been done by his caste, and who were proceeding to drag him to the police. The ball dropped out while they were hustling him about. Glover, J., thought that it must be assumed "that a person going about at night provided with an apparatus specially fitted for committing mischief by fire intends to commit that mischief, and that he has already begun to move towards the execution of his purpose, and that is sufficient to constitute an attempt." Mitter, J., was of an opposite opinion. He said, "In order to support a conviction for attempting to commit an offence of the nature described in s. 511, it is not only necessary that the prisoner should have done an overt act towards the commission of the offence, but that the act itself (that is the overt act) should have been done in the attempt to commit it (that is the offence)." (3 B. A. Cr. 55.) It certainly seems to me that Mr. J. Mitter was right. The prisoner probably intended to commit arson and had prepared to commit it, but I cannot see that he had attempted to commit it. It is quite possible that the discussion among the villagers, showing that their suspicions were aroused against himself and his caste, would have induced him to give up his design and never to make any attempt.

A very curious question arises in cases where the completion of the crime has all along been physically impossible. Here a conflict of laws exists. In England, it has been ruled that a conviction for an attempt to steal from the person or in a dwelling house was bad, when in fact there was nothing which could have been stolen in the pocket into which the hand was thrust or in the house which was entered. (Reg. v. Collins, Leigh and C. 471. Reg. v. McPherson, 1 Dears. & B. 197. Reg. v. Johnson, 34 LJ. MC. 24.) In the two former cases, no doubt, the indictment stated that the goods actually were in the place where the attempt to steal was made, and in Reg. v. McPherson certain specific goods were named. Hence the prisoner would have been convicted of doing something different from what he was charged with. Had all mention of specific goods been omitted, as it might have been (Reg. v. Johnson, Leigh & C. 489), it is possible that a different decision might have been arrived at. Still, the language used seems to lay down the wide principle, that the crime which was attempted must have been possible. Cockburn, C. J., said,

"The word, attempt, clearly conveys with it the idea that if the attempt had succeeded the offence charged would have been committed, and, therefore, the prisoner might have been convicted if the things mentioned in the indictment, or any of them, had been there; 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, as the things which the indictment charges the prisoner with stealing had been already removed. The jury have found him guilty of attempting to steal the goods of the prosecutor, but not the goods specified in the indictment." (1 D. & B. 202.) And, again, he said, in the later case (L. & C. 474),

"There must be an attempt which, if successful, constitutes the full offence. Suppose a man were to go into a house without breaking and entering it, with intent to steal, and were to find the house empty, could he be convicted ?"

On the other hand it has been ruled in America (1 Bishop, § 675, 676) that a man may be convicted of attempting to steal by thrusting his hand into an empty pocket, and the illustrations to s. 511 are authoritative rulings that the Code is to be interpreted in the same way. (See too Reg. v. Cassidy, 4 Bomb. H. C. Cr. 17, ante, p. 251.) As Mr. Bishop says (1 Bishop, § 682),

"The doctrine on principle is, that if, in matter of fact, some circumstance attends the particular instance, unknown to the offender, which circumstance is only special to the instance and not ordinarily attending similar cases, the failure of the offender to do the thing intended, through the intervention of this circumstance, prevents not his act from being indictable. It is then an attempt; precisely as, the circumstance not intervening, it would have been an executed substantive crime. Therefore, also, if the attempt consists in discharging a ball from a gun into a dwelling house believed to be inhabited, while in truth no person is in the house, or inflicting a wound on a man who, unknown to the aggressor, is encased in armour, or in sending a challenge to one whose principles will not permit him to fight, or in administering poison to one who has already an antidote in his stomach, or in doing any other thing which fails by reason of some such casual obstacles intervening, the attempt is complete, since there is created the apparent insecurity against which the criminal law protects the public.'

But what are we to say to the case put by Bramwell, B. (1 D. & B. 201), “ suppose a man, believing a block of wood to be a man who was his deadly enemy, struck it a blow intending to murder, could he be convicted of attempting to murder the man he took it to be ?"

I imagine that the answer to the question would depend entirely upon the circumstances of the case. If a person were to enter a man's house by night intending to murder him, and were to fire at what he supposed to be his enemy, though it turned out to be only his coat, it seems to me that the person firing would be most justly convicted. But if a man in a jungle, seeing something move, which he supposes to be his enemy, fires at it, and it turns out that there is no human being near, then I conceive that he could not be indicted for an attempt to murder. In the former case every circumstance necessary for the commission of the crime is present, except one, of whose absence the party is ignorant. In the latter case no single circumstance is present. The person has the intention to commit a crime, but his act does not in any degree lead towards the commission of it, or even in that direction.

It must be admitted, however, that cases may be imagined in which the distinction would be narrow and almost evanescent. It may be more rigorous logic to hold that an attempt has only taken place, where the act done towards the commission of the crime would, if continued, have terminated in the complete offence. But the view taken by the American and Continental jurists (1 Bishop, § 663), and by the authors of the Penal Code, is more conducive to public safety. From the foregoing remarks it will appear, that to constitute an attempt there must be an intention to commit a particular crime, a commencement of the commission, and an act done towards the commission. Sometimes the act done may be innocent, except for the

intention; as for instance, putting money into a man's pocket, in order to charge him with theft. (1 Bishop, § 685.) Sometimes it may be criminal, as for instance an attempt to rob, commenced by an assault. But in either case, if the act is to be aggravated by the particular intent assigned, that intent must be proved, as being the essence of the offence, and though it may be presumed from the surrounding circumstances, it cannot be assumed. For instance, if a man is found in a house at midnight, it might under one set of circumstances be the fair presumption that he came to steal; under another set, that he came to commit adultery; under a third set of circumstances, no presumption of any criminal intent might arise. Where a particular intent is charged, as constituting an attempt to commit a specific crime, it is not necessary that there should be any evidence of the intent besides the circumstances connected with the abortive act itself. But unless those circumstances, coupled with the other evidence (if any), establish, not only some criminal intent, but the particular criminal intent which has been charged, the prisoner must be acquitted.

Hence, also, the particular intention must last until such an act has been done, as would, by its union with the intention, constitute a criminal attempt. But as soon as this stage has been reached, the criminal attempt is complete. Should the party then abandon the prosecution of the offence, from fear, fatigue, repentance, or any other cause, he will still be punishable for the attempt. For instance, if a man goes to a place armed, intending to commit murder, but when he is there does not find his enemy, or having found him shrinks from attacking him, this would not be an attempt. (1 D. & B. 201.) So, if he went to a house with implements of house-breaking, intending to commit burglary, but on reaching the door heard cries of distress and broke in to rescue the sufferer, this would neither be house-breaking nor an attempt at it. But if a thief, having entered a house in order to steal, finds a dying man inside and then gives up his criminal object, and remains in the house merely to assist him, he would still be indictable for an attempt to steal in a dwelling house. (1 Bishop, § 366, 664, 692.) And it has been so ruled in America, where, in cases of attempt to commit rape, the prisoner had voluntarily desisted before consummating his object. (1 Bishop, § 664, n. 5.)

It has been held in England, that the delivery of poison to an agent, with directions to him to cause it to be administered to another under such circumstances, that (if administered) the agent would have been the sole principal felon, was not "an attempt to administer poison" within the third Section of 1st Vict. c. 85 (William's case, 1 Den. C.C. 39.) In that case the agent had given immediate information against the prisoner. Had the case occurred in India the indictment should, I think, have been for abetting, not for an attempt. A person. ought only to be indicted under s. 511, where the crime, if completed, would have been his act, or one for which he would have been jointly responsible.

Where a prisoner has been indicted for committing any offence the Jury may find him not guilty of committing, but guilty of attempting to commit the offence under this Section. (Act XVIII of 1862, s. 17.) And he might be similarly convicted under s. 457 of the Cr. P. C.

An attempt to commit an offence punishable with whipping is not so punishable. (2 R. J. and P. 272. 3 Bomb. H. C. Cr. 37.) Nor can a person who is convicted of an attempt to commit an offence under Chapters XII or XVII be subjected to extra-punishment under s. 75 in consequence of a previous conviction under those chapters. This only applies to cases where both convictions have been punishable under those chapters. (Reg. v. Moonesawmy, per Bittleston, J., 1st Mad. Sessions 1865.) But on a second conviction for an attempt to commit robbery, whipping may be inflicted under cl. 9. s. 4 of Act VI of 1864.

DD

The object of an indictment is to inform the Judge of the offence which he has to try, and the prisoner of the charge which he has to meet. It is necessary, therefore, that the indictment should upon its face contain such statements as amount to a criminal offence, otherwise the indictment might be fully proved and yet no crime be established. No necessary ingredient can be supplied by evidence if it has not been alleged in the indictment, for if such looseness were allowed the prisoner would be convicted not upon the facts with which he had been charged, but upon something in addition to them. (Arch. 43. Reg. v. Richmond, 1 C. & K. 240.) Accordingly, in a case before the Supreme Court, where the prisoners were indicted under 9 Geo. IV, c. 74, s. 69, which makes it an offence to decoy children from their parents by force or fraud, and the indictment contained no allegation that either force or fraud had been employed, it was held that no conviction could be had. (Reg. v. Habeeb Sah, 2nd Madras Sessions, 1860.) A further reason is, that if no such accuracy were required the Court of Appeal would be unable to ascertain by an inspection of the record whether any conviction could legally ensue, and whether the punishment awarded was warranted by the crime. Not only must an offence be alleged, but the particular offence must be stated, otherwise the indictment will not inform the prisoner of the charge against him with sufficient accuracy to put him upon his guard. It is not sufficient to assert that he robbed, cheated, or defamed. It is necessary to state whom he robbed, and how he cheated, and what defamatory words he used. As Lord Ellenborough, C. J., said (Reg. v. Stevens, 5 East. 258),

"Every indictment or information ought to contain a complete description of such facts or circumstances as constitute the crime, without inconsistency or repugnance; and, except in particular cases, where precise technical expressions are required to be used, there is no rule that other words shall be employed than such as are in ordinary use."