., 95 Pa. 318, 40 Am. Rep. 653; Hicks v. Com., 86 Va. 223, 9 S. E. 1024, 19 Am. St. Rep. 891.

35a People v. Youngs, 122 Mich. 292, 81 N. W. 114, 47 L. R. A. 108. It was held an attempt to procure tools and go to the place intended, though defendants were surprised while merely reconnoitering. People v. Sullivan, 173 N. Y. 122, 65 N. E. 989.

35b Groves v. State, 116 Ga. 516, 42 S. E. 755, 59 L. R. A. 598.

36 Per Pollock, C. B., in Reg. v. Taylor, 1 Fost. & F. 511. And see McDade v. People, 29 Mich. 50. See, also, Com. v. Peaslee, 177 Mass. 267, 59 N. E. 55, Mikell's Cas. 348, where defendant had the combustibles prepared and in place and solicited another to set them afire, but abandoned the project before completion.

37 Reg. v. Roberts, Dears. C. C. 539, 7 Cox, C. C. 39. Such an act is punishable, but not as an attempt. See ante, § 117.

38 In U. S. v. Stephens, 8 Sawy. 116, 12 Fed. 52, Beale's Cas. 130, the defendant was charged with an attempt to introduce spirituous liquors into Alaska, in violation of an act of congress. The evidence showed that he sent from Alaska, where he resided, to a wholesale dealer in San Francisco, an order for 100 gallons of whisky, to be shipped to him in Alaska. It was held that he was not guilty of an attempt to in

These acts 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 ar ranging 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 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 ap

troduce the whisky into Alaska, as he had done no act to carry out his illegal intent of which the law could take cognizance, the offer to purchase the whisky being an act preparatory and indifferent in its character.

In People v. Murray, 14 Cal. 160, the defendant was convicted of an attempt to contract an incestuous marriage. From the evidence it ap 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 judg ment was reversed on the ground that this was a mere preparation.

In State v. Lung, 21 Nev. 209, 28 Pac. 235, 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. Cornwell v. Fraternal Acc. Ass'n, 6 N. D. 201, 69 N. W. 191, 66 Am. St. Rep. 601, 40 L. R. A. 437.

39 See the cases above cited.

40 People v. Murray, 14 Cal. 160.

411 Whart. Crim. Law (10th Ed.) § 181.

parently 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.48

125. Mere Solicitation.

View That Solicitation is an Attempt.-There are some cases

42 Reg. v. Cheeseman, 9 Cox, C. C. 100, Leigh & C. 140; Glover v. Com., 86 Va. 382, 10 S. E. 420, Beale's Cas. 133; Uhl v. Com., 6 Grat. (Va.) 706; State v. Smith, 80 Mo. 516; People v. Sullivan, 173 N. Y. 122, 65 N. E. 989.

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; Com. v. Kennedy, 170 Mass. 18, 48 N. E. 770.

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 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.