commit the offense, and it falls short of being the thing intended.3 It has been said that an attempt consists of two elements: (1) the intent to commit an offense, and (2) a direct ineffectual act towards pursuance of and in furtherance of the design." Uhl v. Com., 6 Gratt. (Va.) 706. "It includes all the acts essential to constitute the offense lying between preparation-getting in readi ness-to perform the acts, and their final consummation.'' Flower v. Continental Casualty Co., 140 Iowa 510, 118 N. W. 761. For other definitions and descriptions, see: Alabama. Jackson v. State, 91 Ala. 55, 8 So. 773, 24 Am. St. Rep. 860. Georgia. Groves v. State, 116 Ga. 516, 42 S. E. 755, 59 L. R. A. 598. Illinois. Graham v. People, 181 Ill. 477, 55 N. E. 179, 47 L. R. A. 731. Iowa. State v. Lewis, 173 Iowa 643, 154 N. W. 432, Ann. Cas. 1918 A 403. Kentucky. Lee v. Stanfill, 171 Ky. 71, 186 S. W. 1196; Nider v. Com., 140 Ky. 684, 131 S. W. 1024, Ann. Cas. 1913 E 1246. Louisiana. State v. Harwick, 133 La. 545, 63 So. 166. Maine. May v. Pennell, 101 Me. 516, 64 Atl. 885, 7 L. R. A. (N. S.) 286, 115 Am. St. Rep. 334, 8 Ann. Cas. 351; State v. Doran, 99 Me. 329, 59 Atl. 440, 105 Am. St. Rep. 278. Michigan. People v. Webb, 127 Mich. 29, 86 N. W. 406; People v. Youngs, 122 Mich. 292, 81 N. W. 114, 47 L. R. A. 108. Missouri. State v. Davidson, 172 Mo. App. 356, 157 S. W. 890. New Jersey. State v. Schwarzbach, 84 N. J. L. 268, 86 Atl. 423. North Carolina. State v. Hewett, 158 N. C. 627, 74 S. E. 356. Oregon. State v. Taylor, 47 Ore. 455, 84 Pac. 82, 4 L. R. A. (N. S.) 417, 8 Ann. Cas. 627. South Dakota. State v. Wood, 19 S. D. 260, 103 N. W. 25. Vermont. State v. Hurley, 79 Vt. 28, 64 Atl. 78, 6 L. R. A. (N. S.) 804, 118 Am. St. Rep. 934. Wisconsin. Rudolph v. State, 128 Wis. 222, 107 N. W. 466, 116 Am. St. Rep. 32. An attempt has variously been defined to be the trial or physical effort to do a particular thing, Wooldridge v. United States, 237 Fed. 775; a frustrated effort to execute some intended complete act, State v. Gunderson, 42 N. D. 498, 173 N. W. 791; State v. Cruikshank, 13 N. D. 337, 100 N. W. 697; an intent to do a thing coupled with an act tending toward that end, but which falls short of accomplishing the thing intended. 1 Bishop New Crim. Law, § 728; Burton v. State, 8 Ala. App. 295, 62 So. 394; Graham v. People, 181 Ill. 477, 55 N. E. 179, 47 L. R. A. 731; Scott v. People, 141 Ill. 195, 30 N. E. 329; Flower v. Continental Casualty Co., 140 Iowa 510, 118 N. W. 761; Com. v. Eagan, 190 Pa. St. 10, 42 Atl. 374; Shipp v. State, 81 Tex. Cr. 328, 196 S. W. 840. "To constitute an attempt there must be an intent to do a thing combined with an overt act, which falls short of the thing intended.' Com. v. Flaherty, 25 Pa. Super. Ct. 490; Com. v. Tadrick, 1 Pa. Super. Ct. 555. 2 Flower V. Continental Casualty Co., 140 Iowa 510, 118 N. W. 761; Shipp v. State, 81 Tex. Cr. 328, 196 S. W. 840. 3 Shipp v. State, 81 Tex. Cr. 328. 196 S. W. 840. its commission; and also that it consists of three elements: (1) the intent to commit the crime, (2) the performance of some act toward its commission, and (3) the failure to consummate its commission.5 An attempt to commit an offense involving personal violence differs from an assault with intent to commit it, in that an assault is necessary in the latter case and is not an essential element of an attempt. § 147. What attempts are indictable-In general. Generally speaking, it is an indictable misdemeanor at common law to attempt to commit any crime, whether the crime intended is a felony or a misdemeanor, and whether it is a common-law or a statutory crime.7 But some courts have held that the rule does not apply to statutory The difference between attempt and commission is that the act or step fails to produce the result intended. State v. Donovan, 5 Boyce (Del.) 40, 90 Atl. 220. The word "attempt" contemplates a failure. Collins v. State, 3 Heisk. (Tenn.) 14. As to whether there may be a conviction for an attempt where the evidence shows the commission of the intended offense, see § 157, infra. 4 Delaware. State v. Donovan, 5. Boyce 40, 90 Atl. 220; State v. Hollingsworth, 1 Marv. 528, 41 Atl. 144. Oklahoma. Ex parte Turner, 3 Okla. Cr. 168, 104 Pac. 1071. Oregon. State v. Taylor, 47 Ore. 455, 84 Pac. 82, 4 L. R. A. (N. S.) 417, 8 Ann. Cas. 627. Texas. Shipp v. State, 81 Tex. Cr. 328, 196 S. W. 840. Virginia. Glover v. Com., 86 Va. 382, 10 S. E. 420; Hicks v. Com., 86 Va. 223, 9 S. E. 1024, 19 Am. St. Rep. 891. "An evil intention, and a simultaneous resulting act, which, if fully performed, would constitute a substantive crime." State v. McGilvery, 20 Wash. 240, 55 Pac. 115. 5 Graham v. People, 181 Ill. 477, 55 N. E. 179, 47 L. R. A. 731; State v. Thompson, 31 Nev. 209, 101 Pac. 557; State v. Schwarzbach, 84 N. J. L. 268, 86 Atl. 423; Shipp v. State, 81 Tex. Cr. 328, 196 S. W. 840. 6 Ross v. State, 16 Wyo. 285, 93 Pac. 229, 94 Pac. 217. "While an assault with intent to commit a crime may constitute an attempt, the converse is not true, since there may be an attempt to commit a crime unaccompanied by an assault." People v. Allen, 32 Cal. App. 110, 162 Pac. 401. In State v. Pickett, 11 Nev. 255, 21 Am. Rep. 754, it was held that the defendant could not be convicted of an assault with intent to commit rape on a female under the age of consent where she consented, but that he might be convicted of an attempt to rape her notwithstanding such consent. And see § 148, infra. That an assault is not necessary to constitute an attempt, see § 152, infra. That it is necessary to constitute an assault with intent to commit a crime, see § 408, infra. 7 Alabama. Simpson v. State, 59 Ala. 1, 31 Am. Rep. 1. Kentucky. Lee v. Stanfill, 171 Ky. 71, 186 S. W. 1196; Nider v. Com., 140 Ky. 684, 131 S. W. 1024, Ann. Cas. 1913 E 1246. Massachusetts. Mass. 439. Com. v. Barlow, 4 North Carolina. State v. Slagle, 82 N. C. 653; State v. Jordan, 75 N. C. misdemeanors which are merely mala prohibita. And it has also been held that one cannot be punished for an attempt to commit a statutory crime where the statute defining it shows an intent to punish the completed crime only.9 Statutes in most jurisdictions now specifically provide for the punishment of persons who attempt to commit any crime,10 or certain 27; State v. Boyden, 13 Ired. (35 N. C.) 505. Pennsylvania. Smith v. Com., 54 Pa. St. 209, 93 Am. Dec. 686. Tennessee. Rafferty v. State, 91 Tenn. 655, 16 S. W. 728. Virginia. Hicks v. Com., 86 Va. 223, 9 S. E. 1024, 19 Am. St. Rep. 891. England. 1 Hawk. P. C. c. 25, § 3; Rex v. Roderick, 7 C. & P. 795. It is a misdemeanor at common law to attempt to commit a common-law misdemeanor which is malum in se, such as the unauthorized sale and disposition of a dead body for gain. 8 Thompson v. State, 105 Tenn. 177, 58 S. W. 213, 51 L. R. A. 883, 80 Am. St. Rep. 875. It is a misdemeanor to attempt to commit the statutory crime of burglary, Com. V. Flaherty, 25 Pa. Super. Ct. 490; or of conveying to a prisoner means to facilitate his escape, Com. v. Rodman, 34 Pa. Super. Ct. 607; or of destroying a dam. Com. v. Tolman, 149 Mass. 229, 21 N. E. 377, 3 L. R. A. 747, 14 Am. St. Rep. 414. Thompson V. State, 105 Tenn. 177, 58 S. W. 213, 51 L. R. A. 883, 80 Am. St. Rep. 875. Selling cotton in the seed between sunset and sunrise. Whitesides v. State, 11 Lea (Tenn.) 474. And see Taylor v. State, 11 Lea (Tenn.) 708. Usury. See Rex v. Upton, 2 Strange 816. Selling intoxicating liquors. Pulse v. State, 5 Humph. (Tenn.) 108. See also Com. v. Willard, 22 Pick. (Mass.) 476. 9 It was held that one could not be punished for an attempt to commit arson under a statute requiring the property burned to be of a specified value, and providing for punishment of the offender by imprisonment, and a fine not exceeding double the value of the property destroyed. Kinningham v. State, 120 Ind. 322, 22 N. E. 313. 10 See the statutes of the various states and the following cases: Alabama. Bradford v. State, 146 Ala. 150, 41 So. 471. Georgia. Leverett v. State, 20 Ga. App. 748, 93 S. E. 232. Idaho. State v. Downing, 23 Idaho 540, 130 Pac. 461. Maine. May v. Pennell, 101 Me. 516, 64 Atl. 885, 7 L. R. A. (N. S.) 286, 115 Am. St. Rep. 334, 8 Ann. Cas. 351; State v. Doran, 99 Me. 329, 59 Atl. 440, 105 Am. St. Rep. 278. Mississippi. Miss. 415, 46 (N. S.) 898. Stokes v. State, 92 So. 627, 21 L. R. A. New York. People v. O'Connell, 14 N. Y. Supp. 485. South Dakota. State v. Wood, 19 S. D. 260, 103 N. W. 25. Tennessee. Rafferty v. State, 91 Tenn. 655, 16 S. W. 728. Washington. State V. Dale, Wash., 197 Pac. 645. Such a statute may apply to attempts to commit crimes created after its enactment, or where the statute creating an offense is subsequently modified, or the punishment changed. In re Lloyd, 51 Kan. 501, 33 Pac. 307. particular crimes.11 There can be no such thing as an attempt to attempt a crime.12 But it has been held that an attempt to transport intoxicating liquor, in violation of law, does not necessarily include an actual transportation so as to prevent a conviction for the attempt; 18 and that an act which amounts to an attempt to commit a particular crime may be punished as an attempt though it also amounts to another substantive offense.14 It includes attempts to commit misdemeanors. State V. Dale, Wash., 197 Pac. 645. § 148. Intended act must be a crime. By the weight of authority, if, as a matter of law, the completed act accomplished as intended would not be a crime, the attempt to commit it is not criminal, whatever may be the party's state of mind.15 For example, it is not a door or window is fractured. Such damage to property might, separately considered, come within the definition of malicious mischief; but the offender convicted of an attempt to commit burglary where burglary was charged, would not be heard to say that he could not be punished for such attempt because his fracture of the door or window was itself an offense punishable by law.' 11 See the statutes of the various states and the following cases: Attempt of prisoner to escape. Bradford v. State, 146 Ala. 150, 41 So. 471. A statute providing for the punishment of an attempt at insurrection does not apply to the offense of an attempt to incite insurrection. Wilson v. State, 53 Ga. 205. Inciting or attempting to procure another to commit perjury. People v. Bloom, 149 N. Y. App. Div. 295, 133 N. Y. Supp. 708. Attempts to procure an abortion. See § 153, infra. 15 In re Schurman, 40 Kan. 533, 20 Pac. 277; May v. Pennell, 101 Me. 516, 64 Atl. 885, 7 L. R. A. (N. S.) 286, 115 Am. St. Rep. 334, 8 Ann Cas. 351; People v. Jaffe, 185 N. Y. 497, 78 N. E. 169, 9 L. R. A. (N. S.) 263, 7 Ann. Cas. 348, rev'g 112 App. Div. 516, 98 N. Y. Supp. 486. And other cases cited in the following notes: In Rex v. Edwards, 6 C. & P. 521, it was held, in effect, that a person who forcibly compelled another to write an order for the payment of money, intending to take the orler, was not guilty of an attempt to rob, as the act would not have been robbery if he had accomplished his purpose. In State v. Stow, 83 N. J. L. 14, 84 Atl. 1063, it was held that a person could not be convicted in New Jersey of an attempt to commit a crime where he could not have been prose crime at common law to procure an abortion with the consent of the woman, where she is not quick with child; and therefore an attempt to procure an abortion under such circumstances is not indictable, though the party may not know that the child has not quickened.16 So, by the weight of authority, where it is held that a boy under fourteen years of age cannot commit the crime of rape, he cannot be guilty of an attempt to rape.17 And a person cannot be convicted of an attempt to commit the crime of receiving goods knowing them to have been stolen, where it appears that the property which he sought to receive was not in fact stolen, though he thought it was.18 Likewise an attempt to commit subornation of perjury is not shown when it does not appear that any proceeding was pending in which the false testimony was to be used,19 or that the giving of the testimony would have been perjury,20 or that the defendant did not believe it to be true.21 Nor can one be convicted of an attempt to commit forgery by the alteration of an instrument where the alteration would not have been forgery because in an immaterial part of the instrument.22 But it has been held that one may be guilty of an attempt to commit extortion by putting in fear, although the victim parts with the money for the purpose of prosecuting the accused and not under the influence of fear.23 Consent after an attempt does not prevent the attempt from being a crime.24 And consent is no defense where the person against whom cuted in that state if the attempted crime had actually been committed. 16 State v. Cooper, 22 N. J. L. 52, 51 Am. Dec. 248. And see § 369, infra. 17 State v. Handy, 4 Harr. (Del.) 566; State v. Sam, 1 Winst. (N. C) 300; Foster v. Com., 96 Va. 306, 31 S. E. 503, 42 L. R. A. 589, 70 Am. St. Rep. 846; Reg. v. Phillips, 8 C. & P. 736; Rex v. Eldershaw, 3 C. & P. 396. Contra, Com. v. Green, 2 Pick. (Mass.) 380. And see People v. Randolph, 2 Park. Cr. (N. Y.) 213; Williams v. State, 14 Ohio 222, 45 Am. Dec. 536. See also § 907, infra. 18 Knowledge that the property is stolen is an essential element of the completed offense, and a person cannot know that property was stolen when in fact it was not. People v. Jaffe, 185 N. Y. 497, 78 N. E. 169, 9 19 Nicholson v. State, 97 Ga. 672, 25 S. E. 360. 20 People v. Bloom, 149 N. Y. App. Div. 295, 133 N. Y. Supp. 708. That it would have been material to the issue. People v. Thomas, 63 Cal. 482. 21 People v. Thomas, 63 Cal. 482. 22 Wilson v. State, 85 Miss. 687, 38 Ga. 46. And see § 568, infra. 23 People v. Gardner, 144 N. Y. 119, 38 N. E. 1003, 28 L. R. A. 699, 43 Am. St. Rep. 741, rev'g 73 Hun 66, 25 N. Y. Supp. 1072. As to entrapment generally, see § 187 et seq., infra. |