defendant for other offences of a like character, concerning which there is some proof in the record, but which were not charged in the present indictment.

CHASE, J. (dissenting). I dissent. Defendant having with knowledge repeatedly received goods stolen from a dry goods firm by one of its employees, suggested to the employee that a certain specified kind of cloth be taken, he was told by the employee that that particular kind of cloth was not kept on his floor, and he then said that he would take a roll of a certain Italian cloth. The employee then stole a roll of the Italian cloth and carried it away, but left it in another store where he could subsequently get it for delivery to the defendant. Before it was actually delivered to the defendant the employers discovered that the employee had been stealing from them, and they accused him of the thefts. The employee then confessed his guilt, and told them of the piece of cloth that had been stolen for the defendant, but had not actually been delivered to him. The roll of cloth so stolen was then taken by another employee of the firm, and it was arranged at the police headquarters that the employee who had taken the cloth should deliver it to the defendant, which he did, and the defendant paid the employee about one-half the value thereof. The defendant was then arrested and this indictment was thereafter found against him. That the defendant intended to commit a crime is undisputed. I think the record shows an attempt to commit the crime of criminally receiving property as defined in sections 550 and 34 of the Penal Code, within the decisions of this court in People v. Moran (123 N. Y. 254) and People v. Gardner (144 N. Y. 119).

CULLEN, C. J., GRAY, EDWARD T. BARTLETT, VANN and WERNER, JJ., concur with WILLARD BARTLETT, J.; CHASE, J., dissents in memorandum.

Judgment of conviction reversed, etc.1

UNITED STATES v. STEPHENS.

CIRCUIT COURT OF UNITED STATES, DISTRICT OF OREGON. 1882. [Reported 8 Sawyer, 116.]

DEADY, J.2 On March 30, 1882, an information was filed by the district attorney, accusing the defendant, by the first count, of the crime of introducing spirituous liquors into the district of Alaska, contrary to law; and, by the second count, of the crime of "attempting'

1 See Marley v. State, 58 N. J. L. 207. ED.
2 Part of the opinion only is printed.
ED.

to so introduce such liquors into said district. The defendant demurs to the information because it does not state facts sufficient to constitute a crime.

66

Upon the argument of the demurrer it was abandoned as to the first count, and insisted upon as to the second. This count alleges that on July 14, 1879, the defendant, being in the district of Alaska, wrote and transmitted a letter to a certain firm in San Francisco, California, wherein and whereby he requested said firm to ship and send to him at Fort Wrangel, in said district, one hundred gallons of whiskey; the defendant then well knowing that said firm were then wholesale dealers in spirituous liquors, and owned and possessed said one hundred gallons of whiskey; and he thereby contriving and intending to introduce the said one hundred gallons of whiskey into the said district of Alaska.” There are a class of acts which may be fairly said to be done in pursuance of or in combination with an intent to commit a crime, but are not, in a legal sense, a part of it, and therefore do not with such intent constitute an indictable attempt; for instance, the purchase of a gun with a design to commit murder, or the purchase of poison with the same intent. These are considered in the nature of preliminary preparations, conditions, not causes, and although coexistent with a guilty intent, are indifferent in their character, and do not advance the conduct of the party beyond the sphere of mere intent. They are, it is true, the necessary conditions without which the shooting or poisoning could not take place, but they are not, in the eye of the law, the cause of either. 1 Whart. C. L., secs. 178, 181; 1 Bish. C. L., sec. 668 et seq., The People v. Murray, 14 Cal. 160.

Dr. Wharton says (supra, sec. 181): "To make the act an indictable attempt, it must be a cause as distinguished from a condition; and it must go so far that it would result in the crime unless frustrated by extraneous circumstances." Bishop says (supra, sec. 669): "It is plain that if a man who has a wicked purpose in his heart does something entirely foreign in its nature from that purpose, he does not commit a criminal attempt to do the thing proposed. On the other hand, if he does what is exactly adapted to accomplish the evil meant, yet proceeds not far enough in the doing for the cognizance of the law, he still escapes punishment. Again, if he does a thing not completely, as the result discloses, adapted to accomplish the wrong, he may under some circumstances be punishable, while under other circumstances he may escape. And the difficulty is not a small one, to lay down rules readily applied, which shall guide the practitioner in respect to the circumstances in which the criminal attempt is sufficient."

In The People v. Murray, supra, the defendant was indicted for an attempt to contract an incestuous marriage, and was found guilty. From the evidence it appeared that he intended to contract such marriage, that he eloped with his niece for that purpose, and requested a

1 This was made criminal by Act of March 3, 1873 (17 Stat. at L. 530). — ED.

third person to get a magistrate to perform the ceremony. Upon an appeal the judgment was reversed. Chief Justice FIELD, delivering the opinion of the court, said: "It (the evidence) shows very clearly the intention of the defendant; but something more than mere intention is necessary to constitute the offence charged. Between preparation for the attempt and the attempt itself, there is a wide difference. The preparation consists in devising or arranging the means or measures necessary for the commission of the offence; the attempt is the direct movement towards the commission after the preparations are made . . ; but until the officer was engaged, and the parties stood before him, ready to take the vows appropriate to the contract of marriage, it cannot be said, in strictness, that the attempt was made. The attempt contemplated by the statute must be manifested by acts which would end in the consummation of the particular offence, but for the intervention of circumstances independent of the will of the party."

In the case under consideration, to constitute the attempt charged in the information there must have been an intent to commit the crime of introducing spirituous liquors into Alaska, combined with an act done in pursuance of such intention that apparently, in the usual course of events, would have resulted in such introduction, unless interrupted by extraneous circumstances, but which actually fell short of such result. But it does not appear that anything was done by the defendant towards the commission of the intended crime of introducing spirituous liquors into Alaska, but to offer or attempt to purchase the same in San Francisco. The written order sent there by the defendant was, in effect, nothing more or less than an offer by him to purchase the one hundred gallons of whiskey; and it will simplify the case, to regard him as being present at the house of the San Francisco firm, at the time his order reached them, seeking to purchase the liquor with the intent of committing the crime of introducing the same into Alaska.

But the case made by the information stops here. It does not show that he bought any liquor. Whether he changed his mind, and countermanded the order before the delivery of the goods, or whether the firm refused to deal with him, does not appear.

Now, an offer to purchase whiskey, with the intent to ship it to Alaska, is, in any view of the matter, a mere act of preparation, of which the law takes no cognizance. As the matter then stood, it was impossible for the defendant to attempt to introduce this liquor into Alaska, because he did not own or control it. It was simply an attempt to purchase, an act harmless and indifferent in itself, whatever the purpose with which it was done.

-

But suppose the defendant had gone further, and actually succeeded in purchasing the liquor, wherein would the case differ from that of the person who bought the gun or poison with intent to commit murder, but did no subsequent act in execution of such purpose? In all essentials they are the same.

A purchase of spirituous liquor at San Francisco or Portland, either

in person or by written order or application, with intent to commit a crime with the same, as to dispose of it at retail without a license, or to a minor, or to introduce it into Alaska, is merely a preparatory act, indifferent in its character, of which the law, lacking the omniscience of Deity, cannot take cognizance.

At what period of the transaction the shipper of liquor to Alaska is guilty of an attempt to introduce the same there, is not very easily determined. Certainly the liquor must first be purchased - obtained in some way and started for its illegal destination. But it is doubtful whether the attempt, or the act necessary to constitute it, can be committed until the liquor is taken so near to some point or place of "the mainland, islands, or waters" of Alaska as to render it convenient to introduce it from there, or to make it manifest that such was the present purpose of the parties concerned. But this is a mere suggestion; and each case must be determined upon its own circumstances. The demurrer is sustained to the second count, and overruled as to the first.

GLOVER v. COMMONWEALTH.

SUPREME COURT OF APPEALS OF VIRGINIA. 1889.

[Reported 86 Virginia, 382.]

LEWIS, P., delivered the opinion of the court.

Among the exceptions taken by the prisoner at the trial was one to the refusal of the court to instruct the jury as follows: "If the jury believe from the evidence that the prisoner at the bar intended to commit a rape on the prosecutrix, Berta Wright, but before the act was finally executed, he voluntarily and freely abandoned it, they are to find a verdict of not guilty."1

This exception is not well taken. To have given the instruction would have been equivalent to telling the jury that upon an indictment for rape, the accused cannot be legally convicted of an attempt to commit a rape, which is not the law. The court, therefore, did not err in refusing to give it, nor did it err in subsequently instructing the jury, as in effect it did, that upon an indictment for rape, the accused may be found guilty of an attempt to commit a rape, which is in accordance with the law in this State. Givens v. Commonwealth, 29 Gratt. 830; Mings v. Same, 85 Va. 638. Indeed, the statute, now brought into section 4044 of the Code, expressly enacts that "on an indictment for felony, the jury may find the accused not guilty of the felony, but guilty of an attempt to commit such felony; and a general verdict of not guilty upon such indictment shall be a bar to a subsequent prosecution for an attempt to commit such felony."

1 Only so much of the opinion as refers to this exception is printed.

An attempt in criminal law is an apparent unfinished crime, and hence is compounded of two elements, viz.: (1) The intent to commit a crime; and (2) a direct act done towards its commission, but falling short of the execution of the ultimate design. It need not, therefore, be the last proximate act to the consummation of the crime in contemplation, but is sufficient if it be an act apparently adapted to produce the result intended. It must be something more than mere preparation. Uhl's Case, 6 Gratt. 706; Hicks' Case, 86 Va. 223.

Hence, when the prisoner took the prosecutrix into the stable, and there did the acts above mentioned, the attempt to commit a rape was complete; for there was the unlawful intent accompanied by acts done towards the commission of the intended crime, but falling short of its commission. Indeed, it is not denied that there was such attempt, but it is contended- and such was the main defence at the trial — that the subsequent voluntary abandonment of the criminal purpose cleansed the prisoner of all crime, so far as the attempt was concerned. But this is a mistaken view. For, on the contrary, it is a rule, founded in reason and supported by authority, that if a man resolves on a criminal enterprise, and proceeds so far in it that his act amounts to an indictable attempt, it does not cease to be such, though he voluntarily abandons the evil purpose.

In Lewis v. The State, 35 Ala. 380, which was an indictment for an attempt to commit a rape, it was ruled by the Supreme Court of Alabama that if the attempt was in fact made, and had progressed far enough to put the prosecutrix in terror and render it necessary for her to save herself from the consummation of the attempted outrage by flight, then the attempt was complete, though the prisoner had not in fact touched her; and that an after-abandonment by the prisoner of his wicked purpose could not purge the crime. And there are many other authorities to the same effect. See 1 Bish. Crim. Law (6th ed.), sec. 732, and cases cited.

COMMONWEALTH v. KENNEDY.

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1897.

[Reported 170 Mass 18.]

HOLMES, J.1 The first count is for mingling poison with tea, with intent to kill one Albert F. Learoyd. Pub. Sts. c. 202, § 32. The second count is for an attempt to commit murder by poisoning. Pub. Sts. c. 202, § 21. Whether the first count includes the matter of the second, with the effect that, even if the motion to quash the second count should have been granted, the verdict as rendered would stand on the first count (Commonwealth v. Nichols, 134 Mass. 531, 536, 537), need not be decided, as we are of opinion that the motion to quash properly was overruled.

1 Only so much of the opinion as discusses the law of attempt is given. — ED.