in a public place is indictable. (y) Also it seems to be a good general ground that wherever a statute prohibits a matter of public grievance to the liberties and security of a subject, or commands a matter of public convenience, as the repairing of the common streets of a town, an offender against such statute is punishable not only at the suit of the party aggrieved, but also by way of indictment for his contempt of the statute, unless such method of proceeding do manifestly appear to be excluded by it. (z) But no injuries of a private nature are indictable, unless they in some way concern the king. (a)

Attempts to commit crimes.1. So long as an act rests in bare intention, it is not punishable: but immediately when an act is done, the law judges not only of the act done, but of the intent with which it is done; and if accompanied with an unlawful and malicious intent, though the act itself would otherwise have been innocent, the intent being criminal, the act becomes criminal and punishable. (b) Therefore an attempt to commit a felony is, in many cases, a misdemeanor. (c)

(y) R. v. Holmes, Dears. C. C. R. 207, and other cases, post, Nuisance.

(z) 2 Hawk. P. C. c. 25, s. 4, and see 1 Hawk. P. C. c. 22, s. 5. 2 Hawk. P. C. c. 25, s. 4.

(a) 2 Hawk. P. C. c. 25, s. 4. R. v. Richards, 8 T. R. 637. This distinction is stated also to have been taken in R. v. Bembridge & Powell (cited in R. v. Southerton, 6 East, 136), who were indicted for enabling persons to pass their accounts with the payoffice in such a way as to enable them to defraud the Government. It was objected, that this was only a private matter of account, and not indictable: but the Court held otherwise, as it related to the public

revenue.

(b) Per Lord Mansfield, C. J., in Schofield's case, Cald. 397. The ancient writers in treating of felonious homicide, considered the felonious intention in the same light in point of guilt as homicide itself. Voluntas reputabatur pro facto; a rule which has long been laid aside as too rigorous in the case of common persons, though retained in the statute of Treasons, 25 Ed. 3, st. 5, c. 2. But when the rule prevailed, it was necessary that the intention should be manifested by plain facts, not by bare words of any kind. Hæc voluntas non intellecta fuit de voluntate nudis verbis aut scriptis propalata,

sed mundo manifestata fuit per apertum factum. 3 Inst. 5. Fost. 193. See as to Attempts, ante, p. 63.

(c) Higgins's case, 2 East, R. 21. R. v. Kinnersley & Moore, 1 Str. 196. 1 Hawk. P. C. c. 25, s. 3. The question of intent is one which is very liable to be misunderstood. In order to constitute an attempt there must be an act done towards the commission of something prohibited by the law, and it must be an act intentionally done. There are, however, many cases in which by statute a certain act is made a felony if done with a certain intent, but if without that intent it is a misdemeanor. Thus it is a felony to wound with intent to do grievous bodily harm, and it is a misdemeanor to inflict grievous bodily harm. If a man in a sudden passion struck at another with a knife, and his hand was arrested, it would be an attempt to inflict grievous bodily harm, and yet there might be no intent to inflict grievous bodily harm, but the intent might be to prevent apprehension or otherwise. There is in short such an offence as attempting to wound with intent to do griev ous bodily harm, and another offence of attempting to inflict grievous bodily harm without that particular intent. So also by statute a felony is committed by any one who throws a stone upon a railway

AMERICAN NOTE.

1 See S. v. Swaits, 8 Ind. 524; S. v. Stanton, 37 Conn. 421; S. v. Ruhl, 8 Clarke, 447; Miller v. P., 2 Scam. 235; Sutton v. S., 9 Ohio, 133. It would seem that the law in America may be thus stated: An attempt is an intent to do a particular criminal thing with an act towards it falling short of the thing intended. A man is not guilty of an attempt where the complete doing of all that is meant would not constitute the substantive crime. See

Bishop, i. ss. 728, 747. Mr. Bishop further remarks, As a man will not in fact attempt, so neither will the law treat him as attempting, what he knows he cannot do. And since all are conclusively presumed to know the law, no one can legally intend what is legally impossible; for example, a boy too young to commit a rape cannot, in legal contemplation, be guilty of an attempt to do so.' Bishop, i. s. 753. See also May's Criminal Law, s. 18.

Thus abandoning a child without food with intent that it may die, is indictable, (d) and an attempt to commit even a misdemeanor has been decided in many cases to be itself a misdemeanor. (e) Thus if a party makes a false oath before a surrogate to procure a marriage license, that is an act done and a misdemeanor. (f) And the mere soliciting another to commit a felony is a sufficient act or attempt to constitute the misdemeanor. Thus, to solicit a servant to steal his master's goods is a misdemeanor, though it be not charged in the indictment that the servant stole the goods, nor that any other act was done except the soliciting and inciting. (g) It was held not to be necessary, in order to show that this was only a misdemeanor, to negative the commission of the felony; as none of the precedents of indictments for attempts to commit rape or robbery contain any such negative averment: but it is left to the defendant to show, if he please, that the misdemeanor was merged in the greater offence. But a person cannot be guilty of inciting another to commit a felony unless the party incited knows that the act intended is a felony. (h) And it has been held, that the completion of an act, criminal in itself, is not necessary to constitute criminality. (2) And the general rule is, that an attempt to commit a misdemeanor is a misdemeanor, whether the offence is created by statute, or was an offence at common law.'

But an act is not indictable as an attempt to commit an offence, unless it is an act directly approximating to the commission of that

line with intent to obstruct an engine, and a person might be found guilty of attempting to commit that felony. But by the same statute a misdemeanor is committed by any one who obstructs an engine, and a person might be found guilty of attempting to obstruct an engine, although he had no intent to obstruct it; but if he has attempted to do an act which would end if uninterfered with in an offence within the section, he has committed an attempt to obstruct, and his attempt involves no doubt an intentional act, but it is not a felonious 'intent to obstruct' within the meaning of the felony-section, but an implied intent to do what is forbidden by the misdemeanor section. And see 1 Hawk. P. C. c. 55. Some boys were indicted at Derby March Assizes, 1875, for throwing the coping-stone off a bridge upon a railway, with intent to obstruct an engine. They were only lark ing,' and the jury negatived the intent to obstruct. They were also indicted for obstructing, but as it happened the stone fell so as not to obstruct the line, the learned counsel for the prosecution submitted that they might be found guilty of attempting to obstruct; but the learned commissioner thought that as the jury had negatived the intent to obstruct, they could not be found guilty of the attempt. But it is submitted that if the jury thought the prisoners wilfully tried to throw the stone upon the line, they might have been found guilty of the

attempt, as the probable consequence of throwing the stone on the line would be the obstruction of the engine. See R. v. Holroyd, post. MSS. H. S.

(d) R. v. Renshaw, 2 Cox, C. C. 285.

(e) Per Grose, J., in Higgins's case, 2 East, R. 8; and see R. v. Phillips, 6 East, 464, where an endeavour to provoke another to commit the misdemeanor of sending a challenge to fight was held to be an indictable misdemeanor. And by Lawrence, J., in Higgins's case, All such acts or attempts as tend to the prejudice of the community are indictable.'

(f) R. v. Chapman, 1 Den. C. C. 432. 2 C. & K. 857.

(g) Higgins's case, 2 East, R. 5.

(h) R. v. Welham, 1 Cox, C. C. 192. Parke B., and Patteson, J. Sed quære, for how can the guilt of the inciter depend on the state of mind of the incited? The inciting and the intention of the inciter coustitute the offence. C. S. G. An attempt to incite a boy to commit a felony by sending him a letter which he did not read has been held to be an indictable misdemeanor. v. Ransford, 13 Cox, C. C. 9.

R.

(i) By Lord Mansfield, in R. v. Schofield, Cald. 400.

(j) Per Parke, B., ibid. R. v. Chapman, 1 Den. C. C. 432. 2 C. & K. 857. R. v. Butler, 6 C. & P. 368. Patteson, J., R. v. Roderick, 7 C. & P. 795. R. v. Cartwright, East. T. 1806, Russ. & Ry. 107.

offence. (k) In many cases, however, acts in furtherance of a criminal purpose may be sufficiently proximate to an offence, and may sufficiently show a criminal intent to support an indictment for a misdemeanor, although they may not be sufficiently proximate to the offence to support an indictment for an attempt to commit it; as where a prisoner procures dies for the purpose of making counterfeit foreign coin, (1) or where a person gives poison to another, and endeavours to procure that person to administer it. (m)

Upon the same principles some earlier cases appear to have proceeded. Thus, it was held indictable to attempt to bribe a cabinet minister and a member of the privy council to give the defendant an office in the colonies. (n) And an information was granted against a man for promising money to a member of a corporation, to induce him to vote for the election of a mayor; (0) an information also appears to have been exhibited against a person for attempting by bribery to influence a juryman in giving his verdict. (p) And it is laid down generally that if a party offers a bribe to a judge, meaning to corrupt him in the cause depending before him, and the judge takes it not, yet this is an offence punishable by law in the party that offers it. (q) And an attempt to suborn a person to commit perjury, upon a reference to the judges, was unanimously holden by them to be a misdemeanor. (r) All who endeavour to stifle the truth and prevent the due execution of justice are highly punishable. Public cheats which are levelled against the public justice of the kingdom are indictable at common law (s) The defendant was tried and convicted upon a count of an indictment alleging in substance: That by the terms of a contract for the purchase of a cargo of wheat, to be shipped by the sellers from a port in the Black Sea to the buyer at the port of Bristol, it was provided that any dispute arising under the contract should be referred to two arbitrators, whose award should be final and conclusive, and might upon the application of either contracting party be made a rule of the court in England; that the defendant was appointed by the sellers to take samples of the cargo upon the arrival of the ship at Bristol; that such samples were then taken and placed in bags sealed with the seals of the buyer and seller of the cargo, in accordance with the custom of merchants at the port, and for the purpose of being used as evidence before the

(k) R. v. Eagleton, Dears. C. C. 515. R. . Roberts, ibid. 539.

(1) R. v. Roberts, supra.

(m) R. v. Williams, mentioned in R. v. Eagleton, Dears. C. C. 547.1

(n) Vaughan's case, 4 Burr. 2494; and see R. v. Pollman and others, 2 Campb. 229, where a conspiracy to obtain money, by procuring from the Lords of the Trea. sury the appointment of a person to an office in the Customs, was held to be a misdemeanor at common law.

(0) Plympton's case, 2 Lord Raym.

1377.

(p) Young's case, cited in Higgins's case, 2 East, R. 14, 16.

(q) 3 Inst. 147; and see R. v. Cassano, 5 Esp. 231, an information for attempting to bribe an officer of the Customs.

(r) Anon. before Adams, B., at Shrewsbury, cited in Schofield's case, Cald. 400, and in Higgins's case, East, R. 14, 17, 22. This case is probably the same as R. v. Edwards, MS. Sum. tit. Perjury.

(s) 1 Hawk. P. C. c. 21, s. 15. East. P. C. c. 18, s. 4.

AMERICAN NOTE.

1 In America it seems that the remoteness does not affect the question. Bishop, i. of the act from that intended to be done s. 435 and ss. 764-768.

arbitrators; that the defendant afterwards, intending to deceive the arbitrators to be appointed under the contract and wrongfully to make it appear to them that the bulk of the cargo was of better quality than it really was, so as to pervert the due course of law and justice, unlawfully and designedly removed the contents of the sealed bags and altered their character, and returned to the bags a quantity of wheat in a different condition, and altered in character and value, with intent thereby to pass the same off as true and genuine samples of the bulk of the cargo; and that afterwards the defendant forwarded the samples so altered to the London Corn Trade Association, with intent that the same should be used as evidence before such arbitrators, and thereby to injure and prejudice the buyer, and to pervert the due course of law and justice. It was held that the count stated an indictable misdemeanor at common law. (t)

Where the defendant was indicted for having coining instruments in his custody, with intent to coin half guineas, shillings and sixpences, and to utter them as and for the current coin, Lord Hardwicke doubted what the offence was. But the Court of King's Bench held the offence to be a misdemeanor; Lee, C. J., saying, that all that was necessary in such a case was an act charged, and a criminal intention joined to that act.' (u) But though this doctrine be correct, it does not appear to have been applicable to the facts of the case as charged, which did not amount to a criminal act by the defendant. And this case was considered untenable in a case, in which it was holden that having counterfeit silver in possession with intent to utter it as good is no offence, there being no criminal act done. The prisoner had been found guilty of unlawfully having in possession counterfeit silver coin with intent to utter it as good: but the judges were of opinion that there must be be some act done to constitute a crime, and that the having in possession only was not an act. (v) And this distinction was acted upon in a case where some counts charged the prisoner with preserving and keeping in his possession obscene prints, with intent unlawfully to utter the same, and others charged the prisoner with obtaining and procuring obscene prints with a like intent; and it was held that the former counts were bad, for they were consistent with the possibility that the prisoner might have originally had the prints in his possession with an innocent intention, and there was no act shown to be done which could be considered as the first step in the commission of a misdemeanor; but that the latter counts were good, for the procuring of such prints was an act done in the commencement of a misdemeanor. (w) But the having a large quantity of counterfeit coin in

(t) R. v. Vreones (1891), 1 Q. B. 360. See R. v. Hall, ibid. 747.

(u) Sutton's case, Rep. temp. Hardw. 370; 2 St. 1074. In this case there were cited, in support of the prosecution, a case of a conviction of three persons for having in their custody divers picklock keys with intent to break houses, and steal goods; R. v. Lee & others, Old Bailey, 1689; and a case of an indictment for making coining instruments, and having them in possession with intent to make counterfeit money.

Brandon's case, Old Bailey, 1698; and also a case where the party was indicted for buying counterfeit shillings with an intent to utter them in payment, Cox's case, Old Bailey, 1690. See post, as to the unlawful possession of coining implements.

(v) R. v. Stewart, Mich. T. 1814, R. & R. 288. S. P. Rex v. Heath, East. T. 1810. R. & R. 184. See 24 & 25 Vict. c. 99, s. 11, as to this offence.

(w) R. v. Dugdale, 1 E. & B. 435. Dears. C. C. R. 64.

possession, under suspicious circumstances and unaccounted for, is evidence of having procured it with intent to utter it as good, which is clearly a criminal act punishable as a misdemeanor. Thus upon an indictment for procuring counterfeit shillings with intent to utter them as good, the evidence was that two parcels were found upon the prisoner containing about twenty shillings each, wrapped up in soft paper to prevent their rubbing, and there was nothing to induce a suspicion that the prisoner had coined them; and the judges were of opinion unanimously, that procuring with intent to utter was an offence, and that the having in possession unaccounted for, and without any circumstances to induce a belief that the prisoner was the maker was evidence of procuring. (x) But the effect of such evidence would be removed by circumstances sufficient to induce a suspicion that the prisoner was the maker of the coin found in his possession; and, upon the argument in the last case, Thomson, C. B., mentioned a case where he had directed an acquittal, because from certain powder found upon the prisoner, there was a presumption that he was the maker of the coin. (y) Upon an indictment for procuring counterfeit money with intent to utter it, the uttering the money, knowing it to be counterfeit, is evidence that it was procured with that intent. (2)

With respect to persons having implements for house-breaking, &c., in their possession with a felonious intent, the Legislature has made some provisions. The 5 Geo. 4, c. 83, s. 4, made persons having in their possession implements of house-breaking or weapons with intent (a) to commit any felonious act, liable to be summarily convicted; and the 24 & 25 Vict. c. 96, s. 58, makes persons armed with offensive weapons, or in possession of implements of house-breaking, guilty of a misdemeanor. And in some instances an act, accompanied with a certain intent, has been made a felony by particular statutes; as by the 24 & 25 Vict. c. 96, s. 38, the severing with intent to steal the ore of any metal, or any coal, &c., from any mine, bed, or vein thereof, is made felony punishable by two years imprisonment. And by the 24 & 25 Vict. c. 97, s. 14, the damaging certain articles in a course of manufacture, with intent to destroy them, and the entering certain places with intent to commit such offence, is made felony punishable by penal servitude for life or imprisonment, &c.

Cases indictable under statutes. Where an offence is not so at common law, but made an offence by Act of Parliament, an indictment will lie where there is a substantive prohibitory clause in such statute, though there be afterwards a particular provision and a particular remedy given. (b) Thus, an unqualified person may be indicted for acting as an attorney contrary to the 6 & 7 Vict. c. 73,

(x) R. v. Fuller & Robinson, East. T. 1816. MS. Bayley, J., R. & R. 308. See R. v. Jarvis, Dears. C. C. 552, post, Coin. In the marginal note to Parker's case, 1 Leach, 41, it is stated, that having the possession of counterfeit money with intention to pay it away as and for good money, is an indictable offence at common law. This may be criminal in some cases of such possession, as we have seen above: but, quære, if the point, as stated in the marginal note, was actually decided in Parker's case.

J.

(y) Fuller & Robinson's case, supra. (2) Brown's case, 1 Lew. 42, Holroyd, It is said the learned judge seemed to consider a procurement elsewhere, with intent to utter, a continuing procurement in the county where the uttering took place.

(a) See 32 & 33 Vict. c. 99, s. 9. (b) R. v. Wright, 1 Burr. 543. R. v. Gregory, 5 B. & Ad. 555. 2 N. & M. 478. R. v. Crossley, 10 A. & E. 132. R. v. Walker, 44 L. J. M. C. 169.