of the statute were denounced against the person whose saloon is not kept closed, and that no other fact than that it was not kept closed was necessary to complete the offense. "The section," said Cooley, C. J., "makes the crime consist, not in the affirmative act of any person, but in the negative conduct of failing to keep the saloon closed." So, under a statute providing that no licensee of a saloon shall place or maintain, or permit to be placed or maintained, on the premises, any screen or curtain or other obstruction, it was held that a licensee was liable for a screen or curtain which a servant maintained in his absence and against his orders, on the ground that the statute by fair intendment made the licensee responsible for the condition of his premises, and liable whether the prohibited act was done by him personally or by his agent left in charge of the business.10 On the other hand, where a saloon keeper was prosecuted under another section of the same statute, which provided that "no person shall sell or expose or keep for sale spirituous or intoxicating liquors except as authorized in this chapter," it was held that the defendant was not liable for a sale made without his knowledge between prohibited hours, it appearing that he had given strict orders that no such sale should be made, upon the ground that the section on which the complaint was based subjected to punishment "any person who sells liquor," and that it was unreasonable to construe it as subjecting to punishment a person who does not sell, because a servant in his employ, in opposition to his will and against his orders, makes an unlawful sale.11 People v. Roby, supra. Cf. People v. Parks, 49 Mich. 333, 13 N. W. 618, and People v. Welch, 71 Mich. 548, 39 N. W. 747, 1 L. R. A. 385, where the statutes involved were differently construed. 10 Com. v. Kelley, supra. 11 Com. v. Wachendorf, 141 Mass. 270, 4 N. E. 817. AGENT'S LIABILITY FOR HIS OWN ACTS 53. An agent, if of sufficient mental capacity, is criminally liable for his acts, though they are committed by command of his principal, and in the course of his principal's business,12 A servant or other agent, if he has the requisite knowledge and intent to render him liable for his acts, can never defend, when prosecuted for a criminal act, on the ground that he was commanded by his master to do the act, or that the act was in the course of his master's business. As we have already seen, no command will excuse an act,13 except, in some cases, the command of a husband to his wife.1 Thus, a barkeeper illegally selling liquor is equally liable with his employer.15 Even a voluntary agent who makes an unlawful sale of liquor, or assists in maintaining a liquor 14 121 Bl. Comm. 429, 430; 2 Dane, Abr. 316. Liable for nuisance, State v. Bell, 5 Port. (Ala.) 365; Allyn v. State, 21 Neb. 593, 33 N. W. 212. Keeping eating house without license, Winter v. State, 30 Ala. 22. Keeping house as liquor nuisance, liable where he has charge of business, Com. v. Merriam, 148 Mass. 425, 19 N. E. 405; Com. v. Kimball, 105 Mass. 465; but not where master is sole proprietor, and directly superintends the business, Com. v. Galligan, 144 Mass. 171, 10 N. E. 788, and cases there cited; State v. Gravelin, 16 R. I. 407, 16 Atl. 914 (cf. State v. Hoxsie, 15 R. I. 1, 22 Atl. 1059, 2 Am. St. Rep. 838). Keeping gaming house, Stevens v. People, 67 Ill. 587; Com. v. Drew, 3 Cush. (Mass.) 279. 13 Ante, p. 101. 14 Ante, p. 102. 15 Com. v. Hadley, 11 Metc. (Mass.) 66; Com. v. Hoyer, 125 Mass. 209; Com. v. Brady, 147 Mass. 583, 18 N. E. 568; State v. Wiggin, 20 N. H. 449; Schmidt v. State, 14 Mo. 137; Hays v. State, 13 Mo. 246; State v. Matthis, 1 Hill (S. C.) 37; State v. Wadsworth, 30 Conn. 55; French v. People, 3 Parker, Cr. R. (N. Y.) 114; Menken v. City of Atlanta, 78 Ga. 668, 2 S. E. 559; Davidson v. State, 27 Tex. App. 262, 11 S. W. 371; State v. Chastain, 19 Or. 176, 23 Pac. 16 nuisance, and who receives no compensation for his work, is guilty. If, however, a servant does not in fact know he is doing wrong, and is not charged by law with knowledge, as, for instance, where he takes another's property for his master, which he believes to be his, but which the master intends to steal, not having the particular intent necessary to constitute the crime, the servant is not criminally liable.17 963; Baird v. State, 52 Ark. 326, 12 S. W. 566; State v. Morton, 42 Mo. App. 64; Abel v. State, 90 Ala. 631, 8 South. 760. 16 State v. Finan, 10 Iowa, 19; 587; State v. Bugbee, 22 Vt. 32; South. 300; State v. Herselus, 86 v. State, 69 Miss. 217, 13 South. 835. 55. Com. v. Williams, 4 Allen (Mass.) 17 Reg. v. Bleasdale, 2 Car. & K. 765; State v. Matthews, 20 Mo. NECESSITY FOR OVERT ACT 54. The law does not punish mere intention, but requires some overt act in an attempt to carry the intention into execution. EXCEPTION-There is an exception to this rule in the case of conspiracy, unless the conspiring may be regarded as an overt act. ATTEMPTS 55. An attempt to commit a crime is an act done with intent to commit that crime, and tending to, but falling short of, its commission. (a) The act must be such as would be proximately connected with the completed crime. (b) There must be an apparent possibility to commit the crime in the manner proposed. (c) There must be a specific intent to commit the particular crime at the time of the act. (d) The attempt must be unsuccessful. (e) Voluntary abandonment of purpose after an act constituting an attempt is no defense. (f) Consent to the attempt will be a defense if it would be a defense in case the crime were completed, but not otherwise. 56. All attempts to commit a crime, whether the crime be a felony or a misdemeanor, and whether it be such at common law or by statute, are misdemeanors at common law.1 EXCEPTIONS-(a) In some states, attempts are entirely regulated by statute. (b) In most states, some attempts are felonies by statute. (c) Attempts to commit certain classes of statutory misdemeanors are not indictable. The law does not punish a mere intent to commit a crime, unaccompanied by any overt act. Thus, merely being in possession of dies with intent to make counterfeit coin is not a crime at common law,2 nor is the having of possession of forged instruments with intent to pass or utter them.3 The law does, however, punish the combination of intent and act, though they may not amount to the actual commission of the crime intended. Thus, when dies are procured with intent to counterfeit, or indecent prints are procured with intent to publish them, an indictable offense is committed, the procuring being an overt act. 5 There is a marked distinction between "attempt" and "in 1 Rex v. Roderick, 7 Car. & P. 795; Com. v. Barlow, 4 Mass. 439; Com. v. Kingsbury, 5 Mass. 106; Randolph v. Com., 6 Serg. & R. (Pa.) 398; Smith v. Com., 54 Pa. 209, 93 Am. Dec. 686; State v. Jordan, 75 N. C. 27. 2 Rex v. Heath, Russ. & Ry. 184; Rex v. Stewart, Id. 287. But see Rex v. Sutton, cas. temp. Hardw. 370. 8 Com. v. Morse, 2 Mass. 138. This has been to some extent changed by statute. State v. Vincent, 91 Mo. 662, 4 S. W. 430; State v. Allen, 116 Mo. 548, 22 S. W. 792. 4 Reg. v. Roberts, 7 Cox, Cr. Cas. 39; Rex v. Fuller, Russ. & Ry. 308; Dugdale v. Reg., 1 El. & Bl. 435. Dugdale v. Reg., 1 El. & Bl. 435; Reg. v. Dugdale, 1 Dears. Cr. Cas. 64; Reg. v. Fulton, Jebb, Cr. Cas. 48. And see Reg. v. McPherson, Dears. & B. Cr. Cas. 201. |