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." 65 "If the means are both absolutely and apparently inadequate, as where a man threatens another with magic, or aims at him a child's popgun, then it is plain that an attempt, in the sense of an apparent invasion of another's rights, does not exist.

*

* * When the means used are so preposterous that there is not even apparent danger, then an indictable attempt is not made out.”66

fear, but gives up the money for the purpose of afterwards prosecuting the offender. People v. Gardner, 144 N. Y. 119, 43 Am. St. Rep. 741, reversing 25 N. Y. Supp. 1072.

65 Com. v. Jacobs, 9 Allen (Mass.) 274.

661 Whart. Crim. Law (10th Ed.) § 183, citing, among other cases, Reg. v. James, 1 Car. & K.

129. Legal Impossibility to Commit Intended Crime.

By the weight of authority, if, as a matter of law, the completed act accomplished as intended would not be a crime, the attempt to commit it is not criminal, whatever may be the party's state of mind. For example, it is not a crime at common law to procure an abortion with the consent of the woman, where she is not quick with child; and therefore an attempt to procure an abortion under such circumstances is not indictable, though the party may not know that the child has not quickened.67 So, by the weight of authority, where it is held that a boy under fourteen years of age cannot commit the crime of rape, he cannot be guilty of an attempt to rape. 68 On the same principle it would seem clear that consent of the person against whom

530; Tarver v. State, 43 Ala. 354; Robinson v. State, 31 Tex. 170; Smith v. State, 32 Tex. 593.

67 State v. Cooper, 22 N. J. Law, 52, 51 Am. Dec. 248.

68 1 Whart. Crim. Law (10th Ed.) § 184; Rex v. Eldershaw, 3 Car. & P. 396; Reg. v. Phillips, 8 Car. & P. 736; State v. Sam, 1 Winst. (N. C.) 300; State v. Handy, 4 Har. (Del.) 566. Contra, Com. v. Green, 2 Pick. (Mass.) 380, Beale's Cas. 139. And see People v. Randolph, 2 Park. Cr. R. (N. Y.) 213; Williams v. State, 14 Ohio, 222.

a crime is attempted must prevent the other party from being guilty of a criminal attempt to commit the crime, if it would prevent him from being guilty of the intended crime, but this is doubtful.69

69 In People v. Gardiner, 25 N. Y. Supp. 1072, the accused had threatened to accuse a woman of a crime unless she would give him money, and she parted with the money, not under the influence of fear, but for the purpose of prosecuting him. It was held that, since he could not, under such circumstances, be guilty of the statutory crime of extortion by putting in fear, he was not guilty of a criminal attempt to commit such crime. This decision was reversed by the court of appeals in People v. Gardiner, 144 N. Y. 119, 43 Am. St. Rep. 741, and it was held that he was guilty of an attempt, for the same reason that a man who attempts to pick an empty pocket is guilty of an attempt to steal.

Consent after an attempt does not prevent the attempt from being a crime. Thus, a man who attempts to commit rape is none the less guilty because the woman afterwards consents to intercourse, so that rape is not committed. State v.

Cross, 12 Iowa, 66, 79 Am. Dec. 519; State v. Hartigan, 32 Vt. 607, 78 Am. Dec. 609; State v. Atherton, 50 Iowa, 189, 32 Am. Rep. 134.

In Rex v. Edwards, 6 Car. & P. 521, it was held, in effect, that a person who forcibly compelled another to write an order for the payment of money, intending to take the order, was not guilty

III. SOLICITATION TO COMMIT CRIME.

130. In General.-According to the better opinion, it is a misdemeanor to solicit another to commit either a felony or a misdemeanor.70 This doc. trine, however, is not recognized in all jurisdictions to the full extent.

131. Solicitation to Commit a Felony.

The decided weight of authority, both in England and in the United States, is in favor of the doctrine that it is a misdemeanor merely to solicit another to commit a crime, if the crime be a felony, though nothing further is done towards carrying out the unlawful purpose. The solicitation, without more, is regarded as a sufficient act to take the case out of the sphere of mere intent. In a leading English case an indictment was sustained for soliciting a servant to steal his master's goods. It was argued that no crime was charged because "a mere intent to commit evil is not indictable, without an act done;" but the court held that the solicitation was sufficient to ren

of an attempt to rob, as the act would not have been robbery if he had accomplished his purpose.

70 Rex v. Higgins, 2 East, 5 (referred to in Beale's Cas. 129); Walsh v. People, 65 Ill. 58, 16 Am. Rep. 569, Beale's Cas. 128; Com. v. Randolph, 146 Pa. St. 83, 28 Am. St. Rep. 782, Beale's Cas. 134; and cases cited in the notes following.

der the defendant accountable.71

This case

has repeatedly been followed both in England and in this country. Thus, in other cases it has been held an indictable offense to solicit any person to commit larceny or embezzlement,72 or murder,73 or arson,74 or sodomy,75 or adultery, where by statute adultery was made a felony, or to utter forged bank bills, made a felony by statute." There are some statements against this doctrine, but it is supported by an overwhelming weight of authority.78

76

77

71 Rex v. Higgins, 2 East, 5.

72 Reg. v. Quail, 4 Fost. & F. 1076; Reg. v. Daniell, 6 Mod. 99.

73 Reg. v. Williams, 1 Car. & K. 589, 1 Den. C. C. 39; Bacon's Case, 1 Sid. 230, 1 Lev. 146; Stabler v. Com., 95 Pa. St. 318, 40 Am. Rep. 653; Com. v. Randolph, 146 Pa. St. 83, 28 Am. St. Rep. 782, Beale's Cas. 134.

74 Com. v. Flagg, 135 Mass. 545. And see People v. Bush, 4 Hill (N. Y.) 135; State v. Bowers, 35 S. C. 262, 28 Am. St. Rep. 847; Com. v. Hutchinson, 42 W. N. C. (Pa.) 137, 6 Pa. Super. Ct. 405, 19 Pa. Co. Ct. 360.

75 Rex v. Hickman, 1 Mood. C. C. 34; Reg. v. Rowed, 3 Q. B. 180, 6 Jur. 396.

76 State v. Avery, 7 Conn. 266, 18 Am. Dec. 105. 7 See State v. Davis, Tappan (Ohio) 171. 78 Wharton, in discussing the question whether