SOME RECENT DECISIONS CONCERNING ATTEMPT' AND INTENT.'

TH

HERE is an excellent story told of a member of a learned Society, presided over by an eminent person of not wholly unexceptionable manners, who, when a fellow member began an address at one of its meetings with the customary Mr. Chairman and Gentlemen,' remarked, sotto voce, but nevertheless audibly, And a very proper distinction!' The English law draws an equally proper distinction between 'attempt' and 'intent'; and in these days, when the maxim Voluntas reputabitur pro facto-like certain other legal maxims which shall be nameless-if it ever had any real vitality, is well-nigh obsolete, if not as dead as Queen Anne, there is small reason for lawyers to confuse these terms, or to regard them as in any sense synonymous. But we are far from being sure that that august, albeit miscellaneous, tribunal known. as C. C. R. has not, in its collective wisdom, succeeded, not only in confusing the terms, but-by a rather peculiar series of recently decided cases-in making confusion worse confounded, through a curious inconsistency of decision.

The question arises in connexion with so-called 'attempts' to commit impossible crimes. The subject appears to have been for the first time fully discussed by the Court for Crown Cases Reserved in Reg. v. M'Pherson (1857), 1 D. & B. 199. The prisoner in that case was indicted for breaking and entering a dwellinghouse and stealing therein certain goods specified in the indictment which goods in fact were not in the house at the time, though there were other goods there. The prisoner was convicted of breaking and entering and attempting to steal. A case was reserved, and argued before a strong Court, consisting of Cockburn C. J., Coleridge, Crowder and Willes JJ., and Bramwell B., who quashed the conviction on the ground that there was no 'attempt' to commit the felony charged. In the course of the argument for the Crown (no counsel appeared for the prisoner) both Coleridge J. and Cockburn C.J. protested against the confusion of attempt with intent, pointing out that though the prisoner when he broke into the house had the intention to steal the goods specified in the indictment, they not being there he could not attempt to steal them. Cockburn C.J. put the case shortly thus: "There can be no attempt asportare unless there is something asportare. There is a difference between

intending to do a thing and attempting to do it. A man goes to a place intending to commit a murder, but when he is there he does not find the man he expected to find. How can he be said to have attempted to commit the murder? He merely attempts to carry an intention into effect. Bramwell B., to the like effect, after referring to the hypothetical case suggested in argument, that a man putting his hand into an empty pocket might be convicted of attempting to steal, as plausible at first sight, disposed of it effectually by asking whether a man, who, believing a block of wood to be a man who was his deadly enemy, struck it a blow intending to murder, could be convicted of attempting to murder the man he took it to be. Separate judgments were delivered all proceeding on the same lines, Cockburn C.J. laying it down that: The word "attempt" clearly conveys with it the idea, that if the attempt had succeeded the offence charged would have been committed; but attempting to commit a felony is clearly distinguishable from intending to commit it. An attempt must be to do that which, if successful, would amount to the felony charged; but here the attempt never could have succeeded.'

Seven years later the hypothetical case of an attempt to pick an empty pocket, which had been suggested during the argument of Reg. v. M'Pherson, actually arose, and came in a concrete form before the Court for Crown Cases Reserved in Reg. v. Collins (1864) (L. & C. 471; 9 Cox C. C. 497; 33 L. J. (M. C.) 177; 10 L. T., N.S. 581), when Baron Bramwell's obiter dictum in arguendo in the former case received confirmation by the formal decision of an equally strong Court, consisting of Cockburn C.J., Williams J., Martin B., Crompton J., and Bramwell B. Mr. Poland for the defence picturesquely, but none the less accurately, described the prisoner's putting his hand into the empty pocket as a mere voyage of discovery.' The prisoner, as the Court pointed out, had a double purpose, first to ascertain whether there was anything in the pocket; secondly, to take it if there was. He tried to steal something, but was foiled because there was nothing. Counsel for the Crown sought to distinguish the block of wood illustration, on the ground that to shoot at a log by mistake for a man was not an analogous case; for shooting at a log is not an overt act towards shooting a man; and he contended that the case in question was more like shooting at a man in chain armour. But Cockburn C.J. promptly disposed of this contention by pointing out that the case would have resembled shooting at a man in chain armour, if there had been a purse in the pocket, but tied or otherwise fastened there. As illustrative of the principle that 'intent' without 'attempt' is nihil ad rem, the Court suggested various hypothetical

cases; as a man walking into an open house with intent to steal and finding the house empty; or a man going with a pistol with intent to rob and murder another in a lane, to which the intended victim did not come; or a man taking an umbrella from a stand with intent to steal it, and afterwards finding that the umbrella was his own; in none of which cases a conviction could be obtained. The Court held the case to be governed by Reg. v. M'Pherson, and accordingly quashed the conviction.

The criminal law of attempt as thus laid down in (1857) Reg. v. M'Pherson and in (1864) Reg. v. Collins was recognized as settled law in 1879 by all the members of the Criminal Code Bill Commission of that year, consisting of Lord Blackburn, Mr. Justice Barry, Mr. Justice Lush, and Mr. Justice Stephen. The Commissioners in their Report upon the Draft Code1 in proposing to alter the law said: 'Section 74, in this part, deals with attempts to commit offences, and treats the act of a person who, with the intention to carry off the money he believes to be there, puts his hand into a pocket, or breaks open a box, as an attempt to steal, though there was in fact no money in the pocket or box. This alters the law from what it has been held to be.' Accordingly, section 74 of the Code after defining an 'attempt' to commit a crime, in terms which substantially follow the language of the judgments in the cases above referred to, introduces the following clause (to which a note is appended, saying, 'This declares the law differently from Reg. v. Collins, L. & C. 471') :—

'Everyone, who, believing that a certain state of facts exists, does or omits an act the doing or omission of which would, if that state of facts existed, be an attempt to commit an offence, attempts to commit that offence, although its commission in the manner proposed was, by reason of the non-existence of that state of facts at the time of the act or omission, impossible 2.'

1 Report of the Criminal Code Bill Commission 1879, C. 2345, at pp. 19, 77.

* Section 74 further provided that: "The question whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law.' The exact point at which preliminary steps towards crime become criminal cannot, as Mr. Justice Stephen has pointed out, in the nature of things be precisely ascertained, nor is it desirable that such a matter should be made the subject of great precision. There is, as he remarks, more harm than good in telling people precisely how far they may go without risking punishment in the pursuit of an unlawful object. (General View of the Criminal Law of England, 2nd ed. (1890), p. 83.)

But it may be doubted whether the learned author be correct when he goes on to say (p. 84) that 'the bare formation of a criminal intention is not in itself criminal, but this is the last step towards crime of which this can be affirmed.' For in the illustration above quoted, the buying of the pistol and the going to the lane and the lying in wait for the victim would all be steps towards crime; but, it is conceived, not in themselves criminal, though they would come later than the formation of the criminal intention to kill, formed before the offender entered the shop to buy the pistol.

Neither the Draft Criminal Code of 1879 nor the more recent efforts at criminal law legislation have yet become law; and the new legislation, which the Draft Code of 1879 proposed for the alteration of the law as settled by Reg. v. Collins, has not been effected. The law therefore remained as laid down in that case; and Mr. Justice Stephen, accordingly in his History of the Criminal Law of England1 published in 1883, namely twenty years later than that decision, thus expounds it:

The most curious point on this subject (i. e. attempts) is the question whether, if a man attempts to commit a crime in a manner in which success is physically impossible, as for instance if he shoots at a figure which he falsely supposes to be a man with intent to murder a man, or puts into a cup pounded sugar which he believes to be arsenic, or attempts to pick an empty pocket, he has committed an attempt to murder or to steal. By the existing law (Collins's Case, L. & Ĉ. 471) he has committed no offence at all, and this is also the law of France, and I believe of other countries 2, the theory being that in such cases the act done merely displays a criminal intention, but cannot be regarded as an attempt because the thing actually done was in no way connected with the purpose intended to be effected. It was proposed by the Criminal Code Commission to reverse this, I think with unnecessary severity. The moral guilt is no doubt as great in the one case as in the other, but there is no danger to the public, and it seems harsh to treat as an attempt one only of many acts by which a criminal intention is displayed; but the question is one of little practical importance.'

But the question has now, in consequence of certain recent decisions, unsettling well settled law, become one of considerable practical importance and interest. For six years after the learned author just quoted had thus expounded the existing law no wind of new doctrine arose to ruffle the smooth current of judicial decision. The first troubling of the waters took place when (1889) Reg. v. Brown (24 Q. B.D. 357; 59 L. J. M. C. 47; 61 L.T. 594 ; 38 W. R. 95) came before the Court for Crown Cases Reserved,

Vol. ii. 225, and note (1). See also Stephen's Digest of the Criminal Law (Crimes and Punishments), 3rd ed. (1883), p. 37, Art. 49 (Illustration 9), 'An act \done with intent to commit a crime, the commission of which in the manner proposed was, in fact, impossible, is not an attempt to commit that crime.'

2 It is not a little singular that the learned author, who has a special acquaintance with our Indian legal system, should not have referred to the exception afforded by the provisions of the Indian Penal Code (XLV of 1860), chap. xxiii, sect. 511; which enacts that 'whoever attempts to commit an offence punishable by this Code ... and in such attempt does any act towards the commission of the offence shall be punished' as therein provided. The legislative illustration, appended to section 511, is neither more nor less than the facts in Reg. v. Collins, but with a different result. A makes an attempt to pick the pocket of Z by thrusting his hand into Z's pocket. A fails in the attempt, in consequence of Z's having nothing in his pocket. A is guilty under this Section.'

consisting of Coleridge C.J., Pollock B., Field, Manisty, Cave, Day, and Grantham JJ. The question was as to the validity of the conviction of the prisoner, a boy, for an attempt to commit an offence upon a fowl. The case was stated in consequence of a doubt which had arisen (owing to a supposed decision in an unreported case) whether a fowl was an 'animal' within the meaning of 24 & 25 Vict. c. 100, s. 61. The Court held that a fowl was within the statute; and, it being found as a fact in the case that the offence in question could have been committed, the conviction was accordingly affirmed. Having regard to this finding of fact any further deliverance by the Court with reference to the law as decided in Reg. v. Collins was clearly unnecessary and irrelevant. Nevertheless Coleridge C.J., by whom the case was stated, and who delivered the judgment of the Court, the rest of the Court merely concurring, proceeded to discuss and to over-rule Reg. v. Collins; notwithstanding that there had been no argument, no counsel appearing either for the Crown or for the prisoner. His Lordship, not forgetful of this fact, began by saying: 'It is no doubt a disadvantage that this case should not have been argued before us, but we have fully discussed the question ourselves.' Then, referring to Reg. v. Collins, he said: 'Now that is a decision with which we are not satisfied. It was in our opinion decided upon a mistaken view of the law1.' That this utterance was mere obiter dictum is indeed practically admitted in the following sentence, in the same part of the judgment: We do not think, however, that upon the facts, this case comes within Reg. v. Collins, for there seems no doubt that this boy could have completed the offence.'

Having regard to the language of the judgment just quoted it is not a little surprising to find the Lord Chief Justice in delivering the judgment of the Court for Crown Cases Reserved, (Hawkins, Wills, Lawrance, and Wright JJ., concurring,) a year or two afterwards in Reg. v. Duckworth ('92, 2 Q. B. 83), saying, in commenting

So reported in 59 L. J. (M. C.) 48, where the headnote refers to Reg. v. Collins as 'dissented from.' The report of the same case in 24 Q. B. D. 357 is to the same effect: That is a decision with which we are not satisfied... That case in our opinion is no longer law:' and the headnote treats the case as 'over-ruled.' So also does the headnote in 38 W. R. 96 where, in the report of the judgment, we have 'We do not think the decision in Reg. v. Collins should any longer be considered binding.' The report of the case in 61 L. T. 594, however, contains expressions differing toto coelo from these. The headnote refers to Reg. v. Collins as 'distinguished'; while in the judgment, as here reported, we read, Now that is a decision with which we all agree;' but, further on, the unreported case above referred to is mentioned as having 'proceeded on the authority of Reg. v. Collins, and so far as it proceeded on that authority, it was in our opinion decided upon a mistaken view of the law.' A legal contemporary commenting on these conflicting reports of Reg. v. Brown soon after their publication, afforded the following significant information respecting that decision: In point of fact, we believe the judgment was somewhat informal, and it was not very easy to catch what actually was said' (34 Sol. Jour. 653).