44

in which the mere solicitation of another to commit a crime has been held indictable as an attempt to commit the crime, on the theory that mere solicitation is sufficiently an act done "a step in the direction of the crime”—to constitute an attempt.* Thus, it has been held that taking an impression of a key, and preparing a false key,45 with intent to break and enter a store through the agency of another person, and sending the key to him and soliciting him to do the act, is an attempt to commit larceny from the store.46 And it has been held that soliciting another to commit arson, and offering him a match for the purpose, is an attempt to commit arson.47

Prevailing Doctrine is to the Contrary. This view, however, has been repudiated by most of the courts in which the question has arisen, and the better opinion is that solicitation to commit a crime is not an attempt. It is not an act done with intent to commit a crime, and which would apparently result in the commission of the contemplated crime, unless frustrated by extraneous circumstances. When punishable at all, it is punishable as a distinct misdemeanor.48

In a leading Pennsylvania case it was held that delivering poison to a person and soliciting him to give it to another was not punishable under a statute as "an attempt to administer poison," but a conviction was sustained under a count charging the solicitation as a distinct offense.4 49 There are many cases to substantially the same effect.50

44 See the language of the different judges in Rex v. Higgins, 2 East, 5, Mikell's Cas. 337, quoted in the opinion of the court in Walsh v. People, 65 Ill. 58, 16 Am. Rep. 569, Beale's Cas. 128, 129.

45 Thus far it was clearly mere preparation. Ante, § 123.

46 Griffin v. State, 26 Ga. 493.

47 People v. Bush, 4 Hill (N. Y.) 135; State v. Bowers, 35 S. C. 262, 14 S. E. 488, 28 Am. St. Rep. 847.

48 Post, § 130 et seq.

49 Stabler v. Com., 95 Pa. 318, 40 Am. Rep. 653. See, also, Hicks v. Com., 86 Va. 223, 9 S. E. 1024.

50 Reg. v. Williams, 1 Car. & K. 589, 1 Den. C. C. 39; McDade v. Peo

Thus, it has been held, contrary to the case mentioned above, that soliciting another to commit arson and furnishing him with matches is not an attempt 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.5

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 rape, 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.5 And voluntary abandonment, even after such an act has been done, may be evidence tending to negative the intent charged.56 127. Adaptation of Means to Accomplishment of Purpose.

55

There has been considerable discussion in the cases as to the extent to which the means employed must be adapted to the

ple, 29 Mich. 50; State v. Harney, 101 Mo. 470, 14 S. W. 657; State v. Butler, 8 Wash. 194, 35 Pac. 1093; Smith v. Com., 54 Pa. 209, 93 Am. Dec. 686; Com. v. Randolph, 146 Pa. 83, 23 Atl. 388, 28 Am. St. Rep. 782, Beale's Cas. 134; Com. v. Peaslee, 177 Mass. 267, 59 N. E. 55. And see U. S. v. Stephens, 8 Sawy. 116, 12 Fed. 52, Beale's Cas. 130.

51 McDade v. People, 29 Mich. 50.

52 State v. Harney, 101 Mo. 470, 14 S. W. 657.

53 Cox v. People, 82 Ill. 191; State v. Butler, 8 Wash. 194, 35 Pac. 1093; Smith v. Com., 54 Pa. 209, 93 Am. Dec. 686.

54 Glover v. Com., 86 Va. 382, 10 S. E. 420, Beale's Cas. 133; Lewis v. State, 35 Ala. 380; People v. Marrs, 125 Mich. 376, 84 N. W. 284.

55 Pinkard v. State, 30 Ga. 757, Mikell's Cas. 335.

56 State v. Allen, 47 Conn. 121, Mikell's Cas. 483; 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.

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

By the overwhelming weight of authority, the means adopted need not be absolutely capable of accomplishing the intended crime. An apparent adaptation is sufficient.0

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

57 See People v. Gardiner, 73 Hun, 66, 25 N. Y. Supp. 1072, Mikell's Cas. 358, n.

58 Tarver v. State, 43 Ala. 354.

59 Rex v. Edwards, 6 Car. & P. 521; Allen v. State, 28 Ga. 395, 73 Am. Dec. 760; Henry v. State, 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.

Where the members of a county board were indicted for incurring an obligation in behalf of the county in excess of the legal limit, and the acts set out and proved were held to be insufficient to create any obligation, it was held that a conviction of an attempt was improper. Marley v. State, 58 N. J. Law, 207, 33 Atl. 208, Mikell's Cas. 352.

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, 30 Pac. 800,,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.

crime committed;61 and the rule has been applied in some of the cases. 62 This view, however, cannot be sustained. Ac cording 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 principle has been applied in many other cases.64

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 indictable, 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, 25 N. E. 412, 20 Am. St. Rep. 732; People v. Jones, 46 Mich. 441, 9 N. W. 486; 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.

64 In Clark v. State, 86 Tenn. 511, 8 S. W. 145, Mikell's Cas. 355, 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

It was said by Mr. Justice Gray in a Massachusetts case: "Whenever the law makes one step towards the accomplishment of an unlawful object with the intent or purpose of accomplishing it criminal, a person taking that step, with that intent or purpose, and himself capable of doing every act on his part to accomplish that object, cannot protect himself from responsibility by showing that, by reason of some fact unknown to him at the time of his criminal attempt, it could not be fully carried into effect in the particular instance."65

"If the means are both absolutely and apparently inadequate, as where a man threatens another with magic, or aims at him a child's popgun, then it is plain that an attempt, in the sense of an apparent invasion of another's rights, does not exist. * * * When the means used are so preposterous that there is not even apparent danger, then an indictable attempt is not made out."66

pregnant. See, also, Com. v. Taylor, 132 Mass. 261; Com. v. Tibbetts, 157 Mass. 519, 32 N. E. 910.

In People v. Lee Kong, 95 Cal. 666, 30 Pac. 800, 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. See, also, State v. Mitchell, 170 Mo. 633, 71 S. W. 175, 94 Am. St. Rep. 763.

An attempt to commit the crime of extorting money by putting another in fear is committed, notwithstanding the other is not really put in fear, but gives up the money for the purpose of afterwards prosecuting the offender. People v. Gardner, 144 N. Y. 119, 38 N. E. 1003, 43 Am. St. Rep. 741, reversing 73 Hun, 66, 25 N. Y. Supp. 1072, Mikell's Cas. 358.

In State v. Glover, 27 S. C. 602, 4 S. E. 564, a conviction of assault with intent to murder was sustained where defendant gave a child a dose of poison which she supposed was sufficient to cause death.

Conviction of an attempt to produce abortion is proper where a drug was unsuccessfully administered with that intent, and the medical witnesses state that it might produce the result under certain circumstances. Hunter v. State, 38 Tex. Cr. R. 61, 41 S. W. 602.

65 Com. v. Jacobs, 9 Allen (Mass.) 274.

66 1 Whart. Crim. Law (10th Ed.) § 183, citing, among other cases,