under the Larceny Act, 1861; the Malicious Injuries to Property Act, 1861; the Forgery Act, 1861; the Coinage Offences Act, 1861; or the Offences against the Person Act, 1861 (except murder), is liable upon conviction to the punishments above mentioned.

CHAPTER V

1 DEGREES IN THE COMMISSION OF CRIME-INCITEMENT—

CONSPIRACY-ATTEMPTS

ARTICLE 48.

INCITEMENT TO COMMIT A CRIME.

2 EVERY one who incites any person to commit any crime commits a misdemeanor, whether the crime is or is not committed.

ARTICLE 49.

CONSPIRACY TO COMMIT A CRIME.

3 When two or more persons agree to commit any crime, they are guilty of the misdemeanor called conspiracy whether the crime is committed or not, and though in the circumstances of the case it would be impossible to commit it.

ARTICLE 50.

DEFINITION OF ATTEMPTS.

5 An attempt to commit a crime is an act done with intent to commit that crime, and forming part of a series of acts. which would constitute its actual commission if it were not interrupted.

12 Hist. Cr. Law, ch. xxii. pp. 221-241.

2 R. v. Higgins, 1801, 2 Ea. 5-22; R. v. Schofield, 1784, Cald. 397 ; R. v. Gregory, 1867, 1 C. C. 77. In R. v. Leddington, 1839, 9 C. & P. 79, a man was charged with inciting a man to commit suicide, and Alderson, B., directed an acquittal, saying, "This is a case which by law we cannot try." The reasons for this direction are not given, and a note to the case does not make them clear. As to the case of R. v. Welham, see Note II.

3 Mulcahy v. R., 1868, L. R. 3 H. L. at p. 317; R. v. Bunn, 1872, 12 Cox, C. C. 316, and see cases collected in Roscoe, Cr. Ev. 401–404.

4 R. v. Whitchurch, 1890, 24 Q. B. D. 420.

5 See cases referred to in Illustrations, and Draft Code, s. 74.

The point at which such a series of acts begins cannot be defined; but depends upon the circumstances of each particular case.

An act done with intent to commit a crime, the commission of which in the manner proposed was, in fact, impossible, is an attempt to commit that crime.

The offence of attempting to commit a crime may be committed in cases in which the offender voluntarily desists from the actual commission of the crime itself.

Illustrations.

(1.) 1 A writes and sends to B a letter, inciting B to commit a felony. B does not read the letter. A has attempted to incite B to commit a felony.

(2.) 2 A procures dies for the purpose of coining bad money. A has attempted to coin bad money.

(3.) 3 B is a contractor for the supply of meat to a regiment. A is B's servant, and his duty is to return the surplus meat to B, after weighing out a certain allowance to each mess. By using a short weight, A sets aside, as surplus, sixty pounds instead of fifteen pounds, intending to steal the forty-five pounds, and return the fifteen pounds to B. A's fraud is discovered before he carries the meat away. A attempts to steal the fortyfive pounds as soon as he sets aside the sixty pounds.

4

(4.) A, by false pretences as to the number of loaves he had delivered under a contract, obtains credit in account for the loaves, and would have been paid for them but for the discovery of the fraud. This is an attempt to obtain money by false pretences, as it was the last step depending on the defendant towards obtaining it.

(5.) 5 A, after threatening to shoot B, points a pistol at her, his hands are seized before he can fire, but his finger and thumb are seen fumbling with the trigger. A has attempted to

shoot B.

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(6.) A procures indecent prints with intent to publish them. A has attempted to publish indecent prints. (Semble.)

1 R. v. Ransford, 1874, 31 L. T. (N.S.) 488.

2 Roberts's Case, 1855, D. & P., 539.

3 Cheeseman's Case, 1862, L. & C., 140.

4 R. v. Eagleton, 1855, D. & P., 515.

5 R. v. Duckworth, 1892, 2 Q. B. 83.

6 Dugdale v. R., 1853, 1 E. & B. 435; R. v. Dugdale, D. & P. 64.

(7.) 1 A goes to Birmingham to buy dies to make bad money. A has not attempted to make bad money.

2

(8.) A having in his possession indecent prints, forms an intent to publish them. A has not attempted to publish indecent prints.

(9.) A mistaking a log of wood for B, and intending to murder B, strikes the log of wood with an axe. A has not attempted to murder B.

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(10.) A puts his hand into B's pocket with intent to steal whatever he finds there; the pocket is empty. A has attempted to steal from B's person.

(11.) 5 A kneels down in front of a stack of corn, and lights a lucifer match, intending to set the stack on fire; but observing that he is watched blows it out. A has attempted to set fire to the stack.

ARTICLE 51.

ATTEMPT-MISDEMEANOR.

Every attempt to commit an offence, whether treason, felony, or misdemeanor, is a misdeameanor, unless it is otherwise specially provided for.

1 Per Jervis, C.J., in Roberts's Case, 1855, D. & P. 551.

2 Dugdale v. R., 1857, 1 E. & B. 435; R. v. Dugdale, D. & P. 64.

3 Per Bramwell, B., in R. v. McPherson, 1857, D. & B. 201.

4 R. v. Ring, 1892, 61 L. J. M. C. 116, following R. v. Brown, 1889, 24 Q. B. D. 357; in which case it was held by a specially constituted court that an attempt to have carnal knowledge of a fowl, which is impossible, was an offence under 24 & 25 Vict. c. 100, s. 61. R. v. Brown is important as explicitly over-ruling R. v. Collins, 1864, L. & C. 471, which was decided on facts similar to those in R. v. Ring, but in the contrary way. The prisoner's intent to steal whatever he could find is more definitely stated in R. v. Collins than in R. v. Ring, but it must be taken to have existed in the latter case.

5 R. v. Taylor, 1859, 1 F. & F. 511.

It is difficult to put a case of an attempt to commit treason, as an overt act done with intent to commit treason would generally be treason: see the next Chapter. In the case of treasons defined in Arts. 59 and 60 there might be an attempt. See many cases collected in 1 Russ. Cr. 189-190, and 2 Hist. Cr. Law, 221–7.

HIGH TREASON, TREASONABLE FELONIES, AND ASSAULTS ON THE QUEEN, DISCLOSING OFFICIAL SECRETS, MISAPPLYING MARKS OF A PUBLIC DEPARTMENT.

ARTICLE 52.

HIGH TREASON BY IMAGINING THE QUEEN'S DEATH.

1 EVERY one commits high treason who forms and displays by any overt act, or by publishing any printing or writing, an intention to kill or destroy the Queen, or to do her any bodily harm tending to death or destruction, maim or wounding, imprisonment or restraint.

ARTICLE 53.

WHAT AMOUNTS TO IMAGINING THE QUEEN'S DEATH.

2 Every one is deemed to have formed an intention to put the Queen to death who forms and displays by any overt act an intention

* See 2 Hist. Cr. Law, ch. xxiii. pp. 241-97, and Draft Code, Part V. 1 25 Edw. 3, st. 5, c. 2; 36 Geo. 3, c. 7, ss. 1, 6; 57 Geo. 3, c. 6; 11 Vict. c. 12, s. 2; and Draft Code, s. 75.

2 Foster's Discourse of H. T. ch. i. s. 5, pp. 195-7; ch. ii. ss. 3, 4, 6, pp. 211-13; Draft Code, s. 75.