to support the child, but that the prisoner unlawfully neglected to support it, and unlawfully abandoned it without necessary food for a long space of time, whereby the child was greatly injured and weakened. The prisoner was the wife of a seaman, and received a portion of his pay, and was able to work and get her living if she chose; she left the child without food from Monday evening till Thursday morning, and but for the attention of a poor neighbor, the child must have suffered most severely, and might probably have died for want of food, and though it did suffer in some degree from want of food, it was not to any serious extent; and it was held that the conduct of the prisoner in absenting herself, irrespective of any actual injury to the child, was not a misdemeanor at common law, and therefore it was necessary to prove the averment that the child was greatly injured and weakened; and that the evidence that the child had suffered to some but not to any serious extent was not sufficient; as it did not show any injury to the health. (a)

It has been laid down that it is the bounden duty of all persons having children of tender age, when they themselves cannot support them, to endeavor to obtain the means of getting them support; and if they wilfully abstain for several days from going to the union where they have by law a right to support, they are criminally responsible for the consequences (b)

An indictment alleged that the prisoner was a single woman and the mother of a child of very tender age and unable to provide for itself, and that it was the duty of the prisoner to provide food for the child, she "being able and having the means to perform her said duty," and that she unlawfully neglected to provide sufficient *food for the child, whereby its life was endangered. There was no evidence *82] that the prisoner actually had the means of supporting the child; but it was

proved that she could have applied to the relieving officer of the union, and, had she done so, she would have been entitled to and would have received relief for herself and the child adequate to their due support and maintenance, and that she had not made any such application; and it was held that there was no evidence that the prisoner had the means of maintaining the child, and therefore that allegation in the indictment was not proved. (c)

But it is not an indictable offence for a brother to neglect to maintain another brother, even if he be an idiot, helpless, and an inmate of his house. (d)

Where a count charged that B. S. was the illegitimate son of the prisoner, and that B. S. for a long space of time was of unsound intellect and incapable of taking care of himself, and during all that time had resided with the prisoner, who had sufficient means for the maintenance of herself and B. S.; whereupon it became the duty of the prisoner to take due and proper care of B. S., nevertheless the prisoner did not nor would take due and proper care of B. S., but on the contrary thereof during that time maliciously and unlawfully kept and confined B. S. in a dark cold and unwholesome room, and neglected to provide B. S. with proper clothing, and suffered the body of B. S. to be foul, &c., and divers large quantities of filth to collect in the said room and to cause noxious and unwholesome smells, and kept B. S. without sufficient and proper air, warmth, and exercise necessary for the health of B. S. The Court of Queen's Bench arrested the judgment, observing that "there was no averment that the lunatic was under the control of the prisoner, nor any alleged duty in her to take care of him shown. Again, even if such duty had been shown, acts of commission and omission were charged very likely to produce injury, but it was not alleged that injury was actually produced; and it is by no means a necessary consequence of such acts, nor was it alleged to have been the actual consequence of them, nor even to have continued so long that injury must, or probably would result. There was therefore nothing at most beyond a probable

(a) Reg. v. Phillpot, Dears. C. C. R. 179. See Reg. v. Cooper, 1 Den. C. C. 459, post; and Reg. v. Hogan, 2 Den. C. C. 277, post; and see now the 24 & 25 Vict. c. 100, s. 27, post. (b) Per Erle, J. and Martin B.; Reg. v. Mabbet, 5 Cox C. C. 339, post, Murder. (c) Reg. v. Chandler, Dears. C. C. R. 453.

(d) Rex v. Smith, 2 C. & P. 449 (12 E. C. L. R.), Burrough, J. See Reg. v. Marriott, 8 C. & P. 425 (34 E. C. L. R.), Patteson, J., post, Murder. A case of murder by confining an aged female, and not providing her with sufficient sustenance.

conjecture that the patient's suffering was at all connected with his mother's misconduct." (e)

So where a count charged that the prisoner intending to injure B. S.. being a person of unsound intellect and incapable of taking care of himself, whilst B. S. was under the care, custody and control of the prisoner, maliciously and unlawfully kept, confined and imprisoned B. S., &c.; the Court of Queen's Bench arrested the judgment for want of a positive averment that B. S. was under the care and control of the prisoner at the time she committed the acts alleged in the indictment. They were all said to have been done whilst the unfortunate lunatic was under her care and control; but there was no averment that he ever was so."(ƒ)

*The 16 & 17 Vict. c. 96, s. 9, enacts that "if any superintendent, officer, [*83 nurse, attendant, servant or other person employed in any registered hospital or licensed house, or any person having the care or charge of any single patient, or any attendant of any single patient, in any way abuse or ill-treat or wilfully neglect any patient in such hospital, or house, or such single patient, or if any person detaining or taking or having the care or charge, or concerned or taking part in the custody, care, or treatment of any lunatic or person alleged to be a lunatic, in any way abuse or ill-treat or wilfully neglect such lunatic or alleged lunatic, he shall be guilty of a misdemeanor, and shall be subject to indictment for every such offence or to forfeit for every such offence, on a summary conviction thereof before two justices, any sum not exceeding twenty pounds."

A person who has voluntarily taken upon himself the care of a lunatic brother in his own private house is a person having the care and charge" of a lunatic within the 16 & 17 Vict. c. 96, s. 9, and is indictable for ill-treating him.(f) The Criminal Lunatic Asylum Act, 23 & 24 Vict. c. 75, s. 13, enacts that " any superintendent, officer, nurse, attendant, servant, or other person employed in any asylum for criminal lunatics, who strikes, wounds, ill-treats, or wilfully neglects any person confined therein, shall be guilty of a misdemeanor, and shall be subject to indictment for every such offence, and, on conviction under the indictment, to fine or imprisonment, with or without hard labor, or to both fine and imprisonment at the discretion of the court, or to forfeit for every such offence, on summary conviction thereof before two justices, any sum not exceeding twenty pounds nor less than two pounds."

On an indictment under this clause it appeared that the prisoner and his wife were living together, and that she was a lunatic, and that he knew her to be so, and that during a considerable time he abused, ill-treated and neglected her, and it was held that the prisoner was not "a person having the care or charge" of a lunatic within this clause, which was not intended to apply to persons having a custody of a purely domestic character.(g)

:

So long as an act rests in bare intention, it is not punishable but immediately when an act is done, the law judges not only of the act done, but of the intent with which it is done; and if acccompanied with an unlawful and malicious intent, though the act itself would otherwise have been innocent, the intent being criminal, the act becomes criminal and punishable.(h)1 Therefore an attempt to

(e) Reg. v. Pelham, 8 Q. B. 959 (55 E. C. L. R.).

(f) Reg. v. Pelham, supra. In Urmston v. Newcoman, 4 A. & E. 899 (31 E. C. L. R.), in answer to a remark by counsel, that, "by the common law if a child perish for want of proper care, it is murder in the party neglecting it," Lord Denman, C. J., said "if the person has the actual custody," and Patteson, J., added "or the child be part of his family." And as a person incapable of taking care of himself through imbecility of mind, is in contemplation of law in the same situation as an infant (Rex v. Much Cowarne, 2 B. & Ad. 861), it should seem that if a person, who is the parent, or has the actual custody of a lunatic, neglects to provide for such lunatic, though more than twenty-one years of age, whereby his health is injured, such person would be indictable in the same manner as if the lunatic were a child of such tender years as to be unable to provide for and take care of itself. See Rex v. Friend, supra. C. S. G.

(f) Reg. v. Porter, L. & C. 394.

(g) Reg. v. Rundle, Dears. C. C. 482.

(h) Per Lord Mansfield, C. J., in Schofield's case, Cald. 397. The ancient writers, in

1 A party is liable for a wrongful act, where there exists a criminal intent, although the

commit a felony is, in many cases, a misdemeanor.(i) Thus abandoning a child without food with intent that it may die, is indictable,(k) and an attempt to commit even a misdemeanor has been decided in many cases to be itself a misde*84] meanor.(1) Thus *if a party makes a false oath before a surrogate to procure a marriage license, that is an act done and a misdemeanor. (m) And the mere soliciting another to commit a felony is a sufficient act or attempt to constitute the misdemeanor. Thus, to solicit a servant to steal his master's goods, is a misdemeanor, though it be not charged in the indictment that the servant stole the goods, nor that any other act was done except the soliciting and inciting.(n) It was held not to be necessary, in order to show that this was only a misdemeanor to negative the commission of the felony; as none of the precedents of indictments for attempts to commit rape or robbery contain any such negative averment: but it is left to the defendant to show, if he please, that the misdemeanor was merged in the greater offence. But a person cannot be guilty of inciting another to commit a felony unless the party incited knows that the act intended is a felony.(0) And it has been held, that the completion of an act, criminal in itself, is not necessary to constitute criminality.(p) An attempt to commit a statutable misdemeanor, is as much indictable as an attempt to commit a common law misdemeanor, (q) for when an offence is made a misdemeanor by statute, it is made so for all purposes.(r) And the general rule is, that "an attempt to commit a misdemeanor is a misdemeanor, whether the offence is created by statute, or was an offence at common law."(s)

treating of felonious homicide, considered the felonious intention in the same light in point of guilt as homicide itself. Voluntas reputabatur pro facto; a rule which has long been laid aside as too rigorous in the case of common persons, though retained in the statute of Treasons, 25 Ed. 3, st. 5, c. 2. But when the rule prevailed, it was necessary that the intention should be manifested by plain facts, not by bare words of any kind. Hæc voluntas non intellecta fuit de voluntate nudis verbis aut scriptis propalata, sed mundo manifesta fuit per apertum factum: 3 Inst. 5; Fost. 193.

(i) Higgins's case, 2 East R. 21; Rex v. Kinnersley & Moore, 1 Str. 196. But in 1 Hawk. P. C. c. 25, s. 3, is the following passage: "The bare intention to commit a felony is so very criminal, that at the common law it was punishable as felony where it missed its effect through some accident, no way lessening the guilt of the offender. But it seems agreed at this day, that felony shall not be imputed to a bare intention to commit it; yet it is certain that the party may be very severely fined for such intention." Probably the latter part of this passage was intended to relate to an intention manifested by some act. And see 1 Hawk. P. C. c. 55.

(k) Reg. v. Renshaw, 2 Cox C. C. 285.

(7) Per Grose, J., in Higgins's case, 2 East R. 8; and see Rex v. Phillips, 6 East 464, where an endeavor to provoke another to commit the misdemeanor of sending a challenge to fight, was held to be an indictable misdemeanor. And by Lawrence, J., in Higgins's case, "all such acts or attempts as tend to the prejudice of the community are indictable." (m) Reg. v. Chapman, 1 Den. C. C. 432; 2 C. & K. 857.

(n) Higgins's case, 2 East R. 5, in which see many cases cited, where attempts to commit felonies and misdemeanors have been considered as misdemeanors.

(0) Reg. v. Welham, 1 Cox C. C. 192, Parke, B. and Patteson, J. Sed quære, for how can the guilt of the inciter depend on the state of mind of the incited? The inciting and the intention of the inciter constitute the offence. C. S. G.

(p) By Lord Mansfield, in Rex v. Schofield, Cald. 400.

(q) Rex v. Butler, 6 C. & P. 368 (25 E. C. L. R.), Patteson, J.; Rex v. Roderick, 7 C. & P. 795 (32 E. C. L. R.), Parke, B.; Le Blanc, J., in Rex v. Cartwright, East. T. 1806, Russ. & Ry. 107; but it seems the judges did not go into the point, as they decided that the paper by the production of which the defendant had attempted to obtain money at a banker's, and which was stated to be an order, was really no order: MS. Bayley, J.

(r) Parke, B., Rex v. Roderick, supra.

(s) Per Parke, B., Ibid. ; Reg. v. Chapman, 1 Den. C. C. 432; 2 C. & K. 857 (61 E. C. L. R.).

When a person

act done is not that which was intended: State v. Ruhl, 8 Clarke 447. is knowingly engaged in a criminal act, and commits a greater offence than the one intended, proof of an intent to commit the greater offence is not essential to a conviction for that offence; and this rule applies not merely to crimes which are mala in see, but to those which are mala prohibita: State v. Stanton, 37 Conn. 421. When the declaration and the act done are inconsistent, the intention is to be gathered from the act: State v. Shelledy, 8 Clarke 477. When the present ability to commit a felonious intent is wanting, he offence is not complete: State v. Swaits, 8 Ind. 524.

But an act is not indictable as an attempt to commit an offence, unless it is an act directly approximating to the commission of that offence.(t) In many cases, however, acts in furtherance of a criminal purpose may be sufficiently proximate to an offence, and may sufficiently show a criminal intent to support an indictment for a misdemeanor, although they may not be sufficiently proximate to the offence to support an indictment for an attempt to commit it; as where a prisoner procures dies for the purpose of making counterfeit foreign coin, (u) or where a person gives poison to another, and endeavors to procure that person to administer it.(v)

The prisoner was indicted for attempting to commit a certain felony, that is to say, he did put one of his hands into the pocket of a certain woman whose name was unknown, with intent the property of the said woman in the said pocket then being to steal, &c. It was proved that the prisoner put his hand into the pocket of a lady, who said that she had lost nothing, but she did not appear as a witness. It was contended that to put a hand into an empty pocket was not an attempt to commit a felony; and, on a case reserved, Cockburn, C. J., after argument. said, "We are of opinion that this conviction cannot be supported, and in so holding it is necessary to observe that, from the case submitted to us, the question of whether there was anything in the pocket of the woman which might have been the subject of larceny, if the prisoner had not been interrupted, does not appear to have been left to the jury. The question we are asked seems to be whether an attempt at larceny can be committed by a person putting his hand into another's pocket for the purpose of committing a larceny, there being at the time nothing in the pocket. Now, we are far from saying that if the question, whether there was anything in the pocket, had been laid before the jury, there was not evidence upon which they might have found in the affirmative; but that question not having been put, we are of opinion that, assuming the fact to be that there was nothing in the pocket of the woman, the offence could not be committed. The question might have been submitted to the jury, and they might have found that there was something in the woman's pocket, but, that not having been done, the conviction cannot be sustained."(vv) During the argument Crompton, J., said, "It is important to notice how the indictment is framed. The prisoners are charged with putting their hands into the pocket with intent the property of the said woman in the said gown pocket then being from the person of the said woman to steal.' As the putting a hand into a pocket with intent to steal is clearly an act accompanied by a criminal intent, though there be nothing in the pocket, it is a common law misdemeanor, and a count should in cases of this kind be framed to meet this view of the case."

Upon the same principles some earlier cases appear to have proceeded. Thus, it was held indictable to attempt to bribe a cabinet minister and a member of the privy council to give the defendant an office in the colonies.(w) And an information was granted against a man for promising money to a member of a cor[*85 poration, to induce him to vote for the election of a mayor;(x) an information also appears to have been exhibited against a person for attempting by bribery to influence a juryman in giving his verdict.(y) And it is laid down generally, that if a party offers a bribe to a judge, meaning to corrupt him in the cause depending before him, and the judge takes it not, yet this is an offence punishable by law in the party that offers it.(z) And an attempt to suborn a person to com

(t) Reg. v. Eagleton, Dears. C. C. 515; Reg. v. Roberts, Ibid. 539.

(u) Reg. v. Roberts, supra.

(v) Reg. v. Williams mentioned in Reg. v. Eagleton, Dears. C. C. 547.

(ev) Reg. v. Collins, L. & C 471.

() Vaughan's case, 4 Burr. 2494; and see Rex v. Pollman and others, 2 Campb. 229, where a conspiracy to obtain money, by procuring from the Lords of the Treasury the appointment of a person to an office in the Customs, was held to be a misdemeanor at common law.

(z) Plympton's case, 2 Lord Raym. 1377.

(y) Young's case, cited in Higgins's case, 2 East R. 14, 16.

(z) 3 Inst. 147; and see Rex v. Cassano, 5 Esp. 231, an information for attempting to bribe an officer of the Customs.

mit perjury, upon a reference to the judges, was unanimously holden by them to be a misdemeanor.(a)

Where the defendant was indicted for having coining instruments in his custody, with intent to coin half guineas, shillings, and sixpences, and to utter them as and for the current coin, Lord Hardwicke doubted what the offence was. But the Court of King's Bench held the offence to be a misdemeanor; Lee, C. J., saying, that "all that was necessary in such a case was an act charged, and a criminal intention joined to that act."(b) But though this doctrine be correct, it does not appear to have been applicable to the facts of the case as charged, which did not amount to a criminal act by the defendant. And this case was considered untenable in a case, in which it was holden that having counterfeit silver in possession with intent to utter it as good is no offence, there being no criminal act done. The prisoner had been found guilty of unlawfully having in his possession counterfeit silver coin with intent to utter it as good: but the judges were of opinion that there must be some act done to constitute a crime, and that the having in possession only was not an act.(c) And this distinction was acted upon in a case where some counts charged the prisoner with preserving and keeping in his possession obscene prints, with intent unlawfully to utter the same, and others charged the prisoner with obtaining and procuring obscene prints with a like intent; and it was held that the former counts were bad, for they were consistent with the possibility that the prisoner might have originally had the prints in his possession with an innocent intention, and there was no act shown to be done which could be considered as the first step in the commission of a misdemeanor; but that the latter *86] counts were good, for the procuring of such prints was an act done *in the commencement of a misdemeanor.(d) But the having a large quantity of counterfeit coin in possession, under suspicious circumstances and unaccounted for, is evidence of having procured it with intent to utter it as good, which is clearly a criminal act punishable as a misdemeanor. Thus upon an indictment for procuring counterfeit shillings with intent to utter them as good, the evidence was that two parcels were found upon the prisoner, containing about twenty shillings each, wrapped up in soft paper, to prevent their rubbing, and there was nothing to induce a suspicion that the prisoner had coined them; and the judges were of opinion unanimously, that procuring with an intent to utter was an offence, and that the having in possession unaccounted for, and without any circumstances to induce a belief that the prisoner was the maker, was evidence of procuring.(e) But the effect of such evidence would be removed by circumstances sufficient to induce a suspicion that the prisoner was the maker of the coin found in his possession; and, upon the argument in the last case, Thomson, C. B., mentioned a case where he had directed an acquittal, because, from certain powder found upon the

(a) Anon., before Adams, B., at Shrewsbury, cited in Schofield's case, Cald. 400, and in Higgins's case, 2 East R. 14, 17, 22. This case is probably the same as Rex v. Edwards, MS. Sum. tit. Perjury.

(b) Sutton's case, Rep. temp. Hardw. 370; 2 Str. 1074. In this case there were cited, in support of the prosecution, a case of a conviction of three persons for having in their custody divers picklock keys with intent to break houses, and steal goods: Rex v. Lee and others, Old Bailey, 1689; and a case of an indictment for making coining instruments, and having them in possession with intent to make counterfeit money: Brandon's case, Old Bailey, 1698; and also a case where the party was indicted for buying counterfeit shillings with an intent to utter them in payment: Cox's case, Old Bailey, 1690. See post, as to the unlawful possession of coining implements.

(c) Rex v. Stewart, Mich. T. 1814, R. & R. 288; s. p. Rex v. Heath, East. T. 1810; R. & R. 184. See 24 & 25 Vict. c. 99, s. 11, as to this offence.

(d) Reg. v. Dugdale, 1 E. & B. 435 (72 E. C. L. R.); Dears. C. C. R. 64.

(e) Rex v. Fuller & Robinson, East. T. 1816, MS. Bayley, J., R. & R. 308. See Reg. v. Jarvis, Dears. C. C. 552, post, Coin. In the marginal note to Parker's case, 1 Leach 41, it is stated, that having the possession of counterfeit money with intention to pay it away as and for good money, is an indictable offence at common law. This may be criminal in some cases of such possession as we have seen above; but, quære, if the point, as stated in the marginal note, was actually decided in Parker's case.

1 Miller v. People, 2 Scamm. 235; Sutton v. State, 9 Ohio 133.