distinction when he said: "It is perfectly clear that every attempt, not every intention, but every attempt to commit a misdemeanor is a misdemeanor." To the same effect are the cases collected in Wharton's Criminal Law,1 which have been decided under the statutes that exist in several States for the punishment of attempts to commit crimes. The attempt can only be made by an actual ineffectual deed, done in pursuance of, and in furtherance of the design to commit the offense. I would have supposed that the case of Rex v. Butler,2 would have fallen within this rule, and yet it was held there that a count was not good, which charged that defendant "did attempt to assault the said Sarah Vernon by soliciting and persuading and inducing her to lie down upon a certain bed in the dwelling-house of him, the said J. B., then situate, and getting upon the body of her, the said S. V.," etc. This was soliciting and persuading with overt acts, that clearly manifested the guilty intent, and if solicitation, with such indubitable acts be not indictable, it is quite necessary to conclude that mere solicitation without any overt act is not indictable. It is easy to say that solicitation is an attempt, but a study of the cases will show that every case of attempt has included something more than mere solicitation, and the slightest reflection will persuade any observant man that a rule of law which should make mere solicitation to fornication or adultery indictable would be an impracticable rule, one that in the present usages aud manners of society would lead to great abuses and oppressions. The morality of the law can not undertake to regulate the thoughts and intents of the heart. The best it can do is to punish open acts of lewdness and repress indecent assaults. For the rest it must trust the people to the refining influences of Christian education.

It is time now to turn to the case upon the record. It is an indictment in two counts, both of which charge that defendant did "solicit, incite and endeavor to persuade" a married woman to commit fornication and adultery. These are the efficient words, and contain the substance of the charge. There are plenty of adverbs added, but they imply only legal inferences from what is charged. In the second count the offense is laid as "feloniously" done, but as adultery, even when consummate, has never been treated as a felony in Pennsylvania, it was nonsense to rank solicitation to the crime higher than the crime itself. If the conviction were sustained this word would have to be rejected as surplusage.

It is observable that no assault or overt act is charged no writing, or picture, or indecent exposure of person is alleged, nothing indeed is suggested but mere solicitation, and the manner of this is not even

hinted. It may have been by direct request, by innuendo, by argument, founded as has sometimes happened, upon scriptural texts and analogies, or it may have been by gay and frivolous anecdote or appeal. Possibly nothing was said, but only impure thoughts insinuated by looks or gestures. What evidence shall be sufficient to sustain such a charge? Nothing equivalent to an attempt is alleged, and, of course, the evidence would fall short of an attempt, and what would it consist of? We have no precedents for such a case, and as precedents are evidence of the law, the lack of them implies that the law has never undertaken to redress such an indefinite offence as is charged here. The authorities to which I have adverted yield no support to the indictment unless we confound legal distinctions and treat everything which may be considered as a solicitation of chastity an attempt upon chastity. In a high moral sense it may be true that solicitation is attempt, but in a legal sense it is not. And the law is as likely to be distorted by pressing it into extravagant reforms of the manners of men and women, as it is by too loose an administration.

The diligence of counsel has succeeded in finding but one case, that of State v. Avery,1 that goes to support the indictment. That was an information in the nature of an indictment for writing and sending to a married woman a scandalous letter, inviting her to an assignation for adulterous purposes. The court sustained the prosecution as for a libel, but added, arguendo, that if the letter were not a libel it was indictable as a solicitation to commit a felony, and for this Higgins' Case was cited and relied upon. By the Connecticut statute adultery is a felony, or was at the date of that case. That, then, in principle, was Higgins' Case over again, and is distinguishable from the solicitation here, which was not to commit a felony. On another ground it is distinguishable also, for the sending the letter was an overt act which might be considered sufficient to raise the offence to an attempt to debauch a married woman, which we agree is indictable.

Various forms of malicious mischief have been held indictable in Pennsylvania, and gross or obscene language publicly uttered in the streets has been indicted, but in all such cases, the overt act, not the guilty intent, constituted the offense.

Nothing being alleged in this case which can be thought to amount to an attempt upon the chastity of the wife of the prosecutor, the judgment is reversed.

AGNEW, J., dissented.

17 Conn. 267.

ATTEMPT-SOLICITATION TO COMMIT A CRIME NOT INDICTABLE.

Cox v. PEOPLE.

[82 I. 191.]

In the Supreme Court of Illinois, June Term, 1876.

1. A Mere Solicitation to Commit a Crime which does not tend to a breach of the peace or the corruption of the body politic is not indictable.

2. A Mere Effort by Persuasion to produce a condition of the mind essential to the commission of the crime of incest, without any step taken towards its commission, is not an indictable attempt to commit a crime.

Writ of error to the Circuit Court of St. Clair County; the Hon. WILLIAM H. SNYDER, judge, presiding.

Mr. Marshall W. Weir, for the plaintiff in error.

Mr. Charles P. Knispel, and Mr. R. A. Halbert, for the People.

PER CURIAM. The indictment contains two counts. In the first, the defendant is charged with incest; and in the second, he is charged with an assault with intent to commit incest.

The verdict of the jury is: "We the jury find the defendant guilty of an attempt to commit incest with Carolina Rider, under the first count of the indictment, and assess his punishment at imprisonment in the penitentiary for the term of two years."

The crime of incest is punishable, if it be by a father cohabiting with his daughter, by confinement in the penitentiary, for any term not exceeding twenty years; and if it be by cohabiting between other persons, within the degree of consanguinity within which marriages are declared by law to be incestuous and void, by confinement in the penitentiary for a term not exceeding two years.1

And by another section of the criminal code, "whoever attempts to commit any offence prohibited by law, and does any act towards it, but fails, or is intercepted or prevented in its execution, where no express provision is made by law for the punishment of such attempt, shall be punished, when the offence thus attempted is a felony, by imprisonment in the penitentiary not less than one nor more than five years; in all other cases by fine not exceeding $300, or by confinement in the county jail not exceeding six months." 2

It is not claimed, nor is there any express provision made by the criminal code for the punishment of an attempt to commit incest, so that the defendant's case is brought within this section, if he is liable at all. The evidence shows, simply, an unsuccessful solicitation to commit the offence, and the question, therefore, is, does a bare solicitation constitute an attempt, within the meaning of the section?

1 R. L. 1874, p. 376, secs. 156, 157.

2 R. L. 1874, p. 393, sec. 273.

Wharton, in discussing whether solicitations to commit crimes are independently indictable, in the second volume of his work on Criminal Law in section 2691, says: "They certainly are, when

their object is to provoke a breach of the public peace, as is the case with challenges to fight and seditious addresses. They are also indictable when their object is interference with public justice, as, where resistance to the execution of a judicial writ, is counseled, or perjury is advised, or the escape of a prisoner is encouraged, or the corruption of a public officer is sought. But if the offence be not consum

mated, and if it be not of such a character that its solicttations tends to a breach of the peace, or the corruption of the body politic, the question whether the solicitation is by itself the subject of penal prosecution, must be answered in the negative." "2

We are of the opinion that this is the better view of the law, although there are respectable authorities holding a different rule; and reading the section quoted in the light of it, the words: "Whoever attempts to commit any offence prohibited by law, and does any act towards it," must be construed, in cases like the present, to mean a physical act, as contradistinguished from a verbal declaration; that is, it must be a step taken towards the actual commission of the offence, and not a mere effort, by persuasion, to produce the condition of mind essential to the commission of the offence.

We are, therefore, of opinion there was error, both in giving instructions at the instance of the People, and in refusing those asked by the defendant, for which the judgment should be reversed, and the cause remanded.

Judgment reversed.

ATTEMPTS-INTENT WITHOUT ACT-RAPE.

KELLY V. COMMONWEALTH.

[1 Grant's Cas. 484.]

In the Supreme Court of Pennsylvania, 1858.

Acts are Necessary to Constitute an Attempt, and an attempt to commit a rape is an ineffectual offer by force to have carnal connection. An intent not evidenced by acts is not enough.

ERROR to the Court of Oyer and Terminer of Allegheny County. James M. Kelly, John Richards, and Daniel Denny were jointly indicted in the Oyer and Terminer of Allegheny County, at the Octo

1 7th ed.

2 See, also, Smith v. Com., 54 Pa. St. 209; Com. v. Williard, 22 Pick., 476.

ber Sessions of 1857, for the murder of Henry Weisseman, on the 7th of October, 1857. On application, the court granted a separate trial to the several prisoners. Kelly was first tried, and convicted January 16, 1858, of murder in the first degree, and afterwards sentenced to be hanged. Richards was acquitted, and Denny found guilty of manslaughter.

Kelly's counsel having carried his case up by writ of error, argument was had thereon at the next term of the Supreme Court at Harrisburg, May 7, 1858. The judgment of the court was rendered on the 15th of July following, reversing the court below, and granting the prisoner a new trial, for the reasons given in the following opinion:

The main facts of the case were these: The three prisoners met on the evening of October 7, 1857, in the borough of Lawrenceville. They drank ale together at the tavern of a Mrs. Fox. They also bought whisky at M'Crady's tavern. Near midnight they went to the house of the deceased, Henry Weisseman, a couple of miles distant, occupied by himself and his daughter, Wilhelmina. They entered the house, and the room where the deceased and his daughter slept together in one bed. On hearing them in the room, deceased jumped out of bed and asked what they wanted. They inquired for the girl. A scuffle ensued in the dark room between deceased and one of the prisoners. Wilhelmina sprang out of bed, and, seizing a bar of iron, struck the person engaged with her father. The person struck cried out, "Oh, my," and struck the girl in return. The prisoners then left the room, but soon returned and another scuffle ensued. Wilhelmina having given deceased the bar of iron to defend himself, fled for assistance. When leaving, she was caught by one of the party, but struck him with a pump iron, and escaped. She returned shortly with assistance, and found her father alone, lying on the floor, with his skull fractured, of which he died in a few hours after. One of the witnesses on the part of the Commonwealth testified that he heard Kelly say to John Richards next day, that he had struck the old man with a bar of iron, and was afraid he had killed him. The Commonwealth pressed for a conviction of murder in the first degree, charging that the killing was in an attempt to commit a rape, and also that it was a premeditated murder.

The defence was, that the prisoners visited the house for the purpose of fornication only, and that the killing, if done by Kelly, was without premeditation, or any intent to take life. It was shown that Kelly had visited the girl before, that her character was that of a prostitute, and that she was at that time pregnant, though unmarried, and had been treated for syphilis. The points raised, and other facts of any impor tance, can be gleaned from the opinion.

Howard and Snowden, for plaintiff in error.