der,84 subornation of perjury,85 and inducing a witness to absent himself to avoid giving testimony.86 § 154. Intent. Obviously, there cannot be an attempt to commit a particular crime unless there is an intention to commit that crime. A general criminal intent is sometimes sufficient to render one guilty of a crime, but it is never sufficient to render him guilty of an attempt. The specific intent is absolutely essential.87 So to constitute an attempt to murder, the specific intent to kill is necessary,88 although an Schwarzbach, 84 N. J. L. 268, 86 Atl. 423. 84 Where the defendant attempted to procure a third person to commit murder, and in furtherance of this purpose procured a gun, loaded it, and went with him to the point where the killing was to occur, and when about to hand over the gun to such person was arrested by officers who had been informed of his purpose, it was held that he could be convicted of an attempt. Stokes v. State, 92 Miss. 415, 46 So. 627, 21 L. R. A. (N. S.) 898. Placing poison on the underside of the crossbar of an empty mustache cup with intent to kill the owner thereof. Com. v. Kennedy, 170 Mass. 18, 48 N. E. 770. Compare cases in note 67, supra, this section. 85 One who attempts to bribe another to induce a third person to commit perjury is guilty of an attempt to incite such third person to commit perjury although the solicitation never reaches the latter. People v. Bloom, 149 N. Y. App. Div. 295, 133 N. Y. Supp. 708. Where the making of a false affidavit and its use in a particular way would constitute perjury, an attempt to induce a person to make such an affidavit to be so used is an attempt to induce him to commit perjury. Shipp v. State, 81 Tex. Cr. 328, 196 S. W. 840. 86 State v. Davidson, 172 Mo. App. 356, 157 S. W. 890. 87 Alabama. Simpson v. State, 59 Ala. 1, 31 Am. Rep. 1; Lewis v. State, 35 Ala. 380. Illinois. Dahlberg v. People, 225 Ill. 485, 80 N. E. 310. Kansas. In re Lloyd, 51 Kan. 501, 33 Pac. 307. Mississippi. Cunningham v. State, 49 Miss. 685. Nevada. State v. Huber, 38 Nev. 253, 148 Pac. 562; State v. Thompson, 31 Nev. 209, 101 Pac. 557. Ohio. Sharp v. State, 19 Ohio 379. Pennsylvania. Kelly v. Com., 1 Grant 484. Texas. Shipp v. State, 81 Tex. Cr. 328, 196 S. W. 840; Reagan v. State, 28 Tex. App. 227, 12 S. W. 601, 19 Am. St. Rep. 833. Virginia. Hall v. Com., 78 Va. 678. West Virginia. State v. Meadows, 18 W. Va. 658. England. Reg. v. Cruse, 8 C. & P. 541; Rex v. Davis, 1 C. & P. 306; Reg. v. Donovan, 4 Cox C. C. 399; Rex v. Boyce, 1 Moody C. C. 29. The accused cannot be convicted of an attempt to shoot a named person, who was not in fact shot, on proof that he attempted and intended to shoot some other person. State v. Meadows, 18 W. Va. 658. 88 Alabama. Simpson v. State, 59 Ala. 1, 31 Am. Rep. 1; Morgan v. State, 33 Ala. 413. California. People v. Mize, 80 Cal. 41, 22 Pac. 80. Michigan. Maher v. People, 10 Mich. 212, 81 Am. Dec. 781. intent to kill is not necessary to the completed offense.89 And the same is true of an attempt to commit any other crime, as rape,90 incest,91 larceny,92 robbery,93 abortion, or mayhem,95 or an attempt to provoke another to commit an assault.96 As in other cases where intent is material,97 it need not be proved by positive or direct evidence, but may be inferred, as a matter of fact, from the conduct of the party and the other circumstances.98 If the girl is under the age of consent, the defendant may be convicted of an attempt although the girl consents to all that he does. In re Lloyd, 51 Kan. 501, 33 Pac. 307; State v. Pickett, 11 Nev. 255, 21 Am. Rep. 754; Reg. v. Beale, L. R. 1 C. C. 10, 10 Cox C. C. 157. But even in such case there must be an intent to have sexual intercourse with her. In re Lloyd, 51 Kan. 501, 33 Pac. 307. In North Carolina it has been held that there is no distinction between "attempt" and "intent" in rape; that there is no such crime as an attempt to commit rape in that state, but that it is embraced in and covered by the offense of an assault with intent to commit rape, and punished as such, and that an indictment for the latter offense alleging an assault and an attempt" to rape is sufficient though it omits the words "with intent."' State v. Hewett, 158 N. C. 627, 74 S. E. 356. 91 State v. McGilvery, 20 Wash. 240, 55 Pac. 115. 92 State v. Thompson, 31 Nev. 209, 101 Pac. 557; Hall v. Com., 78 Va. 678. 93 State v. Hanson, 49 Mont. 361, 141 Pac. 669; Hanson v. State, 43 Ohio St. 376, 1 N. E. 136. And see § 944, infra. 94 Scott v. People, 141 Ill. 195, 30 N. E. 329; State v. Moore, 25 Iowa 128, 95 Am. Dec. 776. And see § 369, infra. 95 Dahlberg v. People, 225 Ill. 485, 80 N. E. 310; Filkins v. People, 69 N. Y. 101, 25 Am. Rep. 143; Rex v. Boyce, 1 Moody C. C. 29. 96 Heard v. State, 38 Ind. App. 511, 78 N. E. 358. 97 See § 90, supra. 98 Taylor v. State, 50 Ga. 79; Scott v. People, 141 Ill. 195, 30 N. E. 329 (intent to procure abortion, inferred from use of instruments without any other apparent reason); Heard V. State, 38 Ind. App. 511, 78 N. E. 358 (attempt to provoke an assault); State v. Grossheim, 79 Iowa 75, 44 N. W. 541 (intent to commit rape, inferable from conduct); Com. V. Hersey, 2 Allen (Mass.) 173 (intent to kill, inferable from administering poison or use of deadly weapon under such circumstances as to evince such an intent); State v. Thompson, 31 Nev. 209, 101 Pac. 557. See also as to inference of intent to kill, Jeff v. But the doctrine of an intent in law differing from the intent in fact does not apply.99 § 155. Abandonment of purpose. If a man makes up his mind. to commit a crime, and proceeds far enough to be guilty of an attempt, within the rules above stated, he does not purge himself of guilt by voluntarily abandoning his evil purpose. For example, if a man seizes a woman with intent to rape, he is none the less guilty of an attempt to rape because he repents and voluntarily desists.1 And the same is true in the case of an attempt to commit burglary or robbery, or arson, or incest, or any other crime. It is different, of course, if the evil purpose is abandoned before a sufficient act has been done to constitute an attempt. And voluntary abandonment, even after such an act has been done, may be evidence tending to negative the intent charged. § 156. Ability to commit intended crime. To constitute an attempt, there must be at least an apparent possibility of committing the intended crime, and if the means used are both actually and State, 37 Miss. 321; s. c., 39 Miss. 99 State v. Meadows, 18 W. Va. 1 Lewis v. State, 35 Ala. 380; People v. Marrs, 125 Mich. 376, 84 N. W. 284; Glover v. Com., 86 Va. 382, 10 S. E. 420. And see § 912, infra. 2 Com. v. Eagan, 190 Pa. St. 10, 42 Atl. 374. 3 Com. v. Peaslee, 177 Mass. 267, 59 N. E. 55; State v. Hayes, 78 Mo. 307; State v. Taylor, 47 Ore. 455, 84 Pac: 82, 4 L. R. A. (N. S.) 417, 8 Ann. Cas. 627. 4 State v. McGilvery, 20 Wash. 240, 5 Pinkard v. State, 30 Ga. 757. It is otherwise where the abandonment is involuntary. Reg. v. Bain, 9 Cox C. C. 98. 7 Alabama. Tarver v. State, 43 Ala. 354; State v. Clarissa, 11 Ala. 57. Georgia. Allen v. State, 28 Ga. 395, 73 Am. Dec. 760. Illinois. Dahlberg v. People, 225 Where the members of a county board were indicted for incurring an obligation in behalf of the county in excess of the legal limit, and the acts set out and proved were held to be insufficient to create any obligation, it was held that a conviction of an attempt was improper. Marley V. State, 58 N. J. L. 207, 33 Atl. 208. See also § 404, infra. apparently inadequate to accomplish it, there is no attempt to commit it. Thus, a person who should make an assault upon a dummy dressed as a woman, with intent to ravish, would not be guilty of a criminal intent to rape, for the law would not take cognizance of such an act, and the bare intent would not be punishable. The same is true of presenting a weapon under such circumstances that it is obvious that no injury can be done.10 It has been held by some courts that an attempt to commit a crime can only be made out when, if no interruption had taken place, the attempt could have been carried out successfully, and the intended. crime committed.11 But according to the weight of authority, an apparent possibility to commit the intended crime, and an apparent adaptation of the means used to that end are sufficient, 12 and the fact that extraneous conditions exist which render its actual consummation impossible does not prevent the party from being guilty of an attempt, if such conditions are not known to him.13 8 Alabama. Tarver v. State, 43 Ala. 354. Illinois. Dahlberg v. People, 225 Texas. Smith v. State, 32 Tex. 9 See People v. Gardner, 73 Hun (N. Y.) 66, 25 N. Y. Supp. 1072. 10 Tarver v. State, 43 Ala. 354. And see § 404, infra. 11 Reg. v. Collins, 9 Cox C. C. 497 (since overruled). And see Tarrant v. State, 12 Ala. App. 172, 67 So. 626; Smith v. State, 8 Ala. App. 187, 62 So. 575. Thus, it has been held that an attempt to discharge a gun or pistol at a person is not indictable, if, though unknown to the party making the attempt, it was not so loaded or primed that it could be discharged. Reg. v. Gamble, 10 Cox C. C. 545. And that a person cannot be convicted of an "attempt to poison" another if the substance administered is not poison ous, although he believes it to be so. State v. Clarissa, 11 Ala. 57. 12 Alabama. Mullen v. State, 45 Ala. 43, 6 Am. Rep. 691; Burton v. State, 8 Ala. App. 295, 62 So. 394. California. People v. Lee Kong, 95 Cal. 666, 30 Pac. 800, 17 L. R. A. 626, 29 Am. St. Rep. 165. Indiana. Hamilton v. State, 36 Ind. 280, 10 Am. Rep. 22. Kansas. In re Schurman, 40 Kan. 533, 20 Pac. 277. Massachusetts. Com. v. Jacobs, 9 Allen 274; Com. v. McDonald, 5 Cush. 365. England. Rex V. Phillips, 3 Campb. 73; Reg. v. Goodall, 2 Cox C. C. 41; Reg. v. Brown, 24 Q. B. D. 357. And see § 404, infra. 13 The attempt is complete and punishable when an act is done with intent to commit the crime which is adapted to the perpetration of it, whether the purpose fails by reason of interruption or for other extrinsic cause. State v. Mitchell, 170 Mo. 633, 71 S. W. 175, 94 Am. St. Rep. 763. Quoted with approval in Shipp v. "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." 14 Thus, it has repeatedly been held that a person who attempts to pick another's pocket is guilty of an attempt to commit larceny, though there is nothing in the pocket.15 And the same principle has been applied in prosecutions for attempts to commit larceny in other ways,16 or to commit robbery, 17 burglary,18 murder,19 or ex State, 81 Tex. Cr. 328, 196 S. W. 840. The rule that to constitute an attempt the act attempted must be a possibility applies only where it is inherently impossible to commit the crime, and not where it becomes impossible because of extraneous circumstances, such as outside interference, or miscalculation as to a supposed opportunity to commit it which fails to materialize. Stokes v. State, 92 Miss. 415, 46 So. 627, 21 L. R. A. (N. S.) 898. A person may be convicted of an attempt to obtain property by false pretenses although the intended victim is not deceived by the pretense and does not part with the property. State v. Peterson, 109 Wash. 25, 186 Pac. 264. 14 Com. v. Jacobs, 9 Allen (Mass.) 274. Quoted with approval in State v. Mitchell, 170 Mo. 633, 71 S. W. 175, 94 Am. St. Rep. 763; State v. Hayes, 78 Mo. 307. See also the cases cited in the following notes: 15 Connecticut. State v. Wilson, 30 Conn. 500. Massachusetts. Com. v. Jacobs, 9 Allen 274; Com. v. McDonald, 5 Cush. 365. Michigan. People V. Jones, 46 Mich. 441, 9 N. W. 486. New York. People v. Moran, 123 Rogers v. Com., 5 The contrary was at one time held in England. Reg. v. Collins, 9 Cox C. C. 497; Reg. v. M'Pherson, Dears. & B. C. C. 197, 7 Cox C. C. 281. But these cases have been overruled. Reg. v. Ring, 66 L. T. (N. S.) 300; Reg. v. Brown, 24 Q. B. D. 357. 16 In Clark v. State, 86 Tenn. 511, 8 S. W. 145, a person who had opened a drawer with intent to steal therefrom was held guilty of an attempt to commit larceny, though there was nothing in the drawer. 17 In Hamilton v. State, 36 Ind. 280, 10 Am. Rep. 22, a conviction of an attempt to rob was sustained, where the accused had assaulted another with intent to rob him, though the person assaulted had no money on his person. 18 In State v. Beal, 37 Ohio St. 108, 41 Am. Rep. 490, a person who had broken into a house with intent to steal therefrom was held guilty of burglary, though there was nothing in the house that could be stolen. 19 A conviction is not prevented by |