An attempt to commit a misdemeanor is a misdemeanor (a) whether the offence was created by statute or existed at common law, (b) for when an offence is made a misdemeanor by statute it is made so for all purposes. (c) So inciting another to commit a misdemeanor is in itselfa misdemeanor. (d) In this case it was held that attempting to bargain with or procure a woman falsely to make the affidavit provided for by the Con. Stats. U. C., c. 77, s. 6, that A was the father of her illegitimate child, was an indictable offence, on the ground that if the oath were taken and proved to be false, it would have amounted to perjury under the Con. Stats. U. C., c. 2, s. 15, or, at all events, to a misdemeanor, and inciting another to commit perjury is a misdemeanor on the above principle. On an indictment for misdemeanor the jury may find the prisoner guilty of any lesser misdemeanor that is necessarily included in the offence as charged, (e) and on an indictment for felony or misdemeanor the jury may the party guilty of an attempt to commit it, which is a misdemeanor. (ƒ) Under this statute (32 & 33 Vic., c. 29, s. 49) two prisoners may be convicted of misdemeanor, though one is charged with attempting to commit a felony, and the other as aiding and abetting him in the attempt. An indictment charged H with rape, and U with aiding and abetting him in the rape, the jury having found H and U guilty of a misdemeanor, H of attempting to commit the rape, and U of aiding him in the attempt: Held that they were both properly convicted under the 14 & 15 Vic., c. 100, s. 9. (g) But upon

find

(a) Reg. v. Connolly, 26 U. C Q. B. 322. per Hagarty, J. Reg. v. Martin, 9 C. & P, 213. Rey v. Goff, 9 U. C. C P. 438.

(b) Rex. v. Butler. 6 C & P. 368 per Patterson, J. Rex. v. Roderick, 7 C. & P. 795. Parke, B. Rex v. Cartwright Russ. & Ry 107.

(c) Rex. v. Roderick supra 795, per Parke, B.

(d) Reg. v. Clement. 26 U. C. Q. B 297.

(e Rey. v. Taylor, L R 1 C. C. R 196, per Kelly, C. B.

(f) Reg. v. Goff, 9 U. C. C. P. 438. 32 & 33 Vic., c. 29, s. 49.

(g) Reg. v. Hapgood, L. R. 1 C. C. R. 221.

this clause the defendant can only be convicted of an attempt to commit the very offence with which he is charged. (a) Nor can the jury convict under it of an attempt which is made felony by statute, but only of an attempt which is a misdemeanor. (b) But on an indictment for rape the prisoner may be convicted of an attempt to commit the rape, though the attempt is felony by statute, and the indictment is in the ordinary form. (c) An attempt to commit a felony, is also a misdemeanor, (d) and an attempt to obtain money under false pretences is a misdemeanor. (e)

The act of attempting to commit a felony must be immediately and directly tending to the execution of the principal crime, and committed by the prisoner under such circumstances that he has the power of carrying his intention into execution. (f) Where, the prisoners being indicted for an attempt to commit burglary, it appeared that they had agreed to commit the offence on a certain night together with one C, but C was kept away by his father, who had discovered their design. The two prisoners were seen about twelve o'clock that night to enter a gate about fifty feet from the house; they came towards the house to a picket fence in front, in which there was a small gate, but they did not come nearer the house than twelve or thirteen feet, nor did they pass the picket gate; they then went, as was supposed, to the rear of the house and were not seen afterwards. About two o'clock some persons came to the front door and turned the knob but went off on being alarmed and were not identified:

(a) Reg. v. McPherson. Dears. & B. 197, 26 L. J. (M. C.) 134.

(b) Reg. v. Connell, 6 Cox 178.

(c) Reg. v. Webster. 9 L. C. R. 196.

(d: Reg. v. Goff. 9 U. C. C. P. 438 per Draper, C. J. Reg. v. Esmonde, 26 U. C. Q. B. 152.

(e Reg. v. Goff, supra.

f) Reg. v. McCann, 28, U. C. Q. B. 517. pcr Morrison, J. Reg. v. Taylor, 1 F. & F. 511.

Held that there was no evidence of an attempt to commit the offence, no overt act directly approximating to its execution, and that a conviction therefor could not be sustained. (a) If, however, it had been proved that they attempted to enter the house, and were either interrupted or surprised in doing so, and made their escape, and that but for such surprise or interruption they could have carried out their design of stealing certain money said to be in the house, there would have been evidence to go to the jury. (b) A conviction for an attempt to commit a felony cannot be supported unless it appears upon the evidence that the felony might have been completed if there had been no interruption. If, therefore, upon an indictment for attempting to commit a felony by putting the hand into a woman's pocket with intent to steal her property therein, it appears that she had nothing in her pockets, a convic tion cannot be sustained. (c)

The prisoner was indicted for breaking and entering a shop with intent to commit felony, which by (24 & 25 Vic., c. 96, s. 57) the corresponding English section of the 32 & 33 Vic., c. 21, s. 56, is made felony. He was seen upon the roof, where a hole was found broken in, but there was no evidence of his having entered the building. The jury were directed that if they thought he broke the roof with intent to enter the shop and steal, they might find him guilty of misdemeanor in attempting to commit that felony, and they found him guilty of the misdemeanor: Held that the conviction was right. (d)

(a) Reg. v. McCann, supra

(b) Ib. 516, per Morrison J.; see also Reg. v. Eagleton, 1 U. C. L. J. 179; Dears, C. C. 515; Rej. v, Roberts, ib. 539; Rex v. Martin, 2 Mood. C. C. 123; 9 C. & P. 213-215; Dugdale v. Reg, 1 E. & B. 435.

(c) Reg. v. Colins. L. & C. 471, 33. L. J. (M. C.) 177. 10 U. C. L. J. 308. (d) Reg. v. Bain, 8 U. C. L. J. 279; L. & C. 129; 31 L. J. (M. C.) 88.

But attempting to commit a felony is clearly distinguishable from intending to commit it, for the bare wish or desire of the mind to do an illegal act is not indictable. So long as an act rests in bare intention it is not punishable by our laws, (a) but immediately when an act is done the law judges not only of the act itself, but of the intent with which it was done, (b) and an act, though otherwise innocent, if accompanied by an unlawful and malicious intent, the intent being criminal the act becomes criminal and punishable. (c)

It has been held under the corresponding English section of the 31 Vic., c 72, s. 2, that the offence of soliciting and inciting a man to commit a felony is, where no no such felony is actually committed, a misdemeanor only, and not a felony under the Act which only applies to cases where a felony is committed as the result of the counselling and procuring therein mentioned. (d) A disregard of, or non-compliance with, a positive command in an Act of Parliament is indictable as a misdemeanor. (e) Defendants' Act of Incorporation required that the rails of their railway should be laid flush with the streets and highways, and that the railway track should conform to the grades of the same, so as to offer the least possible impediment to the ordinary traffic of the said streets and highways: Held that the omission to lay the rails flush with the street would be indictable without showing that any unnecessary impediment was offered to the traffic. (f)

The motives of a party, though unimportant in

(a) Reg. v. Mulcahy L. R. 3 E & I. App. 317. per Willes, J.

(b Reg. v. McCann, 28 U. C Q. B. 516. per Morrison, J. Reg. v. McPherson, 1 Dears & B C. C.. 197, per Cockburn, C. J. Rex. v. Higgins, 2 Ea. 5, per Le Blanc, J. Rex. v. Scofield Cald. 403.

(e) Reg. v. Bryans 12 U. C, C. P. 172. per Hagarty, J.

(d) Reg. v. Gregory. L. R. i C. C. R. 77.

(e) Reg. v. Toronto St. Ry. Co., 24, U. C. Q. B. 454.

(f) Ib.

civil cases, may be taken into account in criminal proceedings. (a) In the latter, however, the maxim, actus non facit reum nisi mens sit rea, does not hold universally. When a particular act is positively prohibited by law, it becomes thereupon ipso facto illegal to do it wilfully, and in some cases even ignorantly, and a party may be indicted for doing it without any corrupt motive. (b) Where a statute, in order to render a party criminally liable, requires the act to be done feloniously, maliciously, fraudulently, corruptly, or with any other expressed motive or intention, such motive or intention is a necessary ingredient in the crime; but where the enactment simply prohibits the doing of an act, motive or intention is immaterial so far as regards the legal liability of the party committing the forbidden act: (c) and it would seem that a party cannot exempt himself from criminal liability on the ground that bis object was lawful, or even laudable, in committing an act simply prohibited by law; (d) for the law infers that every person intends the natural consequences of his own act when that act is wrongful, injurious, and without legal justification. (e) The inference equally arises although the party has an honest or laudable object in view, and he will nevertheless be legally liable, unless the object is such as, under the circumstances, to render the act lawful. (f)

Misdemeanors differ from felonies in these particulars the crime is of an inferior degree, and the penal consequences are not so severe; secondly, all persons concerned in the commission of a misdemeanor, if guilty

(a) Phillips v. Eyre. L. R. 6, Q. B. 21, per Willes, J.

(b) Rex v. Sainsbury, 4 T. R. 457, per Ashurst, J.

(c) 4, C. L. J. N. S. 191.

(d) Reg. v. Hicklin, L. R. 3, Q. B. 330. 18 W. R. 801. 18 L. T. Reps. N. S. 395. (e) Ib.

(ƒ) Ib. 375, per Blackburn, J.; and see Reg. v. Salter, 3 Allen, 327, per Carter, C. J.