"Among the other cases cited by counsel for the appellant are Eads v. Telegraph Co. (N. Y. App.), 38 N. E. Rep. 202; Telegraph Co. v. Williams, 86 Va. 696, 11 S. E. Rep. 106; Cable Co. v. Irvine, 49 Fed. Rep. 113, in each of which the question was as to the erection of telegraph poles upon a rural highway; and, if the distinction heretofore maintained is correct, they are not authorities in this case. In Willis v. Telegraph Co., 37 Minn. 347, 34 N. W. Rep. 337, the judgment of the trial court, holding the telephone pole upon the city street an additional servitude, was affirmed upon a division of the court, and for the lack of a majority for either side of the question. It is, therefore, of little force as an authority. The only other decision, thought to be analogous, to which we have been cited, or which our extended researches have discovered, is that of Telephone Co. v. Mackenzie, 74 Md. 36, 21 Atl. Rep. 690. In that case the complaint was held sufficient upon the general allegation that the pole planted in the footway in front of the plaintiff's warehouse obstructs and prevents the comfortable and reasonable and beneficial enjoyment and use of said premises' without permission and without payment of compensation. It was held to present a cause of action for a direct interference with the use of the warehouse, and the question of the use of a street or a highway as an additional servitude was expressly held not to be involved. It was heid, also, that the legislature had not and could not authorize the substantial impairment of such beneficial enjoyment of one's property. We do not, therefore, regard that case as in point. Nor do we regard the New York Elevated Steam Railway Cases as in point. Those cases correctly held, as we think, that the use of the street for such railway was an obstruction of the easements of access. light and air, if not an unanticipated street use."

ATTEMPTS TO COMMIT IMPOSSIBLE CRIMES.

I. The first inquiry suggested by a consideration of our subject is, what are the elements of an attempt to commit a crime, generally. For it is conceived that there should exist in this case, as in that of any substantive crime, certain criteria which, theoretically at least, will furnish an unfailing test for determining when an offense of this nature has been committed. In the very nature of things this must be so. A man charged with crime and compelled to submit to the judgment of his fellow men would oftentimes be accorded little of that universal impartiality which is supposed to accompany the administration of an advanced system of law, if his guilt or innocence were dependent upon rules whose chief

element is uncertainty. On the other hand, the peace and good order of society would be seriously imperilled by the ever present pos sibility of immunity of the individual from justice, if that justice were in its nature indeterminate. From either point of view, the result would ill accord with the tenets of a christian civilization and do small honor to a system of jurisprudence declared to have been. established in "the perfection of reason." These observations apply to all offenses by the individual against organized society; hence, it will be seen that attempts to commit crime, punishable under the law as such, are not excluded. A true definition of any crime should embody a statement of all its elements. Does there exist such a definition of an attempt? Until very recently the treatment of this subject by text-writers was exceedingly fragmentary. This was due no doubt to the fact that decided cases, while valuable and instructive as illustrations, have been found remarkably deficient in the discussion of elementary principles; being confined for the most part to the application of precedents to the case in hand,-precedents in the forma tion of which the quality of reason has quite too often been found absent. In the second edition of the American and English Eneyclopædia of Law, however, the authorities on this subject are collected and arranged with great care, and from them a definition of an attempt is deduced which is worthy of consideration. "An attempt to commit a crime is an act done in part execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and possessing, except for failure to consummate, all the elements of the substantive crime." We have here two principal elements: the criminal design or intent and the overt act. It is noteworthy that in every crime known to the law these two elements must co-exist;2 and from this we conclude that every attempt to commit a crime which the law punishes is itself a crime. In classifying crimes, the common law makes two grand divisions, based presumably upon the different degrees of danger to society likely to result from their commission, and characterized by vastly differing grades of

1 3 Am. & Eng. Ency, of Law (2d Ed. 1897), p. 250. 2 State v. Wells, 31 Conn. 210; Cox v. People, 82 Ill. 191; Cunningham v. State, 49 Miss. 685.

punishment. These are felonies and misdemeanors. It has long been well settled that an attempt to commit a crime is a misdemeanor, if punishable at all, whether the crime attempted be a misdemeanor or a felony. At first glance the reason for this seems obvious, i. e., that the resulting injury of a mere attempt can never be equal in degree to that of the crime attempted. Nevertheless it is equally plain that the injury to society likely to attend the commission of certain attempts may be far more serious than the actual consequences of another completed felony. Take, for instance, an attempt to rape or an attempt to murder and contrast therewith a larceny actually committed. To remedy this defect in the common law many statutes have been enacted declaring that certain attempts shall be punishable as felonies. Following this thought we are led to consider another distinction of perhaps greater importance, and one which has been tacitly rather than expressly recognized in the decisions, viz., that attempts to commit crimes mala in se are punishable as offenses, but that when a crime is malum prohibitum merely, an attempt to commit it is either no offense at all or not such as the law will notice and punish. great deal of confusion with respect to this distinction has arisen by reason of the dictum of an eminent judge in an old English case that, "an attempt to commit a misdemeanor is a misdemeanor whether the offense is created by statute or is an offense at common law."

A

115 By this was meant that the mere fact that a particular act was a crime only by force of a statute would not prevent it from being malum in se if it were so in fact; or, in other words, that a statute intended to remedy a palpable defect in the common law did not make an act previously wrong in itself wrong only because of the statute. And this the facts of the case clearly show. The prisoner was indicted for attempting to carnally know a child under the age of twelve years and over ten, consent to the act being given. The "age of consent" at common law being ten years there could be no attempt to rape; but by statute carnal knowledge of a girl under

33 Am. & Eng. Ency. of Law (2d Ed.), 251. Taylor v. State, 11 Lea (Tenn.), 708, 17 Cent. L. J. 27, 4 Crim. Law Mag. 1, 13.

5 Parke, B., in Rex v. Roderick, 7 Car. & P. 795. See, to the same effect: Rex v. Butler, 6 Car. & P. 368; Rex v. Cartwright, R. & R. C. C. 106.

twelve years and over ten was made a substantive crime, and, being malum in se in the proper meaning of that term, the defendant was held answerable for the attempt. The justice of this decision cannot be doubted, but the dictum quoted affords a striking example of the difficulties sometimes to be encountered in arriving at a conclusion of common sense by a process of legal reasoning. Quoting this dictum with approval, several cases in the United States deny the existence of the distinction contended for; but an examination of the facts in each case shows that the reasoning thus adopted is as elusive as in the principal case and wholly unnecessary.6 On the other hand the distinction is clearly marked, although not always recognized as such, in a number of authoritative decisions. Thus, where to take usury, to bet on a horse race, to sell spirituous liquors, to introduce liquors into Alaska,10 and to sell cotton in the seed between sunset and sunrise," were by statute made misdemeanors, attempts to commit them were held not indictable.

8

II. 1. Bearing in mind the principles already noticed, a discussion of the subject of attempts to commit impossible crimes may proceed with reference to the two elements which have been pointed out. We have seen that these elements must co-exist. If, therefore, a crime becomes impossible by reason of considerations affecting the existence of the intent it may be placed in one category, and if the non-existence of a sufficient act is the cause of impossibility its place is in another, and we have two classes.

2. It is well settled, upon great consideration, that an intent to commit a specific crime is essential to the commission of an attempt, and that therefore it must be alleged in the indictment and proved as a matter of fact. 12 But how are we to ascertain the thoughts which are conceived in the mind of any man? Clearly, by looking to their outward manifestations, and drawing therefrom the inferences which common experience teaches us are

6 Smith v. Com., 54 Pa. St. 209, 93 Am. Dec. 686; State v. Avery, 7 Conn. 266, 18 Am. Dec. 105. 7 Rex v. Upton, 2 Strange, 816.

8 Dobkins v. State, 2 Humph. (Tenn.) 424.

9 Com. v. Willard, 22 Pick. (Mass.) 476; Pulse v. State, 5 Humph. (Tenn.) 108.

10 U. S. v. Stephens, 8 Sawy. (U. S.) 116.

11 Whitesides v. State, 11 Lea (Tenn.), 474.

12 3 Am. & Eng. Ency. of Law (2d Ed.), 255, and cases cited.

loaded pistol among them and thereby wounded a passer-by, these facts were held in England not sufficient to warrant an inference of intent to kill the person injured; Jervis, C. J., saying: "I do not think that the charge contained in the indictment is proved. Doubtless at common law if the person wounded had been killed it would have been murder. But this is an offense under the statute and must be proved strictly in its very terms.''25 In Delaware and Indiana this exception has been denied.26

5. In an attempt to commit rape, there must exist an intent to use such force as will accomplish the offender's purpose without the consent of the female; and here, as in attempts to murder, the question of intent is for the jury upon all the circumstances of the

case.

posure, although he had not touched her; but the court declined to disturb the verdict, holding that no actual violence need be shown, as a matter of law, in order to evince an intent to ravish.29 The same was held where the facts were that the female awoke and found the accused in bed with her, who escaped when she called for help.30 Also in a case where the accused was discovered at two o'clock in the morning in a state of undress, stooping over the bed where a woman lay asleep. And again, where a woman was awakened by the bed clothes being pulled by the accused.32 But in the following cases the facts shown were deemed insufficient to warrant a finding of the necessary intent: mere solicitation, however earnest, unaccompanied by an offer to use force; gross liberties, not amounting to force, threats or fraud, as where the accused had entered a woman's bed-room and touched her with his hand,34 where a negro partially naked had entered a bed-room where several girls were sleeping and turned one of them over, but fled when she awoke, where a negro in a similar con

33

in truth it is their sworn duty to find,-the intent to use force from the act itself, though the girl consented. Where the sexual act has been accomplished, the case is very simple; no further proof of the intent need be shown. But in case of a mere attempt, the intent to accomplish the act is a question for the jury. And in this, as in all other cases, they must exercise their judgment as a jury of reasonable men, else a verdict of guilty should be set aside. An inflexible standard of reasonableness cannot be set up to guide the decision of every case. It rests primarily in the minds of the individual jurors and may be fairly taken to be represented in their collective action. Yet, in behalf of the accused, the court has a supervisory power. This power was invoked after a verdict of guilty of an attempt to rape where the facts were that the accused had decoyed a female child into a deserted building and was detected within a few feet of her in a state of indecent ex

25 Reg. v. Lallement, 6 Cox C. C. 204; see also Rex v. Mellhone, 1 Crawf. & Dix. C. C. 156.

26 State v. Sloanaker, Houst. Cr. Cas. (Del.) 62; Walker v. State, 8 Ind. 290.

In the United States the age of consent varies from 10 to 18 years.

28 3 Am. & Eng. Ency. of Law (2d Ed.), 259, and

cases cited.

35

ing along the road, called to her to stop, but himself stopped when within ten feet of her;36 and where the accused called a woman by her Christian name and fled when she screamed.37 In a recent Alabama case it was held that an attempt to carnally know a girl under the age of consent does not constitute an attempt to rape; that notwithstanding the provisions as to the age of consent, the female thus deemed in law incapable of consenting to the act, may nevertheless consent in fact, and if she does actually consent, then an actual intent in the mind of the accused to use force at all events must be shown by proof of sufficient manifestations, unless the child is under the age of seven years. This decision seems to rest upon a belief that the rule about the age of consent eliminates entirely the element of force in rape where the victim is a child under 29 Hays v. People, 1 Hill (N. Y.), 351. 30 Carter v. State, 35 Ga. 263.

88

31 State v. Smith, 80 Mo. 516.

32 Dibrell v. State, 3 Tex. App. 456.

33 House v. State, 9 Tex. App. 53; Thomas v. State, 16 Tex. App. 533.

34 Thompson v. State, 43 Tex. 583; Taylor v. State, 50 Ga. 79.

35 Charles v. State, 11 Ark. 389.

36 Lewis v. State, 35 Ala. 380.

37 Carroll v. State, 24 Tex. App. 366.

38 Toulet v. State, 100 Ala. 72.

that age; being therefore an exception to the general rule it should be strictly construed; that a strict construction requires that the completed crime should alone furnish a basis. for its operation; and hence that it has no application in case of a mere attempt. The falacy of this reasoning may appear when it is suggested that it is the consent of the child and not the intent of the offender to use force which is eliminated; for it may fairly be supposed that an intent to use brutal force is necessarily involved in an attempt to consummate the act upon the person of a girl of tender years, even with her consent. The jury should be allowed to draw this inference; otherwise, such an attempt is under our law no crime at all,-an impossible crime.

6. A recognized authority on criminal law says: "The peculiar offense of rape is not committed when the man obtains the woman's consent by a fraud, as by impersonating the husband. This is a technicality in rape, perhaps derivable more from ancient precedents than from the reasonings of the law; but whether so or not our courts cannot change it."39 And this assertion is supported by a number of the older authorities, which hold that an attempt under such circumstances is in effect an attempt to commit an impossible crime, the intent to use force not being shown.40 But it seems to us that such a rule of law is inexpedient, and that here again the jury should be allowed to say whether a man who thus attempts to accomplish the sexual act may not by so doing manifest an intent to use force if necessary. We are therefore inclined to assent to another and different statement of the law which is that "where such fraud is used as would justify a virtuous female in submitting to the act, the actual intent to use violence if other means fail need not [otherwise] be shown."41 This view is supported by the later, and it would seem, the more satisfactory, authorities. 42 By a parity of reason an attempt on the person of a sleeping woman may sufficiently evince an intent to use -39 1 Bishop's New Cr. Law, sec. 261.

40 Reg. v. Saunders, 8 Car. & P. 265; Reg. v. Will iams, 8 Car. & P. 286; Reg. v. Barrow, L. R. 1 C. C. 156; Reg. v. Sweeney, 8 Cox C. C. 223 (2 judges dissenting); Rex v. Jackson, R. & R. C. C. 487 (4 judges dissenting).

41 3 Am. & Eng. Ency. of Law (2d Ed.), 260.

42 Reg. v. Dee, 15 Cox C. C. 579; Reg. v. Flattery, L. R. 2 Q. B. Div. 410; State v. Murphy, 6 Ala. 765, 41 Am. Dec. 79; State v. Shepard, 7 Conn. 54; People v. w, 1 Wheeler Cr. Cas. (N. Y.) 378.

force.

Conceding that under ordinary conditions the sexual act would be impossible of completion in such a case, that fact is rather in favor of the inference of an intent to use force than against it. Some authorities take the opposing view, however, on the ground before noticed; but they constitute a very decided minority. A plainer case is presented where an attempt is made upon the person of an idiotic or insane woman. Here there would seem to be little doubt.45 Yet it has been held that a vestige of reason, mere animal instinct in fact, is sufficient to create a capacity to consent. 46

44

7. Much doubt is found to exist in the authorities as to whether physical incapacity to consummate a particular crime is such a mark of impossibility as will excuse an attempt. The following test has been suggested: If the incapacity was apparent and known to the accused, the requisite intent does not appear and there is no crime.47 This is a reasonable statement of an inference to be drawn from one conclusion, resulting in another. But as a rule is it of any value? The question of whether the incapacity was apparent and known to the accused must still be left to the jury.48 If the crime was incomplete, as an attempt must be, there is generally no means of ascertaining whether the accused was aware of his incapacity; and to require the jury as matter of law to pass upon a conjectural fact would lead to endless confusion. This difficulty has been obviated in many cases of attempted rape by applying another arbitrary and reasonless rule of law, i. e., that a boy under fourteen shall be conclusively presumed incapable of attempting to commit rape, rendering the crime as to such persons impos sible.49 This is apparently an extension of a similar rule obtaining in cases of completed rape, established in ancient times when the

43 Reg. v. Mayers, 12 Cox C. C. 311; Reg. v. Young, 14 Cox C. C. 114; Harvey v. State, 53 Ark. 425; State v. Shepard, 7 Conn. 54; Carter v. State, 35 Ga. 263; State v. Smith, 80 Mo. 516.

44 Charles v. State, 11 Ark. 410; King v. State, 22 Tex. App. 650; Com. v. Fields, 4 Leigh (Va.), 648. 45 Reg. v. Fletcher, Bell C. C. 63; State v. Atherton. 50 Iowa, 189, 32 Am. Rep. 134.

46 Reg. v. Barratt, 12 Cox C. C. 498; Reg. v. Con. nolly, 26 Up. Can. Q. B. 317.

47 Robinson's Elem. Law, sec. 472; Kunkle v. State, 32 Ind. 231.

48 Nugent v. State, 18 Ala. 521.

49 Rex v. Eldershaw, 3 Car. & P. 396; Reg. V. Philips, 8 Car. & P. 786; State v. Handy. 4 Harr. (Del.) 566.