furtherance of this design will constitute an attempt.31

No violence, 32 33 or wrongfulness except in the purpose need be present, and it has been held that the act need not possess any element of an assault.34 The mere possession of the instrument of wrongdoing does not render one guilty of attempt.35

Whether the mere handing of an instrument to another, requesting him to do the criminal act, is an attempt, has given rise to discussion and has been decided both ways.36

[§ 94] C. The Intention. To convict one of an attempt to commit a crime, it is necessary to show that the overt act was done with the specific intent to commit that particular crime.37 Such an intent is essential.38 A man may be guilty of murder, although he may not intend to cause death; but the specific intent to kill must be shown to convict one

31. Stokes v. State, 92 Miss. 415, 46 S 627, 21 LRANS 898. 32. 37. Peo. v. Mills, 178 N. Y. 274, 70 NE 786, 67 LRA 131, 18 N. Y. Cr. 269 (where defendant took certain public records with the intention of appropriating them); Reg. v. Dale, 6 Cox C. C. 14 (purchasing poison and putting it where it is likely to be taken is sufficient); Reg. v. Goodman, 22 U. C. C. P. 338 (lighting a match and trying to apply it to a blanket is sufficient).

33. 1 Bishop New Cr. L. (8th ed) § 762.

of an attempt to commit murder.39

So also to convict one of an attempt to rape it must be shown that he intended to have connection with the woman by force and without her consent, and not merely by persuasion,40 unless she was unconscious, insane, or of such an age that she was incapable of consenting. The principle applies also in prosecutions for attempts to commit other offenses.42

41

Implication of Law. It has been held that the intent cannot be implied as a matter of law from the existence of the same facts and circumstances which would, in case the deed had been accomplished, have furnished conclusive evidence of an intention to commit the substantive crime.43 On the other hand, however, it has often been held that, while the specific intent is essential, its existence may be inferred from the circumstances,* 44 under the usual rule that every sane man is presumed to intend the usual and probable consequences of his acts.45 La.-State v. Evans, 39 La. Ann. 912, 3 S 63.

Mass.-Com. v. Harney, 10 Metc.

422.

Mich.-Roberts v. Peo., 19 Mich 401; Maher v. Peo., 10 Mich. 212, 8f AmD 781.

Minn.-State v. Dumas, 118 Minn. 77, 136 NW 311, 41 LRANS 439. Miss. Cunningham V. State, 49 Miss. 685; Jeff v. State, 37 Miss. 321.

Mo.-State v. Owsley, 102 Mo. 678, 15 SW 137; State v. Stewart, 29 Mo. 419.

Nebr. Skinner v. State, 28 Nebr. 814, 45 NW 53.

Nev.-State v. Clark, 32 Nev. 145, 104 P 593, AnnCas1912C 754; State v. Lung, 21 Nev. 209, 28 P 235, 37 AmSR 505.

N. Y.-Slatterly v. Peo., 58 N. Y. 354; Peo. V. Quin, 50 Barb. 128; Peo. v. Kirwan, 22 NYS 160; Peo. v. Long, 2 Edm. Sel. Cas. 129; Peo. v. Vinegar, 2 Park. Cr. 24.

N. C.-State v. Massey, 86 N. C. 658, 41 AmR 478; State v. Brooks, 76 N. C. 1.

N. D.-State v. Cruikshank, 13 N. D. 337, 100 NW 697.

Oh.-Hanson v. State, 43 Oh. St. 376, 1 NE 136; Sharp v. State, 19 Oh. 379.

Tenn.-Davidson Humphr. 455.

V. State, 9

Tex.-Henderson v. State, 12 Tex. 525; Carter v. State, 28 Tex. A. 355, 13 SW 147; Brown v. State, 27 Tex. A. 330, 11 SW 412; Moore v. State, 26 Tex. A. 322, 9 SW 610; Pruitt v. State, 20 Tex. A. 129; White v. State, 13 Tex. A. 259; Johnson v. State, 4 Tex. A. 598.

Va.-Hall v. Com., 78 Va. 678. Wis.-Moore v. State, 79 Wis. 546, 48 NW 653.

Thus an intent to commit murder may be inferred from the use of a deadly weapon or other attendant circumstances, in the absence of evidence negativing such intent;46 and an intent to rape may be inferred from the circumstances.4

[§ 95] 4. Abandonment of Attempt. The voluntary abandonment of the attempt before it is finally consummated may be urged by the accused to show his intent,48 but if he has proceeded beyond mere preparation, his voluntary abandonment will not bar his conviction.49 But it is no evidence in favor of the accused, as showing an absence of intent that the design was abandoned before consummation when it appears that he recognized his inability to carry his purpose into effect.50

[96] 5. Inability to Commit Intended Crime. To constitute an indictable attempt to commit a crime, its consummation must be apparently possible, or in other words, there must be at least an Mass.-Com. v. Harney, 10 Metc.

This case was

422.

Miss. Jeff v. State, 37 Miss. 321.
Mo.-State v. Smith, 80 Mo. 516.
N. Y.-Peo. v. Long, 2 Edm. Sel.
Cas. 129.

45. Hankins v. State, 103 Ark. 28, 145 SW 524; Cole v. State, 10 Ark. 318; State v. Davis, 24 N. C. 153: Wood v. State, 27 Tex. A. 393, 11 SW 449; Rex v. Moore, 3 B. & Ad. 184, 23 ECL 88, 110 Reprint 68; Reg. v. Jones, 9 C. & P. 258, 38 ECL 159; Rex v. Holt, 7 C. & P. 518, 32 ECL 737; Rex v. Bailey, R. & R. 253.

46. See Homicide [21 Cyc 777 note 38].

47. See Rape [33 Cyc 1494 text and note 76].

48. State v. Allen, 47 Conn. 121; Taylor v. State, 50 Ga. 79; Harrell v. State, 13 Tex. A. 374.

49. Ala.-Lewis v. State, 35 Ala. 380.

Ga. Taylor v. State, 50 Ga. 79.

sons are constantly passing, and it
fall upon a person passing by and
kill him, this would be, by the com-
mon law, murder; but if instead of
killing him, it inflicts only a slight
injury, the party could not be con-
victed of an assault with intent to
commit murder").
cited in Simpson v. State, 59 Ala.
1, 31 AmR 1, a prosecution for as-
sault with intent to murder, where
a charge that "the law presumes
every man to intend the necessary
consequences of his own acts" was
held, as applied to murder, a familiar
principle of evidence, but that the
conclusion that, "if a man shoots
another man with a deadly weapon,
the law presumes that by such shoot-
ing, he intended to take the life of
the person shot" was held, as ap-
plied to the case at bar, erroneous.
To same effect White v. State, 13
Tex. A. 259, 261, where a similar
charge was held to be erroneous, and
the court, by Hurt, J., said: "If, to
constitute the offense for which the
defendant is convicted, it is neces-
sary that the intent to kill should
exist, the above charge is not the
law, and the judgment must be re-
versed. The question therefore pre-
sented is, 'Must the party intend to
kill?' Article 500 of the Penal Code
provides that, 'If any person shall as-
sault another with intent to murder,
he shall be punished,' etc. Can a
party assault another with intent to
murder without the intent to kill?
Can murder be committed in the ab-
sence of the intent to kill? We an-
swer, yes. Does it follow from this
concession that an assault with in-
tent to murder can be made in the
absence of the intent to kill?
Eng. Reg. v. Munson, 2 Cox C. C.
think not." See also Morgan v. State, 186.
33 Ala. 413, 414 (where, in a prose- [a] Illustrations.—(1) Thus it will
cution for assault with intent to not avail him as a defense, if he de-
murder, a charge that "the present-sisted on account of being prevented
ing of a pistol, loaded and cocked, by surprise, or by the interruption
within carrying distance, by one
man at another, with his finger on
the trigger, in an angry manner, is,
of itself, an assault with intent to

We

Eng.-Reg. v. Donovan, 4 Cox C. C. 399; Reg. v. Cruse, 8 C. & P. 541, 34 ECL 881; Rex v. Howlett, 7 C. & P. 274, 32 ECL 610; Rex v. Davis, 1 C. & P. 306, 12 ECL 183; Reg. v. Ryan, 2 M. & Rob. 213. See John v. Reg., 15 Can. S. C. 384. And see Reg. v. Lallement, 6 Cox C. C. 204. 39. See Homicide [21 Cyc 777 text murder," was held erroneous, and and note 38].

40. 41.

See Rape [12 Cyc 179].
Rape [33 Cyc 1434, 1435].

42. See Abortion § 16; Arson § 26; Burglary § 57; False Pretenses [19 Cyc 416]; Larceny [25 Cyc 62]; Mayhem [26 Cyc 1598]; Robbery [34 Cyc 1812 note 1]; and other specific crimes.

43. Moore v. State, 18 Ala. 532, 534 (where the court, per Chilton, J., said: "There are a number of cases, where a killing would amount to murder, and yet the party did not intend to kill.-1 Russ, on Crimes, 438, 453-5. As if one from a housetop recklessly throw down a billet of wood upon the side-walk where per

the court, by Stone, J., said: "It ig-
nores one of the material facts which
constitute the offense for which the
prisoner was on trial").

44. Ala.-Jackson v. State, 94 Ala.
85, 10 S 509; Walls v. State, 90 Ala.
618, 8 S 680.

Cal.-Peo. v. Mize, 80 Cal. 41, 22
P 80.

Ga.-Patterson v. State, 85 Ga. 131,
11 SE 620, 21 AmSR 152; Carter v.
State, 35 Ga. 263.

Ill-Scott v. Peo., 141 Ill. 195, 30
NE 329 (attempt to commit an abor-
tion); Crosby v. Peo., 137 Ill. 325, 27
NE 49.

Iowa.-State v. Grossheim, 79 Iowa
75 44 NW 541.

Mo.-State v. Hayes, 78 Mo. 307. N. C.-State v. Mehaffey, 132 N. C. 1062, 44 SE 107; State v. Williams, 121 N. C. 628, 28 SE 405; State v. Elick, 52 N. C. 68.

Pa.-Com. v. Eagan, 190 Pa. 10, 42
A 374.

Va.-Glover v. Com., 86 Va., 382, 10
SE 420.
Wash.-State V. McGilvery, 20
Wash. 240, 55 P 115.

Ont.-Reg. v. Goodman, 22 U. C.
C. P. 338.

50. U. S.-U. S. v. Pryor, 27 F. Cas. No. 16,093, 3 Wash. C. C. 234. Ga.-Taylor v. State, 50 Ga. 79. Mo.-State v. Hayes, 78 Mo. 307. N. C.-State V. Elick, 52 N. C.

68.

or force of others, as where one who has attempted to commit rape was frightened away. Taylor v. State, 50 Ga. 79; State v. McDaniel, 60 N. C. 245; State v. Elick, 52 N. C. 68. (2) So, where the accused made a hole in the roof of a building with intent to enter and steal, but was disturbed. Reg. v. Bain, 9 Cox C. C. 98. (3) And where one went to a stack with the intention of setting fire to it, and lighted a match for that purpose, but abandoned the attempt because he found that he was watched, he was held to have committed an attempt. Reg. v. Munson, 2 Cox C. C. 186; Reg. v. Taylor, 1 F. & F. 511. To same effect State v. Hayes, 78 Mo. 307, (4) Where one advancing to strike another was intercepted, he was nevertheless held guilty. Stephens V. Myers, 4 C. & P. 349, 19 ECL 548.

LRA 699 [rev 73 Hun 66, 25 NYS 1072]; Peo. v. Moran, 123 N. Y. 254, 25 NE 412, 20 AmSR 732, 10 LRA 109; Peo. v. DuVeau, 105 App. Div. 381, 94 NYS 225; Peo. v. Spolasco, 33 Misc. 22, 67 NYS 1114.

N. C.-State v. Davis, 23 N. C. 125, 35 AmD 735.

Oh.-State v. Beal, 37 Oh. St. 108, 41 AmR 490.

Pa.-Rogers v. Com., 5 Serg. & R.

S. C.-State v. Glover, 27 S. C. 602, 4 SE 564.

Tenn.-Clark v. State, 86 Tenn. 511, 8 SW 145.

Eng.-Reg. v. Brown, 24 Q. B. D. 357; Rex v. Eldershaw, 3 C. & P. 396, 14 ECL 628; Reg. v. Ring, 17 Cox C. C. 491; Reg. v. Goodall, 2 Cox C. C. 41.

Ont.-Reg. v. Goodman, 22 U. C. C. P. 338.

"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." Com. v. Jacobs, 9 Allen (Mass.) 274, 275.

55, See Larceny [25 Cyc 62]; Robbery [34 Cyc 1812 note 1]. 56. See Homicide [21 Cyc 780]. 57. See Burglary §§ 56, 57.

See Rape [33 Cyc 1431 text and note 21].

N. J.-State v. Cooper, 22 N. J. L. 52, 51 AmD 248.

N. Y.-Peo. v. Jaffe, 185 N. Y. 497, 78 NE 169, 9 LRANS 263, 7 AnnCas 348 [rev 112 App. Div. 516, 98 NYS 486].

N. C.-State v. Sam, 60 N. C. 293. Va.-Foster v. Com., 96 Va. 306, 31 SE 503, 70 AmSR 846, 42 LRA 589.

Eng.-Rex v. Edwards, 6 C. & P. 521, 25 ECL 555 (an attempt to rob); Rex v. Eldershaw, 3 C. & P. 396, 14 ECL 628.

Contra Com. V. Green, 2 Pick. (Mass.) 380.

[a] Attempt to rape-By the weight of authority, a boy who is so young as to be incapable, as a matter of law, of committing rape, cannot be guilty of an attempt to rape. See Rape [33 Cyc 1430 text and note 25].

[b] An attempt to cause an abortion before the child has quickened is not an indictable offense, if the crime of abortion cannot be committed, as at common law, until the

65

67

ment, arson,"
64
murder,66 sodomy, or adultery
where adultery is a felony;68 or to utter counter-
feit money or forged bills.69 One who solicits an-
other to commit a felony is guilty of a misdemeanor
only, if the felony is not committed.70 If the fel-
ony is committed, he is guilty as accessary before
the fact, if absent, and as principal in the second
degree, if present, at the time of its commission.71
It has been held that it is not a crime to counsel
the commission of an act in a foreign jurisdiction,
which act is not punishable as an offense against
the law of the forum when performed in the for-
eign jurisdiction.72 Statutes have been enacted in
some jurisdictions making it a misdemeanor to
counsel, advocate, or incite to the commission of
certain crimes;'
;73 and under these statutes it has
been held that the question whether the crime ad-
S. C.-State v. Bowers, 35 S. C. 262,
14 SE 488, 28 AmSR 847, 15 LRA
199.
Tenn.-Collins v. State, 3 Heisk.

14.

Vt.-State v. Keyes, 8 Vt. 57, 30 AmD 450.

Wis.-Rudolph v. State, 128 Wis. 222, 107 NW 466, 116 AmSR 32.

Eng. Reg. v. Gregory, L. R. 1 C. C. 77; Rex v. Vaughan, 4 Burr. 2494, 98 Reprint 308; Reg. v. Ransford, 13 Cox C. C. 9; Rex. v. Butler, 6 C. & P. 368, 25 ECL 478; Rex v. Phillips, 6 East 464,102 Reprint 1365; Rex v. Higgins 2 East 5, 102 Reprint 269; Reg. v. Quail, 4 F. & F. 1076; Reg. v. Turvy, Holt K. B. 364, 90 Reprint 1101; Rex v. Plympton, 2 Ld. Raym. 1377, 92 Reprint 397; Rex v. Hickman, 1 Moody C. C. 34; Rex v. Johnson, 2 Show. 1, 89 Reprint 753. 64. Com, v. McGill, Add. (Pa.) 21; Reg. v. Gregory, L. R. 1 C. C. 77; Rex v. Higgins, 2 East 5, 102 Reprint 269; Reg. v. Quail, 4 F. & F. 1076; Reg. v. Collingwood, 6 Mod. 288, 87 Reprint 1029; Reg. v. Daniell, 6 Mod. 99, 87 Reprint 856. See Larceny [25 Cyc 63].

65. Del.-State v. Donovan, 28 Del. 40, 90 A 220.

Ky. Williams v. Com., 153 Ky. 710,

156 SW 372.

Mass.-Com. v. Peaslee, 177 Mass. 267, 59 NE 55; Com. v. Flagg, 135 Mass. 545.

N. Y.-Peo. v. Bush, 4 Hill 133. Pa.-Com. V. Hutchinson, 6 Pa. Dist. 709, 19 Pa. Co. 360 [aff 6 Pa. Super. 405, 42 Wkly NC 137]; Com. v. McGregor, 6 Pa. Dist. 343.

S. C.-State v. Bowers, 35 S. C. 262, 14 SE 488, 28 AmSR 847, 15 LRA

199.

But see McDade v. Peo., 29 Mich. 50 (holding that a statutory provision that any person who "shall by any other means attempt to cause any building to be burnt, shall be punished," etc., did not include mere solicitation).

66. Begley v. Com., 60 SW 847, 22 KyL 1546; Peo. v. Most, 171 N. Y. 423, 64 NE 175, 58 LRA 509 [aff 71 App. Div. 160, 75 NYS 591]; Damarest v. Haring, 6 Cow. (N. Y.) 76; Com. v. Randolph 146 Pa. 83, 23 A 388, 28 AmSR 782; Stabler v. Com., 95 Pa. 318, 40 AmR 653; Reg. v. Williams, 1 C. & K. 589, 47 ECL 589; Reg. v. Banks, 12 Cox C. C. 393. See Homicide [21 Cyc 778].

[a] Soliciting another to poison a third person is a crime. Collins v. State, 3 Heisk. (Tenn.) 14; Hicks v. Com., 86 Va. 223, 9 SE 1024, 19 AmSR 891; Reg. v. Michael, 2 Moody C. C. 120. 67. Rex v. Hickman, 1 Moody C. C. 34. And see Reg. v. Rowed, 3 Q. B. 180, 43 ECL 688, 114 Reprint 476; Reg. v. Ransford, 13 Cox C. C. 9. See Sodomy [36 Cyc 506]. 68. State v. Avery, 7 Conn. 266, 18 AmD 105. State v. Dovis, Tapp. (Oh.) 171.

69.

vocated has actually been committed is immaterial.** Misdemeanors. Some courts have held that a solicitation to commit a misdemeanor is not a crime;75 but the weight of authority, discards the test depending on the distinction between felonies and misdemeanors and makes the decision depend on whether the crime advised or counseled is of a high and aggravated character, and such as seriously affects the public peace and economy.76

1

[§ 98] 2. As an Attempt. Some of the courts have treated solicitation to commit a crime as an attempt, whether the person solicited agrees to commit the crime or not.77 By the weight of authority, however, it is not a sufficient overt act to be indictable as an attempt, but must be indicted as a distinct offense.78 Of course if solicitation is 70. Begley v. Com., 60 SW 847, 22 the counsel, advice or enticement of KyL 1546; Com. v. Flagg, 135 Mass. another, is of a high and aggravated 545; Com. v. Randolph, 146 Pa. 83, 23 character, tending to breaches of the A 388, 28 AmSR 782; Reg. v. Gregory, peace or other great disorder and vioL. R. 1 C. C. 77; Rex v. Cole, 3 Ont. lence, being what are usually considL. 389, 1 OntWR 117. ered mala in se or criminal in themselves, in contradistinction to mala prohibita, or acts otherwise indifferent than as they are restrained by positive law." Com. v. Willard, 22 Pick. (Mass.) 476, 478 (per Shaw, C. J.).

[a] In New York, under Pen. L.
§ 43, providing that a person who
willfully commits any act which se-
riously endangers the public peace,
for which no other punishment is ex-
pressly prescribed by the code, is
guilty of a misdemeanor, a publica-
tion which instigates revolution and
murder and suggests the persons to
be murdered, through the positions
occupied, which advises all to dis-
charge their duty to the human race
by murdering those who enforce the
law, and which names poison and
dynamite as the agencies to be used,
endangers the public peace, and the
publishers thereof is guilty of a mis-
demeanor. Peo. v. Most, 171 N. Y.
423, 64 NE 175, 58 LRA 509 [aff 71
App. Div. 160, 75 NYS 591, 16 N. Y.
Cr. 392 (aff 36 Misc. 139, 73 NYS
220, 16_N. Y. Cr. 105)].

71. Begley v. Com., 60 SW 847, 22
KyL 1546. See infra §§ 114, 116.
72. Rex v. Walken, 14 B. C. 1
(advising a woman to submit to an
abortion).

73. State v. Quinlan, 86 N. J. L.
120, 91 A 111; Peo. v. Dessús, 12 Por-
to Rico 330.

74.

State v. Quinlan, 86 N. J. L.
120, 91 A 111; State v. Boyd, 86 N.
J. L. 75, 91 A 586; Peo. v. Dessús, 12
Porto Rico 330.

"There are many misdemeanors, which affect the public more injuriously than some felonies, and which justly merit and have attached to them a greater punishment. It would be a legal absurdity to hold that the solicitation to commit a misdemeanor of a high and aggravated character is no offence, while the solicitation to commit the most trifling theft would be." Com. v. McGregor, 6 Pa. Dist. 343, 346.

[a] Solicitation to commit an assault and battery has been held a crime. U. S. v. Lyles, 26 F. Cas. No. 15,646, 4 Cranch C. C. 469.

has

[b] Other illustrations.-It also been held a crime: (1) To endeavor to impede the course of justice by urging a witness to absent himself from the trial. State V. Carpenter 20 Vt. 9; State v. Keyes, 8 Vt. 57, 30 AmD 450; State v. Caldwell, 2 Tyler (Vt.) 212. See Obstructing Justice [29 Cyc 1322]. (2) To solicit another to accept or to give a bribe. U. S. v. Worrall, 28 F. Cas. No. 16,766, 2 Dall. 384, 1 L. ed. 75. Lamb v. State, 67 Md. 524, 10 426; Walsh v. Peo., 65 Ill. 58, 16 AmR A 208, 298; Smith v. Com., 54 Pa. 209, 569; State v. Ellis, 33 N. J. L. 102. 97 93 AmD 686; Reg. v. Pierson, 1 Salk. AmD 707; Rex v. Vaughan, 4 Burr. 382, 91 Reprint 333; Lockey v. Dan- 2494, 98 Reprint 308; and Bribery S gerfield, Str. 1100, 93 Reprint 1057. 9. (3) To solicit another to commit [a] Adultery. Thus, where adul-embracery. State v. Sales, 2 Nev. tery is merely a misdemeanor, it has 268. And see Embracery [15 Cyc been held that solicitation to commit 540]. (4) To solicit another to fight adultery is not punishable. Smith v. a duel. Rex v. Philipps, 6 East 464, Com., 54 Pa. 209, 93 AmD 986. 102 Reprint 1365; Rex v. Rice, 3 East 76. 581, 102 Reprint 719. See under statutes Com. v. Tibbs, 1 Dana (Ky.) 524; State v. Farrier, 8 N. C. 487; State v. Taylor, 5 S. C. L. 243. And see Dueling [14 Cyc 1117].

Del.-State v. Donovan, 28
Del. 40, 90 A 220.
Mass.-Com. v. Flagg, 135 Mass. 545.
Mo.-State v. Sullivan, 110 Mo. A.
75, 84 SW 105.

Pa.-Com. v. Randolph, 146 Pa.,
83, 23 A 388, 28 AmSR 782; Com. v.
McHale, 97 Pa. 397, 39 AmR 808;
Com. v. Hutchinson, 19 Pa. Co. 360.

Eng. Reg. V. Ransford, 13 Cox
C. C. 9; Rex v. Higgins, 2 East 5, 102
Reprint 269.

"It is difficult to draw any pre-
cise line of distinction between the
cases in which the law holds it a mis-
demeanor to counsel, entice or induce
another to commit a crime, and
where it does not. In general it has
been considered as applying to cases
of felony, though it has been held
that it does not depend upon the mere
legal and technical distinction be-
tween felony and misdemeanor. One
consideration, however, is manifest in
all the cases, and that is, that the
offence proposed to be committed, by

77. Griffin V. State 26 Ga. 493; Peo. v. Bloom, 149 App. Div. 295; 133 NYS 708; Peo. v. Mills, 41 Misc. 195, 83 NYS 947; Peo. v. Bush, 4 Hill (N. Y.) 133; McDermott v. Peo., 5 Park. Cr. (N. Y.) 102; State v. Bowers, 35 S. C. 262, 14 SE 488, 28 AmSR 847, 15 LRA 199; Rex v. Higgins, 2 East 5, 102 Reprint 269.

[a] In Washington (1) in a case in which the crime charged was an attempt to commit sodomy it was said that "an attempt may consist of acts of persuasion or solicitation or threats." State V. George, 79 Wash. 262, 140 P 337. (2) But it has been held that solicitation to commit adultery is not an attempt. State v. Butler, 8 Wash. 194, 35 P 1093, 40 AmSR 900, 25 LRA 434.

78. Del.-State V. Donovan, 28

accompanied by some overt act there can be no question as to its constituting an attempt," but in V. PARTIES

[§ 99] A. In General-1. Who Are Parties. A person is a party to an offense if he either actually commits the offense or does some act which forms a part thereof, or if he assists in the actual commission of the offense or of any act which forms part thereof, or directly or indirectly counsels or procures any person to commit the offense or to do any act forming a part thereof.80

[§ 100] 2. Classification of Parties-a. In Felonies.81 In felonies the participants in the crime are divided into two general classes, which are also subdivided, namely, (1) principals, who are divided into (a) principals in the first degree, and (b) principals in the second degree;82 and (2) accessaries, who are divided into (a) accessaries before the fact, and (b) accessaries after the fact.s A principal is

Del. 40, 90 A 220.

Ill-Cox v. Peo., 82 Ill. 191. Md-Lamb v. State, 67 Md. 524, 10 A 208 298.

50.

Mich.-McDade v. Peo., 29 Mich.

Mo.-State v. Harney, 101 Mo. 470, 14 SW 657.

Pa-Com. v. Randolph, 146 Pa. 83, 23 A 388, 28 AmSR 782; Stabler v. Com., 95 Pa. 318, 40 AmR 653; Smith v. Com., 54 Pa. 209, 93 AmD 686.

S. C.-State v. Bowers, 35 S. C. 262, 14 SE 488, 28 AmSR 847, 15 LRA 199.

Va.-Hicks v. Com., 86 Va. 223, 9 SE 1024, 19 AmSR 891.

W. Va.-State v. Baller, 26 W. Va. 90. 53 AmR 66.

Wis.-State v. Goodrich, 84 Wis. 359, 54 NW 577.

Eng. Reg. v. Williams, 1 C. & K. 589, 47 ECL 589.

See also Ex p. Floyd, 7 Cal. A. 588, 590, 95 P 175 (where the court said: "There is also a distinction between an attempt to commit a crime, and merely soliciting one to commit it. as there is between an attempt and mere preparation").

[a] In a high moral sense it may be true that solicitation is an attempt, but in the legal sense it is not until something has been, done which may be called an "overt act" that it can be said that an attempt has been made to commit a misdemeanor. Smith v. Com., 54 Pa., 209, 212, 93 AmD 686.

com

[b] There must be a physical act, as contradistinguished from a verbal declaration; that is, there must be a step taken toward the actual mission of the offense, and a mere effort by persuasion to produce the condition of mind essential to the commission of the offense is not an attempt to commit it. Cox v. Peo., 82 Ill. 191.

79. State v. Hayes, 78 Mo. 307. See also State v. Taylor, 47 Or. 455, 459, 84 P 82, 4 LRANS 417, 8 AnnCas 627 (where it appeared that accused had employed two persons to burn another's barn, had given them the materials with which to do it, had showed them how to start a slow burning fire, had paid them a compensation for their services, had furnished a horse for one of them to ride, and had started them on their way, but that they became frightened on nearing the barn and abandoned the enterprise, and where in holding accused guilty of an attempt, the court said: "He had thus done all that he was expected to do, and his felonious design and action was then just as complete as if the crime had been consummated, and the punishment of such an offender is just as essential to the safety of society. The failure to commit the crime was not due to any act of his, but to the

83

such a case there is something more than mere solicitation.

TO OFFENSES

one who either actually perpetrates the crime or who, being actually or constructively present, aids and abets its commission; 84 while an accessary is one who procures, counsels, commands, or abets the principal, and is absent when the latter commits the crime, or who, after the crime has been committed, receives, relieves, comforts, or assists the perpetrator.8 85 In some of the early cases an "accessory at the fact" is spoken of; but such person is now classed as a "principal in the second degree" or an "aider or abettor."86 The distinction between principals and accessaries before the fact in felonies is wholly a creature of judicial construction.87 The crimes of the principle and of the accessory are separate and distinct.88

Statutory felonies. It is now well settled that insufficiency of the agencies emLa.-State V. Walters, 135 La. ployed for carrying out his criminal 1070, 66 S 364. design").

80. State v. Scott, 80 Conn. 317, 68 A 258. And see cases infra § 100. 81. Principals and accessaries in particular offenses see Abortion §§ 17-20; Homicide [21 Cyc 679]; Larceny [25 Cyc 561; Rape [33 Cyc 1436]; Suicide [37 Cyc 521]; and other particular titles.

82. U. S. v. Martin, 176 Fed. 110; Williams v. State, 41 Ark. 173; Rex v. Royce, 4 Burr. 2073, 98 Reprint 81; 4 Blackstone Comm. 34; Chitty Cr. L. p 255; 1 Hale P. C. p 233, 615. See infra §§ 107, 112.

83. U. S. v. Martin, 176 Fed. 110;
State v. Cassady, 12 Kan. 550; Mitch-
ell v. Com., 33 Gratt. (74 Va.) 845.
See infra §§ 125, 133.

84. U. S.-Richardson v. U. S.,
181 Fed. 1, 104 CCA 69.
Ala.-McLeroy v. State, 120 Ala.
274, 25 S 247.

Cal.-Peo. v. Bunkers, 2 Cal. A.
197, 84 P 364, 370.

Ga.-Hately v. State, 15 Ga. 346.
Ky.-Wilcox v. Com., 10 Ky. Op. 313.
Miss.-Kittrell v. State, 89 Miss.
66, 42 S 609.

Mo.-State v. Peebles, 178 Mo. 475,
77 SW 518.

N. J.-State v. Hess, 65 N. J. L.
544, 47 A. 806.

N. C.-State v. Jarrell, 141 N. C.
722, 53 SE 127, 8 AnnCas 438.
Okl.-Moore V. State, 4 Okl. Cr.

212, 111 P 822.
Philippine.-U. S. v. Ponte, 20 Phil-
ippine 379.

S. C.-State v. Davis, 88 S. C. 229,
70 SE 811, 34 LRANS 295; State v.
Hunter, 79 S. C. 73, 75, 60 SE 240
[cit Cyc]; State v. Cannon, 49 S. C.
550, 27 SE 526.

Tex.-Gilbert v. State, (Cr.) 186
SW 324; Espinoza v. State, (Cr.) 165
SW 208; Davis v. State, 55 Tex. Cr.
495, 117 SW 159; Cordes v. State, 54
Tex. Cr. 204, 112 SW 943: Franklin
v. State, 45 Tex. Cr. 470, 76 SW 473.
See also infra §§ 107, 112.
[a] Benefit to participant. A
person who takes part, participates,
or engages in any offense is guilty
as a principal whether or not he has
any interest in, or receives any finan-
cial gain from, the commission of
such offense. Metcalf v. State, 10
Okl. Cr. 77, 133 P 1130; Buchanan v.
State, 4 Okl. Cr. 645, 112 P 32, 36
LRANS 83; Morris v. State, 4 Okl. Cr.
233. 111 P 1096.

85. U. S.-Ackley v. U. S., 200
Fed. 217, 118 CCA 403; U. S. v. Hart-
well, 26 F. Cas. No. 15,318, 3 Cliff.

221.

Ala. Griffith v. State, 90 Ala. 583, 8 S 812.

Cal.-Peo. v. Ah Ping, 27 Cal. 489. Iowa. State v. Berger, 121 Iowa 581, 96 NW 1094.

Ky.-Able v. Com., 5 Bush, 698.

Tex.-Harrison v. State, 153 SW 139. Va.-Wren v. Com., 26 Gratt. (67 Va.) 952.

Wis.-Connaughty v. State, 1 Wis. 159, 60 AmD 370.

Eng. Reg. v. Brown, 14 Cox C. C. 144; 4 Blackstone Comm. p 37; 1 Hale P. C. p 618; 2 Hawkins P. C. c 29 §§ 16, 26.

Ont.-Reg. v. Smith, 38 U. C. Q. B.

218.

Que. Reg. v. Campbell, 8 Que. Q. B. 322, 2 CanCrCas 357.

See also infra §§ 125 et seq, 133 et seq.

86. State v. Poynier, 36 La. Ann. 572, 574 (where Manning, J., said: "The distinction between principals and accessories before the fact is in most cases a distinction without a difference, and often requires nice and subtle verbal refinements to express it. In some of our States it has been abolished by statute-in others, judicial decisions have attenuated it until it is perceptible only by a close mental effort. The fact is, it is not a creature of statutory law but wholly of judicial construction, the origin of which is so vague and indeterminate that the text writers have not found out where to place it. It is supposed to have originated at a time when criminal lawyers puzzled their wits and taxed their ingenuity to invent metaphysical shades of distinction, such for instance as that between principals and accessories at the fact, which once existed, but is now exploded. The distinction between principals and accessories before the fact is fast following its kindred technical finement"). See infra §§ 112-124. [a] The distinction between a principal and an accessary is as follows: The acts of the accessary are only auxiliary, and they may be performed either before or after the actual commission of the crime, but a principal may not only perform an antecedent act in furtherance of the crime, but at the date and time of its actual commission he must be doing something in connection with and in furtherance of the common purpose, whether present where the main fact is to be accomplished or not. In other words an accessary either has completed his offense before the crime is committed or his liability

re

does not attach until after it has

been committed, while the principal acts his part in furtherance of and during

the consummation of the crime. Davis v. State, 55 Tex. Cr. 495, 117 SW 159; Bean v. State, 17 Tex. A 60; Cook v. State, 14 Tex. A. 96; State v. Prater, 52 W. Va. 132, 147, 43 SE 230 [quot McClain Cr. L. § 204]. 87. See cases supra note 86. 88.

State v. Buzzell, 58 N. H. 257,