Imágenes de páginas

it does not become a public bridge. R. v. Inhab. of Bucks, 12 East, 203, 204. Though it is otherwise if the public have constantly used the bridge, and treated it as a public bridge. R. v. Inhab. of Glamorgan, 2 East, 356 (n). Where a miller, on deepening a ford through which there was a public highway, built a bridge over it which the public used, it was held that the county was bound to repair. R. v. Inhab. of Kent, 2 M. & S. 513. A question has sometimes arisen whether arches adjacent to a bridge, and under which there is passage for water in times of flood, are to be considered either as forming part of the bridge, or as being themselves independent bridges. Where arches of this kind existed more than 300 feet from a bridge, on an indictment against the county for non-repair of them, and a case reserved, the Court of King's Bench held that the county was not liable. R. v. Inhab. of Oxfordshire, 1 Barn. & Aid. 297 (n). The rule laid down by Lord Tenderden, C. J., in the latter case was, that the inhabitants of a county are bound, by common law, to repair bridges erected over such water only as answers the description of flumen vel cursus acquce, that is, wafer flowing ina channel between banks more or less defined, although such channel may be occasionally dry. But where a structure, called Swarkestone Bridge, was 1,275 yards long; at the eastern end were five arches under which the river Trent flowed; at the western end eight arches, under one of which a stream constantly flowed; the rest of the space consisted of a raised causeway, at different intervals, in which there were twenty-nine arches, under most of which there were pools of water at all times, and under all of which the water of the Trent flowed in time of flood. There was no interval of causeway between the arches of the length of 300 feet. The county of Derby had immemorially repaired the whole structure. On an indictment against the inhabitants of the county for the non-repair of the structure, describing the whole as a bridge, it was held that it was properly so described, and that the verdict was properly entered for the crown. R. v. Inhab. of Derbyshire, 2 Gal. & Dav. 97. Before the 43 Geo. 3, c. 59, a bridge had been built over a stream of water. The stream was never known to be dry, but in the winter its depth only averaged two and a half feet. It was a part of a sheet of water crossing low land, and at the place where the bridge crossed it, it was confined by embankments to prevent it from overflowing the adjoining meadows. Cresswell, J., left it to the jury, whether this structure was a bridge, for if so, their verdict must be for the crown. If it had been erected for the convenience of the public in passing over the stream of water, it was a county bridge, and rendered the county liable to repair it, though the bridge might not have been necessary for the convenience of the public when it was built. R. v. the Inhab. of Gloucestershire, Carr. & M. 506, 41 E. C. L. In the following case, a question arose whether a bridge for foot-passengers, which had been built adjoining to an old bridge, for carriages, was parcel of the latter. The carriage-bridge had been built before 1119, and certain abbey lands were charged with the repairs. The proprietors of those lands had always repaired the

[ocr errors][merged small]

At common law

By statute . .

Conviction for an attempt on indictment for principal offence

Nature of the attempt

Aiding in an attempt

[ocr errors]

At common law. At common law every attempt to commit a felony or misdemeanor is in itself a misdemeanor. So long as the act rests in bare intention it is not punishable. But if that intention be unequivocally manifested by some overt act, then it becomes an offence cognizable by the law. And the mere soliciting another to commit a felony is a sufficient overt act to constitute the misdemeanor of attempting to commit a felony. Thus to solicit a servant to steal his master's goods is a misdemeanor, though it be not charged in the indictment that the felony was actually committed. Per Gross, J., R. v. Higgins, 2 East, 8. So an endeavor to provoke another to send a challenge to fight has been held to be a misdemeanor. R. v. Phillips, 6 East, 464. So, to endeavor by some act to induce another person to attempt to commit a felony is a misdemeanor. R. v. Ransford, 13 Cox, C. C. R. 9. And it makes no difference whether the offence which is attempted be one which is an offence at common law, or created by statute. Per Parke, B., R. v. Roderick, 7 C. & P. 795, 32 E. C. L. So it has been frequently held that attempts to bribe, and attempts to suborn a person to commit perjury, are indictable misdemeanors. 1 Russ. Cr. 5th ed. 190, 318,post, tit. "Bribery and Perjury." And by the 14 & 15 Vict. c. 100, s. 9, infra, p. 312, a prisoner may be found guilty of this common law offence of the .attempt upon an indictment for the principal offence.1

1 An assault with intent to kill is no felony at common law, though anciently it was so considered. Commonwealth r. Barlow, 4 Mass. 439. In crimes which require force as an element in their commission, there is no material difference between an assault with intent and an assault with nttempt, to commit the crime. Johnson r. State, 14 Go. 55; Prince v. State, 35 Ala. 307. [But while an indictment for an attempt to commit rape may be sustained by proof of threats, one for an assault with intent to commit a rape cannot be, as the latter implies force. Burney r. State, 21 Tex. App. 565.] In an indictment for an assault with an intent to commit a murder, the intent must be specifically proved. State v. Neal, 37 Me. 463: King r. State, 21 Ga. 220; State r. McClun, 25 Mo. 333; Hopkinson r. People, 18 111. 264. As for attempts to commit offences: See Commonwealth r. Dennis, 105 Moss. 162; State v. Ellis, 33 N. J. 102; State v. Sales, 2 Nov. 2G3; Smith v. Commonwealth, 54 Pa. St. 209. The principle that to make a crime of an attempt to commit acrime, there must have been a present ability to perpetrate the crime intended( applies only to the act itself. If the act is in itself efficient to produce the effect intended, the offence is complete, although the effect be defeated by something extrinsic to the act. State v. Wil. son, 30 Conn. 500. In order to constitute an attempt to commit a crime, there must appear to have been more than a mere design or intention to commit the offence;

By statute. Many attempts to commit offences are provided for by statute. Most of them would be offences at common law, but, by statute, severe penalties are attached to them, or they are even made independent felonies. Thus, by the 24 & 25 Vict. c. 100, ss. 18, 21 (supra, p. 301), the attempt to commit any of the offences therein mentioned is made a felony. By s. 15 of the same statute, "Whosoever shall, by any means other than those specified in any of the preceding sections of this act, attempt to commit murder, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for life, or for any term not less than three [now five] years, or to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement."

In s. 21 {supra, p. 301), the attempt to choke, etc., is specially *mentioned. By s. 62 (supra, p. 303), any attempt to commit r*gj2 an infamous crime is specially provided for. L

In almost all cases provisions for the offence of setting fire to various kinds of property are followed by provisions directed against the attempt to commit the same offence. See 24 & 25 Vict. c. 97, ss. 8, 10, 18, 27, 38, 44, supra, tit. "Arson."

Conviction for attempt on indictment for principal offence. By

the 14 & 15 Vict. c. 100, s. 9, " if upon the trial of any person charged with any felony or misdemeanor, it shall appear to the jury upon the evidence that the defendant did not complete the offence charged, but that he was guilty only of an attempt to commit the same, such person shall not by reason thereof be entitled to be acquitted, but the jury shall be at liberty to return as their verdict that the defendant is not guilty of the felony or misdemeanor charged, but is guilty of an attempt to commit the same, and thereupon such person shall be liable to be punished in the same manner as if he had been convicted upon an indictment for attempting to commit the particular felony or misdemeanor charged in the said indictment; and no person so tried as herein lastly mentioned shall be liable to be afterwards prosecuted for an attempt to commit the felony or misdemeanor for which he was so tried. It has been suggested that the above section only applies to offences created by statute passed subsequently to that Act, and that it does not apply to felonies at common law. If that is so the prisoner ought to be separately indicted for the attempt to commit the common law felony. But the words of the statute seem to be very general, and would probably be held to include felonies at common law. See note to R. v. Bain, L. & C. 129; R. v. Hapgood, L. R. 1 C. C. 221; 39 L. J., M. O. 83, post, p. 314.

Nature of the attempt. It is not easy always to decide whether or not an indictable attempt has been committed. The following cases may

there mast have been some ineffectual act or acts towards its accomplishment. People v. Lawton, 56 Barb. 126. 8.

In an indictment for an assault with attempt to steal, the goods need not be described when nothing has been taken. Grogan v. State, 63 Miss. 147.

serve to illustrate the subject. In R. v. Carr. Russ. & Ry. 377, the prisoner was indicted under the repealed statute, 7 Will. 4 & 1 Vict, c. 85, s. 3, for attempting to discharge a loaded gun at a person with intent to murder; the jury found that the gun Mas loaded, but not primed; it was held that the prisoner could not be convicted. So where the touch-hole was plugged, so that the arm could not be discharged. R. v. Harris, 5C.&P. 153, 24 E. C. L. In R. v. Williams, 1 Den. C. C. 39, the prisoner was indicted under the last-mentioned section for attempting to administer poison. It appeared that he had delivered poison to V. and desired him to put it into B.'s beer; V. delivered the poison to B. and told him what had passed. It was held that the prisoner could not be convicted on this indictment. But quart if this is not an attempt indictable at common law; see the case of R. v. Higgins, supra. In R. v. St, George, 9 C. & P. 483, 38 E. C. L., the prisoner was indicted under the 7 Will. 4 & 1 Vict. c. 85, s. 4, for an attempt to shoot; he had put his finger on the trigger of a loaded fire-arm with the intention of shooting, but was prevented from doing so ; this was held by Parke, B., not to be an attempt to shoot within the statute. This opinion was delivered after a careful consideration and consultation with Williams, J. Considerable doubt

Q. B. D. 381 ; 52 L. J., M. C. 49. In R. v. Taylor, 1 F. & F. 535, the prisoner was indicted for attempting to set fire to a stack. It 11 *aPPeare<l tna* *lie prisoner, after a quarrel with the prosecutor, J and a threat "to burn him up," went to a neighboring stack, and kneeling down close to it, struck a lucifer match, but, discovering that he was watched, blew out the match and went away. Pollock, C. B., told the jury that, if they thought the prisoner intended to set fire to the stack, and that he would have done so if he had not been interrupted, this was, in his opinion, a sufficient attempt to set fire to the stack within the meaning of the statute. "It is clear," said the learned judge, "that every act committed by a person with the view of committing the felonies therein mentioned is not within the statute; as, for instance, buying a box of lucifer matches with intent to set fire to a house. The act must be one immediately and directly tending to the execution of the principal crime, and committed by the prisoner under such circumstances as that he has the power of carrying his intention into execution. If two persons were to agree to commit a felony, and one of them were, in execution of his share in the transaction, to purchase an instrument for the purpose, that would be a sufficient overt act in an indictment for conspiracy, but not in an indictment of this nature." In R. v. McPherson, Dears. & B. C. C. 197, the prisoner was indicted for breaking and entering a dwelling-house and stealing therein certain goods specified in the indictment. It appeared that at the time the house was oeing broken into, the goods specified were not in the house, but there were other goods there belonging to the prosecutor. The jury found the prisoner guilty of breaking and entering the dwelling-house and attempting to steal the goods therein. But the Court of Criminal Appeal held that the conviction could not be

has, however, been thrown


this decision in R. v. Brown, 10 supported. Cockburn, C. J., said, "I think 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. Here the attempt never could have succeeded, as the goods which the indictment charges the prisoner with stealing had been removed." See R. v. Collins, L. & C. 471 j 33 L. J., M. C. 177: and also R. ». Johnson, 34 L. J., M. C. 24.

The prisoner had procured from an innocent agent certain implements and dies for the purpose, and with the intention of making counterfeit Peruvian dollars, but the prisoner only intended to make a few dollars in England by way of experiment, and then send the apparatus out to Peru. The prisoner was indicted for procuring coining instruments with intent to use them for the purpose of making counterfeit foreign coin, and so attempting to make such counterfeit coin. Another count charged him with attempting to coin counterfeit Peruvian half-dollars by procuring coining instruments, with intent to use them in coining such counterfeit coin; a third count was for attempting to coin Peruvian half-dollars, without stating the means. The question was reserved for the Court of Criminal Appeal, whether the prisoner by procuring the instruments mentioned in the indictment, with the intention of using them in the manner above stated, was guilty of an offence against the law of this country, and whether any or either of the above counts sufficiently alleged such offence. The conviction was upheld. The only question argued was, whether the attempt was sufficiently connected with the offence to constitute an attempt to commit a felony, and the court held that it was, as there was a clear criminal intent, * indicated by an overt act which was unequivocal. R. t>. r*o1A Roberts, 1 Dears. C. C. 539. L Al*

The prisoner was servant to a contractor for the supply of meat to the camp at Shorncliffe: it was the course of business for the contractor to send the meat to the quartermaster-sergeant, who with the assistance of the prisoner or some other servant of the contractor weighed the meat with his own weights and scales, and served it out to the different messes, a soldier attending from each mess for the purpose of receiving it: the prisoner removed one of the weights supplied by the quartermaster-sergeant, and substituted for it a short weight of his own. By this means the quantity delivered to the soldiers was about 45 lbs. less, and the quantity remaining over, which would in the course of business have been carried away to the contractor, was about 45 lbs. more than it ought to have been. The fraud was detected before the weighing was completed, and the prisoner absconded. The jury found that ne intended to dispose of the 45 lbs. surplus for his own purposes. Upon these facts he was convicted of attempting to steal 45 lbs. of meat, the property of his master. The Court for Crown Cases Reserved upheld the conviction. Erie, C. J., observed, "It is said that the evidence does not show any such proximate overt act as is sufficient to support the conviction for an attempt to steal the meat In my opinion there were several overt acts which

« AnteriorContinuar »