motion, which creates a reasonable apprehension of immediate physical injury to a human being."1 In the explanation of the different parts of the definition, he says, in reference to the peril or fear: "There is no need that the party assailed be put in actual peril, if only a well founded apprehension of danger is created," for the suffering is the same in one case as in the other, and the breach of the public peace is the same. He then gives the pointing an unloaded pistol as an instance, and says: "There must be, in such cases, some power, actual or apparent, of doing bodily harm, but apparent power is sufficient." This makes an apparent force sufficient if it creates a well grounded apprehension of peril in the party assailed, and is believed to be contrary to the provisions of our code in two respects, to wit, the apparent force is made tantamount to the actual, and the well grounded apprehension of peril on the part of the assailed is made one of the elements of assault, whereas, by our code, if on the part of the assailant, the act coupled with the necessery intent to injure, as proved or presumed, is sufficient, it is immaterial whether or not fear of danger or well grounded apprehension of peril is created on the assailed, or even whether he was aware of the attempt or not. If the pistol had been loaded, and otherwise in condition to shoot when it was intentionally pointed at Duke, within a distance that it could take effect if discharged, the manifestation of anger, and the threats of McKay would have constituted extraneous and affirmative evidence of an express intention to injure, necessary and sufficient to make the assault complete. So, too, the pointing the pistol alone, under like circumstances if loaded, without the manifestation of anger and the threats, would of itself carry with it the presumption of the necessary intention to injure. Such act intentionally done by McKay would have put in imminent danger the life of Duke, who had given him no just cause to do it, and it is difficult to imagine how it could be possible to show McKay's intention in doing such an act to be innocent. But, on the other hand, the pistol being unloaded, the pointing of it was not an act, nor the commencement of an act, that could possibly have resulted in a battery by such a use of it, and, therefore, the act necessary as an ingredient in an assault was totally wanting. For the error in the charge of the court, the judgment is reversed and the cause rema 1 Vol. 2, sec. 32. Reversed and remanded. ATTEMPT TO COMMIT FELONY - BURGLARY-IMPOSSIBILITY BY ACT OF THIRD PARTY. R. v. MCPHERSON. [3 Jur. (N. s.) 522.] In the English Court of Criminal Appeal, Easter Term, 1857. Attempt to Commit Felony - Burglary-Goods to Obtain which House was Entered Previously Removed.-M. was indicted for breaking and entering a dwelling-house, and stealing certain specified goods. At the trial it was shown that, before M. broke into the house, the goods had been taken by an earlier burglar, but there were other goods there belonging to the prosecutor. The jury found the prisoner not guilty of the felony charged, but guilty of breaking and entering the dwelling-house of the prosecutor, and attempting to steal his goods therein. Held, that there was no "attempt" to steal the goods charged, and the verdict could not be sustained. The following case was reserved by the Recorder of Manchester: "Andrew McPherson was tried before me at the Manchester City Sessions on the 28th of February, 1857, on an indictment for breaking and entering, on the 19th of February, 1857, the dwelling-house of Mark Fowler, at Manchester, and stealing therein eight silver spoons and other spoons, one dress, one umbrella, two waistcoats, two brooches, and one pair of stays, his property, of the value of £10. The prisoner pleaded not guilty. At the latter end of January, the prosecutor went to spend some time in the country. The house in Manchester was locked up and left without any person in it. His wife came over to Manchester generally once a week to see that all was safe, and the last time she was there, before the 19th of February, was on Wednesday, the 11th. The house was then all right, and all the articles mentioned in the indictment safe, and in the places where she had left them. On the 19th of February, a little after five o'clock in the evening, the prisoner and another man with him were standing at the front door of the prosecutor's house. The prisoner was next to the door, which he unlocked, opened, and went into the house, and pushed the door to behind him. The witness who saw this went directly to a Mr. Lord, who lived next door but one to the prosecutor, and he went instantly to the prosecutor's house. The door was not fastened. He pushed it open and went in, and saw the prisoner coming down stairs, and called out to him, 'Hallo! what are you doing there?' On his calling out, the other man, who had entered with the prisoner, came out of the kitchen, rushed forcibly past the witness in the lobby, got out at the front door and escaped. The prisoner ran down the stairs, and made for the back door. The witness followed, and caught hold of his coat-lap, just as he got out of the door; the prisoner's coat-lap slipped through his hand, but he followed, and the prisoner fell about eighty yards from the house, and the witness secured him. Upon the prisoner nothing whatever was found except a skeleton key, with which he had unlocked the prosecutor's door. The man who came out of the kitchen had nothing in his hand, and nothing had been taken out of the kitchen. On examining the house after the prisoner was taken, the rooms upstairs were all in confusion; things were very much upset, drawers broken open, and to such an extent, both there, and in the parlor down stairs, as to make it quite impossible that all this could have been done by the prisoner and his companion between the time that they entered the house and the time when they were disturbed by Lord, which could not have been more than from two to three minutes. All the articles mentioned in the indictment were missing, and all of them, with the exception of the umbrella, which was taken from the parlor, had been taken from different rooms upstairs; and the jury were of opinion that all the articles mentioned in the indictment had been stolen from the house by some person or persons, whom they could not say, before the time when the prisoner so broke and entered it as aforesaid. There were other goods and chattels of the prosecutor still remaining in the house, which the prisoner might have taken. The jury, by their verdict, found that the prisoner was not guilty of the felony charged, but that he was guilty of breaking and entering the dwelling-house of the prosecutor, and attempting to steal his goods therein. The question for the opinion of the court is, whether this verdict can be supported on this indictment, none of the articles named in the indictment having been in the prosecutor's house at the time it was so broken and entered by the prisoner. Sentence is deferred. The prisoner remains in gaol." No counsel appeared for the prisoner. Taylor, for the prosecution. The question is, whether, under the ninth section of the 14th and 15th Victoria,1 the prisoner can be convicted of attempting to commit the particular felony charged in the indictment. The jury have found that he was guilty of breaking and entering the dwelling-house of the prosecutor, and attempting to steal his goods therein. [COLERIDGE, J. You must not confound" attempt" with "intention." COCKBURN, C. J. If you charge a man with stealing or attempting to steal certain specified articles, you can not convict him of stealing or attempting to steal other goods.] Suppose a man was indicted for stealing a £5 note from the person of another, and it turns out that there is nothing in that other's pocket, could he not be convicted of attempting to steal from the person? [COCKBURN, C. J. There is a difference between an attempt and an intention. be no attempt asportare if there is nothing to carry away. There can 1 ch. 100. intends to commit murder and goes to the place where he believes his intended victim to be, with the intention of killing him, but does not find him, he can make no attempt; he merely attempts to carry an intention into effect.] An attempt to commit a felony ejusdem generis with that charged in the indictment is within the statute. Here there was a breaking and entering, and attempting to commit a larceny. COCKBURN, C. J. I am of opinion that this conviction can not be sustained. The prisoner was indicted for breaking and entering a dwelling-house, and stealing therein certain specified chattels; and the jury have found that although the prisoner broke and entered with the intention of stealing, yet before he did so somebody else had been and taken the articles named in the indictment. Now, by a recent statute, it is provided that a person may be convicted of an attempt if the proof falls short of the complete offence. The word "attempt" has a very distinct meaning from "intent." An attempt is that which, if it had succeeded, would be the offence in question. In this case such an attempt never could have resulted in the actual completion of the offence, because the jury find that the articles specified in the indictment had been previously removed. The prisoner might have been convicted of an attempt to commit the offence charged in the indictment if the specified articles had been in the house; but as they were not there, although he broke in with the intent, he could not be convicted of the attempt to steal them. The other members of the court concurred. Conviction quashed. ATTEMPT - LARCENY-TO BE INDICTABLE MUST HAVE ENDED IF UNINTERRUPTED IN COMMISSION OF ACT. REG. v. COLLINS. [9 Cox, 478; 2 B. & H. Lead. Cr. Cas. 478.] In the English Court for Crown Cases Reserved, 1864. 1. To Constitute an Attempt, there must be such a beginning as, if uninterrupted, would end in the completion of the act. 2. Attempting to Steal-Nothing being in Pocket.-C. was indicted for attempting to commit a felony by putting his hand into A.'s pocket with intent to steal the property there. The evidence was that he had put his hand in A.'s pocket, but there was no proof that there was anything in the pocket. Held, that the prisoner could not be con. victed of the attempt charged. The following case was reserved by the Deputy Assistant Judge in the Middlesex Sessions: The prisoners were tried before me at the Middlesex Sessions on an indictment which stated that they unlawfully did attempt to commit a certain felony; that is to say, they did there put and place one of the hands of each of them into the gown pocket of a certain woman, whose name is to the jurors unknown, with intent, the property of the said woman in the said gown pocket then being, from the person of the said woman to steal, etc. The evidence showed clearly that one of the prisoners put his hand into the gown pocket of a lady, and that the others were all concerned in the transaction. The witness who proved the case said, on cross-examination, that he asked the lady if she had lost anything, and she said, "No." For the defence it was contended that to put a hand into an empty pocket was not an attempt to commit a felony, and that, as it was not proved affirmatively that there was any property in the pocket at the time, it must be taken that there was not; and, as larceny was the stealing of some chattel, if there was not any chattel to be stolen, putting the hand in the pocket could not be considered as a step toward the completion of the offence. I declined to stop the case upon this objection; but as such cases are of frequent occurrence I thought it right that the point should be determined by the authority of the Court of Criminal Appeal. The jury found all the prisoners guilty; and the question upon which the opinion of your lordships is respectfully requested is whether under the circumstances the verdict is sustainable in point of law. The prisoners are in custody awaiting sentence. This case was argued on the 4th of June, 1864, before COCKBURN, C. J., WILLIAMS, J., Martin, B., CROMPTON, J., and BRAMWELL, B. Poland, for the prisoners. There is no doubt that the prisoners would be punishable under the Vagrant Acts as suspected persons, frequenting a street with intent to commit felony; but the offence laid in the indictment is not made out; for there was no property in the lady's pocket. MARTIN, B. It never was proved that there was no property there. CROMPTON, J. It is important to notice how the indictment was framed. The prisoner's are charged with putting their hands into the pocket" with intent the property of the said woman, in the said gown pocket then being, from the person of the said woman to steal." Poland. In Regina v. McPherson,1 the prisoner was indicted for breaking and entering a dwelling-house and stealing therein certain goods specified in the indictment, the property of the prosecutor. At the time of the breaking and entering, the goods specified were not in the house, but there were other goods there the property of the prosecutor. The jury acquitted the prisoner of the felony charged, but found him guilty of breaking and entering the dwelling-house of the prosecutor, 1 Dears. & B. C. C. 197. |