Home >> Bouvier's Law Dictionary >> Allegiance to And The Manner Of >> Attempt


crime, cr, am, act, people, rep, st, mass and intent

ATTEMPT. An endeavor to accomplish a crime carried beyond mere preparation, but falling short of execution of the ultimate de :sign in any part of it. .Com. v. McDonald, 5 Cush. (Mass.) 367; Griffin v. State, 26 Ga. 493.

An intent to do a particular criminal thing combined with an act which falls short of the thing intended. 1 Bish. Cr. Law § 728; Johnson v. State, 14 Ga. 55; State v. Mar shall, 14 Ala. 411; People v. Lawton, 56 Barb. (N. Y.) 126; Cunningham v. State, 49 Miss. 685.

"An attempt, in general, is an overt act done in pursuance of an intent to do a spe cific thing, tending to the end, but falling short of complete accomplishment of it "In law, the definition must have this fur ther qualification, that the overt act must be sufficiently proximate to the intended crime to form one of the natural series of acts which the intent requires for its full execution." Mitchell, J., in Cora. v. Eagan, 190 Pa. 10, 21, 42 Atl. 374, 377.

To constitute an attempt, there must be an intent to commit some act which would be indictable, if done, either from its own character of that of its natural and probable consequences; State v. Jefferson, 3 Harr. (Del.) 571; Moore v. State, 18 Ala. 532 ; People v. Shaw, 1 Park. Cr. Cas. (N. Y.) 327; Davidson v. State, 9 Humphr. (Tenn.) 455 ; 9 C. & P. 518; 1 Crawf. & D. 156, 186 ; 1 Bish. Cr. Law § 731; an act apparently adapted to produce the result intended ; Whart. Cr. L. § 182 ; State v. Clarissa, 11 Ala. 57; Cora. v. Manley, 12 Pick. (Mass.) 173 ; Dunbar v. Harrison, 18 Ohio St. 32; State v. Rawles, 65 N. C. 334 ; Kunkle v. State, 32 Ind. 220; U. S. v. Morrow, 4 Wash. C. C. 733, Fed. Cas. No. 15,819; Rasnick v. Com., 2 Va. Cas. 356; 6 C. & P. 403; 1 Leach 19 (though some cases require a complete adaptation; 1 Bish. Cr. L. 749); an act im mediately and directly tending to the exe cution of the principal crime, and committed by the prisoner under such circumstances that he has the power of carrying his in tention into execution; 1 F. & F. 511; in cluding solicitations of another ; 2 East 5; People v. Bush, 4 Hill (N. Y.) 133 ; State v. Avery, 7 Conn. 266, 18 Am. Dec. 105 ; Cora. v. Harrington, 3 Pick. (Mass.) 26; U. S. v. Worrall, 2 Dall. (U. S.) 384, 1 L. Ed. 426; but mere solicitation, not directed to the pro curement of some specific crime, is not an attempt; Whart. Cr. L. 179; see SOLICITA TION ; and the crime intended must be at least a misdemeanor ; 1 C. & M. 661, n. ; Respublica v. Roberts, 1 Dall. (U. S.) 39, 1 L. Ed. 27. An abandoned attempt, there be ing no outside cause prompting the abandon ment, is not indictable; Whart. Cr. L. § 137.

It has been held that an attempt to com mit a crime, which could not, under the cir cumstances, be consummated, is not a crim inal attempt; Dears. & B. C. C. 197; 9 Cox

C. C. 497; People v. Moran, 123 N. Y. 254, 25 N. E. 412, 10 L. R. A. 109, 20 Am. St. Rep. 732; contra, 38 W. R. 95 (where in a re mark which seems both obiter and casual, the Court of Cr. Cp. Res. disapproves the earlier English cases) ; Com. v. McDonald, 5 Cush. (Mass.) 365; People v. Jones, 46 Mich. 441, 9 N. W. 486; State v. Wilson, 30 Conn. 500; Rogers v. Com., 5 S. & R. (Pa.) 463; Hamilton v. State, 36 Ind. 280, 10 Am. Rep. 22. These are commonly known as the "pickpocket cases," but the doctrine that one may be guilty of an attempt to commit a crime, when it was for some reason unknown to the perpetrator, impossible, has been ap plied in cases of other crimes, as homicide; People v. Lee Kong, 95 Cal. 666, 30 Pac. 800, 17 L. R. A. 626, 29 Am. St. Rep. 165 ; brib ery ; Ex parte Bozeman, 42 Kan. 451, 22 Pac. 628 ; State v. Mitchell, 170 Mo. 633, 71 S. W. 175, 94 Am. St. Rep. 763; obtaining by false pretense; 11 Cox C. C. 570; extortion ; Peo ple v. Gardner, 144 N. Y. 119, 38 N. E. 1003, 28 L. R. A. 699, 43 Am. St. Rep. 741; bur glary, where there was no property on the premises which could be stolen ; State v. Beal, 37 Ohio St. 108, 41 Am. Rep. 490; abor tion, where the woman was not pregnant; 2 Cox C. C. 41; but not where the woman was not quick with child when that was required to constitute the offence of procuring an abortion; State v. Cooper, 22 N. J. L. 52, 51 Am. Dec. 248; or where the charge was of an attempt to commit rape where the circum stances were such that if the object had been obtained it would not have been rape ; State v. Brooks, 76 N. C. 1; People v. Quin, 50 Barb. (N. Y.) 128 ; contra, 24 Q. B. D. 357; Com. v. Shaw, 134 Mass. 221; Rhodes v. State, 1 Coldw. (Tenn.) 351. The cases on this subject are collected in an article on "Criminal Attempts" by J. H. Beale, Jr., in 16 Harv. L. Rev. 491. See, also, 9 L. R. A. (N. S.) 263, note. The offense may exist though the act may be impossible of ac complishment by the methods employed; Com. v. Kennedy, 170 Mass. 18, 48 N. E. 770.

Mere preparations, though made with crim inal intent, do not constitute an attempt; [1903] T. S. 868 (So. Afr.).

An indictment has been upheld upon a criminal intent coupled with an act (procur ing dies for counterfeiting) which fell short of an attempt under their statute ; 33 E. L. & E. 533. See 1 Bish. Cr. L. § 724.

An attempt to commit a crime was not in itself a crime, in the early common law, but it is now generally made such by statute ; and in some cases attempts are specially pro vided against with reference to particular crimes, as arson. See 4 L. R. A. (N. S.) 417, note, where cases under some state statutes are found. See RAPE; SUICIDE.