whenever an act is done with the intent to effect the criminal purpose, the act and intent together are brought within the domain of the criminal law as a criminal attempt.

The act becomes punishable because of the intent and purpose with which it was done.17

To be punishable as an attempt, an act must be a direct step towards the commission of a particular crime.

By this proposition it is intended to draw attention. to the principle that a mere preparatory act, not in itself wrongful or injurious, is not a criminal attempt. For instance, it has been said that merely starting towards the place where the crime is to be committed with the intention of committing the crime is not an attempt.18 And so merely buying matches or kerosene oil for the purpose of committing arson does not amount to an attempt to commit arson. A resident of Alaska who ordered whisky shipped to him in Alaska was held not guilty of an attempt to bring the whisky into Alaska.19 The reason is obvious. No force is set in motion which, if not interrupted, would accomplish the criminal purpose. In both cases there must be a further exercise of the will and a further act before any step is taken in the path directly leading to the commission of the crime. The cases under this head are not numerous, but the principle, as stated, is well established.

"Making a false key to the lock of a warehouse for the purpose of entering the warehouse and stealing the goods stored there is an attempt to commit statutory burglary. Griffin vs. State, 26 Ga., 493.

Reg. vs. Meredith, 8 C. & P., 589.

"U. S. vs. Stephens, 12 Fed. Rep., 52.

In every criminal attempt there is a definite intent to commit the certain specific crime charged to have been attempted.

This principle is best illustrated by the decisions in cases of assaults with intent to murder, assaults with intent to rob, assaults with intent to commit rape, and the like, which, as we have seen, are properly classified as attempts. Thus, on a charge of assault with intent to kill and murder A. there must exist an absolute purpose to kill A. A general intent to do A. serious bodily harm from which death may result is not sufficient. It is true that the intent may be deduced from the act done, but the intent cannot be presumed or ascribed as a matter of law; it must be ascertained and found as a specific fact. The doctrine that a man is presumed to intend the natural consequences of his act is a rule of evidence merely, and, unless a specific intent to kill exists, the crime is not committed.

In the next place the intent must be specifically to kill Therefore if the accused shoots at B., intend ing to kill him, and accidentally wounds A., this is not an assault with intent to kill, because the specific intent to kill. did not exist.20

And in the third place there must be an intent to murder-that is, the assault must be committed under such circumstances that if death had resulted the crime would have been murder. But it matters not whether it would have been murder in the first or second degree. If the crime would have been no more

But see contra Dunaway vs. People, 110 Ill., 333; 4 Am. Cr., 60; State vs. Gilman, 69 Me., 163; 3 Am. Cr., 15.

than manslaughter if death had resulted, the intent to commit murder did not and could not have existed.

So in assault with intent to commit rape, there must exist an absolute purpose to accomplish the crime by force and against the utmost resistance of the victim; that is, of course, where the woman is above the age of consent. Force is not a necessary ingredient of the crime of rape where the woman is under the age of consent, and in such a case it is not necessary that force should be intended. In such a case the mere intent to have carnal intercourse is a sufficient intent.

To solicit or counsel another to commit a crime is an attempt to commit the crime.

If the person solicited or counselled refuses, nevertheless a criminal attempt has been committed, because a persuasive force has been exercised, which, if it had the necessary and desired effect, would have accomplished the commission of the crime.21 If by means of counsel or persuasion one is actually induced to commit a crime, the one who counsels or persuades to its commission is guilty of the crime, as an accessory before the fact, or in some cases as principal.22

"Com. vs. Randolph, 146 Pa. St., 83; Com. vs. Flagg, 135 Mass., 545; State vs. Hayes, 78 Mo., 307; Griffin vs. State, 26 Ga., 493. The courts are not agreed upon this question and it may be said that the weight of authority is that a solicitation to commit adultery is not a criminal attempt. State vs. Butler, 8 Wash., 194; 9 Am. Cr., 661; Cox vs. People, 82 Ill., 191; 2 Am. Cr., 329. For a husband to attempt by threats of violence to induce another to ravish his wife is an attempt on the part of the husband to commit rape. State vs. Dowell, 106 N. C., 722; 8 Am. Cr., 681.

"Ante, p. 81.

One cannot be charged with an attempt to commit a crime where the facts are such that it is impossible, as matter of law, that the act done could accomplish a crime, or be one step in the chain of events by which a crime may be effected.

One may be guilty of a criminal attempt,although the facts are such that it is impossible, as matter of fact, that the crime intended could be committed. There is often difficulty in determining by which of these rules a given case must be determined.

An examination of some of the adjudicated cases will illustrate when it is impossible to commit a meditated crime as a matter of law, and when it is impossible as a matter of fact. In the former class of cases there can be no criminal attempt; in the latter class there may be.

In these courts in which the common law rule is adhered to, that there is a conclusive presumption that a boy under the age of fourteen years cannot be guilty of rape, it is agreed that he cannot be guilty of an attempt to commit rape,23 because, as a matter of law, it is impossible that he should attempt to commit the crime which the law conclusively presumes he cannot commit.24.

23 Reg. vs. Phillips, 8 C. & P., 736; People vs. Randolph, 2 Park. Cr., 213; State vs. Handy, 4 Harr. 506.

24These decisions must of course be limited to cases where it is charged that it was the purpose of the boy himself to have sexual connection with the woman assaulted. A boy under fourteen or even a woman may be guilty of rape where they are present at the crime and actively assist another person to accomplish the crime. In this manner á husband may be guilty of rape on his own wife. In some courts the common law presumption that a boy under fourteen cannot be guilty of rape is discarded. Com. vs. Green, 2 Pick., 331; Williams vs. State, 14 Ohio, 222. In other courts it remains as a prima facie presumption. Gordon vs. State, 93 Ga., 531; 9 Am. Cr., 444.

In a case where the prisoner intended, and seemed to attempt, to commit burglary, it was held that he was not guilty of the crime, because, since his confederate entered the premises with the consent of the proprietor, the law would not ascribe the guilt of burglary to the acts done, although this was due to a fact of which the respondent was ignorant.25

And in another case it was held that the accused was not guilty of the intent to defraud necessary in the crime of obtaining money by false pretenses, because, by reason of a rule of law of which the respondent was ignorant, it was in the particular case impossible to defraud.26 Neither of these two latter cases are cases of attempts, but both of them turn upon the point that the crime could not be accomplished, because, although the end sought was accomplished, it turned out not to be a crime.

It may be said, therefore, that if, when the purpose intended is accomplished, there is no crime, there is no attempt to commit a crime in trying to effect the purpose.

On the other hand, if the purpose intended, if accomplished, would amount to a crime, to do an act toward effecting the purpose is a criminal attempt, even though, by reason of some fact unknown, it is impossible to perpetrate the crime attempted.

The most familiar illustration of this proposition is found in the cases which hold that one is guilty of an attempt to commit larceny from the person who puts his hand into another's pocket with intent to steal,

"People vs. Collins, 55 Cal., 185, supra cit. 20State vs. Asher, 55 Ark., 427. Supra cit