sumption, the instruction was approved, and conviction affirmed. The climatic conditions in Louisiana so affected the people that the presumption obtaining in England was held inapplicable. S. v. Jones, 39 La. Ann. 935, 3 So. 57. * * * # * (Mass. Sup. Judicial Ct., 1850.) Picking Empty Pocket. Defendant was convicted of attempt to steal property from the pocket of a person unknown, and excepted to the refusal of the court to instruct the jury that the indictment could not be maintained without proof of property in the pocket. FLETCHER, J. * It was said, in argument for the defendant, that he could not be said to have attempted to steal the property of the unknown person, if there was no property to be stolen; and that therefore the indictment should have set out the property and shown the existence and nature of it by the proof. But it will appear at once, by a simple reference to the import of the term "attempt," that this proposition cannot be maintained. To attempt is to make an effort to effect some object, to make a trial or experiment, to endeavor, to use exertion for some purpose. A man may make an attempt, an effort, a trial, to steal, by breaking open a trunk, and be disappointed in not finding the object of pursuit, and so not steal in fact. So in the present case it is not probable that the defendant had in view any particular article, or had any knowledge whether or not there was anything in the pocket of the unknown person; but he attempted to pick the pocket of whatever he might find in it, if haply he should find anything; and the attempt, with the act done of thrusting his hand into the pocket, made the offense complete. It was an experiment, and an experiment which, in the language of the statute, failed; and it is as much within the terms and meaning of the statute, if it failed by reason of there being nothing in the pocket, as if it had failed from any other cause. The following cases fully support the view taken in this case, and I am not aware of any opposing authorities: R. v. Higgins, 2 East 5; P. v. Bush, 4 Hill 133; Josslyn v. C., 6 Met. 236; Rogers v. C., 5 S. & R. 463. The indictment alleges that the defendant attempted to steal from the unknown person his personal property then in his pocket and in his possession, neither the name nor the value of the property being known to the jurors. But this allegation is wholly unnecessary and immaterial, and may be stricken out; and the indictment will still remain sufficient. Exceptions overruled. C. v. McDonald, 5 Cush. 365, B. 141. * (Conn. Sup. Ct. of Errors, 1862.) Same. It was charged and evidence given to prove that while many people were assembled at the railroad station at the funeral of Gen. Lyon, the prisoner put his hand into the pocket of an elderly lady; but no proof was offered to show that any money was in the pocket. The court refused to charge that no offense was proved, the jury returned a verdict of guilty, and he excepts. BUTLER, J. It is further claimed that there must be present ability to perpetrate the offense; that if, in this case, the pocket was empty, there could be no such ability; and that the second count of the information does not allege that there was in fact property in the pocket. There must undoubtedly be present ability to perpetrate the offense. The person must be of legal age, compos mentis, and in a situation to effect the purpose, directly or by the agency of others. But it is not true that the thing intended to be taken must be where the attempting thief supposes it to be, or that there must be in fact property where he supposes there is. It is sufficient if he supposes there is property in the pocket, trunk, or other receptacle, and attempts, by some act adapted to the purpose, to obtain it feloniously. Affirmed. S. v. Wilson, 30 Conn. 500, Kn. 80. (Eng. C. C. R., 1864.) Same. Case reserved. The prisoners were convicted of attempt to commit larceny by putting the hand of one of them into the gown pocket of a woman unknown, with intent to take and steal her property in the pocket. The witness who proved the case said he asked the woman if she lost anything, and she said, "No." Defendants being convicted, the question was whether the verdict was sustainable. Poland argued for the prisoner, that it is not indictable to put a hand into an empty pocket, and the indictment does not allege there was any property in the pocket. He relied on R. v. McPherson, 1 Dears. & B. 197, 7 Cox C. C. 281, a case much like the present, in which Bramwell, B., said: "The argument that a man putting his hand into an empty pocket might be convicted of attempting to steal, appeared to me at first plausible; but supposing a man, believing a block of wood to be a man who was his deadly enemy, struck it a blow intending to murder, could he be convicted of attempting to murder the man he took it to be?" So in R. v. Scudder, 3 C. & P. 605, it was held that there could not be a conviction for administering a drug to a woman to procure abortion, if it appeared that the woman was not with child at all. That case was before the Consolidation Act, 24 & 25 Vict., c. 96. BRAMWELL, B. You may put this case: Suppose a man takes away an umbrella from a stand with intent to steal it, believing it not to be his own, but it turns out to be his own, could he be convicted of attempting to steal? Poland: It is submitted that he could not. Metcalfe, for the prosecution. The fallacy in the argument on the other side consists in assuming that it is necessary to prove anything more than an attempt to steal. The intent to steal, it is conceded, is not sufficient; but any act done to carry out the intent, as putting a hand into the pocket, will do. CROMPTON, J., Suppose a man were to go down a lane armed with a pistol, with the intention to rob a particular person, whom he expected would pass that way, and the person does not happen to come, would that be an attempt to rob. the person? COCKBURN, C. J. We are all of opinion that this * Same. * (Mich. Sup. Ct., 1881.) MARSTON, C. J. The respondent was charged with and convicted of an attempt to commit larceny from the person, and the proof tended to show that he had put his hand into the outside cloak pocket of Emma Bellair; that there was no property of any kind in the pocket at that time, and nothing therefore was taken therefrom. It is claimed that under such circumstances he could not be convicted. We are of a contrary opinion. The charge is of an attempt to commit a crime. In burglary and many cases of attempts the intent is gathered from the taking or other act done. But this is not the only way of proving the intent; if it were, in many cases attempts to commit crime would go unpunished. We fully concur in the views expressed by the Massachusetts court in C. v. McDonald [above]. Jones, 46 Mich. 441, 9 N. W. 486. * ** P. v. (New York Ct. of App., 1890.) Same. Defendant was indicted for and convicted of attempt to commit grand larceny from the person. He obtained an order of reversal and for a new trial from the general term, on the ground that attempt cannot be perpetrated if conditions render commission impossible. The state appeals. RUGER, C. J. * The evidence given upon the trial showed that the defendant, accompanied by two associates, was observed passing around among the people gathered in a crowded market in New York, and was seen to thrust his hand into the pocket of a woman, and to withdraw it therefrom empty. Upon being approached by an officer, the defendant's companions escaped, but the defendant was arrested. The woman became lost in the crowd, and was not discovered. Upon this evidence, the defendant's counsel asked the court to direct a verdict for the defendant upon the ground that the facts proved did not support the charge in the indictment. The request was denied, and the defendant excepted. * The claim of the defendant is that the evidence did not show that the woman had any property in her pocket, which could be the subject of larceny, and that an attempt to commit that crime could not be predicated of a condition which rendered its commission impossible. We are of the opinion that the evidence was sufficient to authorize the jury to find the accused guilty of the offense charged. It was plainly inferable from it that an intent to commit larceny * * * * * * So from the person existed, and that the defendant did an act tending to effect its commission, though the effort failed. The question whether an attempt to commit a crime has been made, is determinable solely by the condition of the actor's mind, and his conduct in the attempted consummation of his design. far as the thief is concerned, the felonious design and action are then just as complete as though the crime could have been, or, in fact, had been, committed, and the punishment of such offender is just as essential to the protection of the public, as of one whose designs have been successful. It would seem to be quite absurd to hold that an attempt to steal property from a person could not be predicated of a case where that person had secretly and suddenly removed the contents of one pocket to another and thus frustrated the attempt, or had so guarded his property that it could not be detached from his person. An attempt is made when an opportunity occurs, and the intending perpetrator has done some act tending to accomplish his purpose, although he is baffled by an unexpected obstacle or condition. Many efforts have been made to reach the north pole, but none have thus far succeeded, and many have grappled with the theory of perpetual motion without success-possibly from the fact of its non-existence-but can it be said in either case that the attempt was not made? [Then his honor reviewed the decisions on like cases, and found most of them in accord with his opinion.] Order reversed and judgment affirmed. P. v. Moran, 123 N. Y. 254, 25 N. E. 412, 20 Am. St. Rep. 732n, 10 L. R. A. 109, F. 145. * * (Cal. Sup. Ct., 1892.) Shot Through Roof. Defendant was convicted of assault with intent to murder; and appealed, insisting there was no evidence to support the verdict. GAROUTTE, J. The facts of the case are novel in the extreme, and, when applied to principles of criminal law, a question arises for determination upon which counsel have cited no precedent. A policeman secretly bored a hole in the roof of appellant's building, for the purpose of determining by a view from that point of observation, whether or not he was conducting therein a gambling or lottery game. The fact came to the knowledge of appellant, and upon a certain night, believing that the policeman was upon the roof at the point of observation, he fired his pistol at the spot. He shot in no fright, and his aim was good, for the bullet passed through the roof at the point intended; but very fortunately for the officer of the law, at the moment of attack he was upon the roof at a different spot, viewing the scene of action, and thus no substantial results followed from appellant's fire. The intent to kill is quite apparent from the evidence, and the single question is presented, Do the facts stated constitute an assault? Our criminal code defines an assault to be "an unlawful attempt, coupled with a present ability, to commit a violent injury upon the person of another." It will thus be seen * * * that to constitute an assault two elements are necessary, and the absence of either is fatal to the charge. There must be an unlawful attempt, and there must be a present ability, to inflict the injury. In this case it is plain that the appellant made an attempt to kill the officer. It is equally plain that this attempt was an unlawful one. For the intent to kill was present in his mind at the time he fired the shot, and if death had been the result, under the facts as disclosed, there was no legal justification to avail him. The fact that the officer was not at the spot where the attacking party imagined he was, and where the bullet pierced the roof, renders it no less an attempt to kill. It is a well settled principle of criminal law in this country, that where the criminal result of an attempt is not accomplished simply because of an obstruction in the way of the thing to be operated upon, and these facts are unknown to the aggressor at the time, the criminal attempt is committed. He knew the officer was upon the roof, and knowing that fact he fired through the roof with the full determination of killing him. The fact that he was mistaken in judgment as to the exact spot where his intended victim was located is immaterial. That the shot did not fulfil the mission intended was not attributable to forbearance or kindness of heart upon defendant's part; neither did the officer escape by reason of the fact of his being so far distant that the deadly missile could do him no harm. He was sufficiently near to be killed from a bullet from the pistol, and his antagonist fired with the intent of killing him. Appellant's mistake as to the policeman's exact location upon the roof affords no excuse for his act, and causes the act to be no less an assault. * ** Affirmed. P. v. Lee Kong, 95 Cal. 666, 30 Pac. 800, 29 Am. St. Rep. 165, 17 L. R. A. 626, B. 142. * ULTIMATE ACTS. Classified. Ultimate acts are either criminal or justifiable and excusable acts. CRIMINAL ACTS. § 63. Classified. Crimes may be committed by doing a positive wrongful act, or by neglect of duty (in misfeasance or nonfeasance); and the force employed in doing the wrong may be direct or indirect, physical or mental. (Eng. Cent. Cr. Ct., 1867.) Starving Child. John and Mary Conde were indicted for murder of their son, Wm. Conde. Evidence was given tending to prove that deceased died of starvation, no doubt accelerated by beating. CHANNELL, B., to the jury: If |