Every such offender is liable, at the discretion of the Court, to be imprisoned for any term not exceeding two years, with or without hard labour, and the Court may require the offender to enter into his own recognizance, and to find sureties (both or either) for keeping the peace, in addition to such imprisonment; but no such person can be imprisoned for not finding sureties for any period exceeding one year.

1Every accessory after the fact to any felony punishable 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; but offenders against the first, second, and third, but not offenders against the fourth and fifth, of the said Acts may be sentenced to solitary confinement in addition to the other punishments above mentioned.

124 & 25 Vict. c. 96, ss. 98-117; Ibid. c. 97, ss. 56-73; Ibid. c. 98, ss. 49-51; Ibid. c. 99, ss. 35-38; Ibid. c. 100, ss. 35-71.

CHAPTER V.

'DEGREES IN THE COMMISSION OF CRIME-INCITEMENT

CONSPIRACY-ATTEMPTS.

ARTICLE 47.

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 48.

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.

4

ARTICLE 49.

DEFINITION OF ATTEMPTS.

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.

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 com

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

2 R. v. Higgins, 2 East, P. C. 5-22; R. v. Schofield, Cald. 397; R. v. Gregory, L. R. 1 C. C. 77. In R. v. Leddington, 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., L. R. 3 H. L. 317; R. v. Bunn, 12 Cox, C. C. 316, and see case s collected in Roscoe, Cr. Ev. 409-10.

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

mission of which in the manner proposed was, in fact, impossible, is not 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.) A procures dies for the purpose of coining bad money. A has attempted to coin bad money.

(3.) 3B 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.) 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 procures indecent prints with intent to publish them. A has attempted to publish indecent prints. (Semble.)

6

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

7

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

(8.) 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.

8

(9.) A puts his hand into B's pocket with intent to steal whatever he finds there; the pocket is empty. A has not attempted to steal from B's person.

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

2 Robert's Case, Dearsley, C. C. 539.

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

4 R. v. Eagleton, Dear. C. C. 515.

Dugdale v. R., 1 E. & B. 435; R. v. Dugdale, Dear. C. C. 64.

Per Jervis, C.J., in Roberts's Case, Dearsley, C. C. 551.

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

Collin's Case, L. & C. 471. It is submitted, however, that he has committed

an assault on B. with intent to commit a felony, Article 245 (a).

(10.) 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 50.

ATTEMPT-MISDEMEANOR.

Every attempt to commit an offence, whether treason, felony, or misdemeanor,2 is a misdemeanor, unless it is otherwise specially provided for.

1 R. v. Taylor, 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. 58 and 59 there might be an attempt. See many cases collected in 1 Russ. Cr. 190, and 2 Hist. Cr. Law, 221-7.

HIGH TREASON, TREASONABLE FELONIES, AND ASSAULTS ON THE QUEEN.

ARTICLE 51.

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 52.

WHAT AMOUNTS TO IMAGINING THE QUEEN'S DEATH.

2 Every one is deemed to have formed an intention to put

* See 2 Hist. Cr. Law, ch. xxiii. pp. 241–97, and Draft Code, Part V. 125 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.