rectly, or inferentially by their verdict, that there was any property in the pocket of the prosecutrix, we think that this conviction must be quashed.1 Conviction quashed.

COMMONWEALTH v. GREEN.

SUPREME JUDICIAL COURT OF MASSACHUSETTS.

[Reported 2 Pickering, 380.]

1824.

AT May term, 1823, in the county of Hampden, the prisoner, an infant under the age of fourteen years, was convicted of an assault with intent to commit a rape.

And now, upon a motion in arrest of judgment, E. H. Mills and G. Bliss, junior, for the prisoner, contended that it was clear from all the authorities that an infant under that age is presumed by law to be unable to commit a rape (1 Haile's P. C. 630; 4 Bl. Com. 212; 1 East's P. C. 446, § 8); and in 3 Chit. Cr. L. 811, it is said that no evidence will be admitted to implicate him as the actual ravisher, though he may be guilty as an abettor. It would be absurd then to say that he may be indicted for an attempt to do what the law presumes him incapable of doing. Suppose an assault by a man upon another man dressed in woman's apparel; an indictment charging him with an assault with intent to commit a rape could not be sustained. So a female could not be indicted for an assault with such an intent. An indictment for throwing oil of vitriol with intent to burn a person's clothes might be good; but not so of an indictment for throwing water with such an intent. If a woman were indicted for petty treason, and it should appear that she had not been married, she could not be convicted. A man cannot be convicted of a rape on his own wife, nor of attempting to commit one, because the matrimonial consent cannot be retracted. In like manner the prisoner cannot be convicted of a rape, nor of an attempt to commit one, because the law presumes him to be incapable. To constitute an offence there must be an intent coupled with an act, and likewise a legal ability to do the thing attempted. In regard to the physical powers of the prisoner the court cannot go into the inquiry whether here is a particular exception

1 This decision was overruled by Reg. v. Ring, 17 Cox, C. C. 491.

“If a statute simply made it a felony to attempt to kill any human being, or to conspire to do so, an attempt by means of witchcraft, or a conspiracy to kill by means of charms and incantations, would not be an offense within such a statute. The poverty of language compels one to say, 'an attempt to kill by way of witchcraft,' but such an attempt is really no attempt at all to kill. It is true the sin or wickedness may be as great as an attempt or conspiracy by competent means; but human laws are made, not to punish sin, but to prevent crime and mischief."-POLLOCK, C. B., in Att'y-Gen'l v. Sillem, 2 H. & C. 431, 525.- ED.

contrary to the general rule of law. We do not contend that the prisoner may not be punished for the assault, but only that he is not indictable for an assault with the intent alleged in this indictment.

Davis, Solicitor-General, for the Commonwealth. The maxim that an infant under the age of fourteen years is presumed unable to commit a rape, is indeed found in the books. It originated in ancient times, and it requires to be subjected to the examination of a modern judicial tribunal. That no evidence shall be admitted to impeach this presumption is the dictum of one writer only, and it cannot hold universally. In some cases an infant under fourteen years is physically able, and there was evidence of it in the present case; it would be absurd then by such presumption to shut out the fact itself. The maxim is founded on the principle that there must be both penetration and emission; but this idea is now exploded. 1 Hale's P. C. 628; 3 Inst. 59, 60; 1 East's P. C. 436, § 3; 1 Russell on Crimes, 805. In Pennsylvania v. Sullivan, Addis. 143, it is said that the essence of the crime is the violence to the person and feelings of the woman. An injury to the feelings may be inflicted by a person under fourteen years as much as by one over that age; and where there is a guilty intention in the perpetrator of the injury, there seems to be no good reason for exonerating him from punishment on account of his physical incapacity.

Mills, in reply, said the law was not clear as to what facts are necessary to constitute the crime of rape, and in addition to the authorties before cited to this point, he referred to 12 Co. 37; 1 Hawk. P. C. c. 41, § 3.

BY THE COURT (PARKER, C. J., dissenting). The court are of opinion that the verdict must stand and judgment be rendered on it. The law which regards infants under fourteen as incapable of committing rape was established in favorem vitæ, and ought not to be applied by analogy to an inferior offence, the commission of which is not punished with death. A minor of fourteen years of age, or just under, is capable of that kind of force which constitutes an essential ingredient in the crime of rape, and he may make an assault with an intent to commit that crime, although by an artificial rule he is not punishable for the crime itself. An intention to do an act does not necessarily imply an ability to do it; as a man who is emasculated may use force with intent to ravish, although possibly, if a certain effect should be now, as it was formerly, held essential to the crime, he could not be convicted of a rape. Females might be in as much danger from precocious boys as from men, if such boys are to escape with impunity from felonious assaults, as well as from the felony itself.1 Motion overruled.

1 Contra, State v. Sam, Winston, 300 (attempt); Rex v. Eldershaw, 3 C. & P. 396; Reg. v. Philips, 8 C. & P. 736; State v. Handy, 4 Harr. 566 (assaults with intent).

COMMONWEALTH v. McDONALD.

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1850.

[Reported 5 Cushing, 365.]

THE defendant was indicted in the municipal court, and there tried before Mellen, J., for an attempt to commit a larceny from the person.

At the trial, there being no evidence, on the part of the prosecution, that the individual from whom the defendant was charged with an attempt to steal, had any property upon his person at the time of the alleged attempt, the defendant asked the judge to rule that the indictment could not be sustained.1

But the presiding judge ruled otherwise; and, the jury thereupon returning a verdict of guilty, the defendant excepted.

T. Willey, for the defendant.

Clifford, Attorney-General, for the Commonwealth.

FLETCHER, J. It was said, in argument for the defendant, that he could not be said to have attempted to steal the property of the unknown person, if there was no property to be stolen; and that therefore the indictment should have set out the property and shown the existence and nature of it by the proof. But it will appear at once, by a simple reference to the import of the term "attempt," that this propo sition cannot be maintained. To attempt is to make an effort to effect some object, to make a trial or experiment, to endeavor, to use exertion for some purpose. A man may make an attempt, an effort, a trial, to steal, by breaking open a trunk, and be disappointed in not finding the object of pursuit, and so not steal in fact. Still he remains nevertheless chargeable with the attempt, and with the act done towards the commission of the theft. So a man may make an attempt, an experiment, to pick a pocket, by thrusting his hand into it, and not succeed, because there happens to be nothing in the pocket. Still he has clearly made the attempt, and done the act towards the commission of the offence. So in the present case it is not probable that the defendant had in view any particular article, or had any knowledge whether or not there was anything in the pocket of the unknown person; but he attempted to pick the pocket of whatever he might find in it, if haply he should find anything; and the attempt, with the act done of thrusting his hand into the pocket, made the offence complete. It was an experiment, and an experiment which, in the language of the statute, failed; and it is as much within the terms and meaning of the statute, if it failed by reason of there being nothing in the pocket, as if it had failed from any other cause. The following cases fully support the view taken in this case, and I am not aware of any opposing authori

1 Only so much of the case as relates to this point is printed.

ties: King v. Higgins, 2 East, 5; People v. Bush, 4 Hill, 133; Josslyn v. Commonwealth, 6 Met. 236; Rogers v. Commonwealth, 5 S. & R. 463.

This decision is confined to the particular case under consideration, of an attempt to steal from the person; as there may perhaps be cases of attempts to steal where it would be necessary to set out the particular property attempted to be stolen, and the value. It not being necessary, in the present case, to set out in the indictment the property attempted to be stolen, the defendant's exception to the ruling of the judge, that there need be no evidence of any property, in the pocket of the unknown person, cannot, of course, be sustained, unless such evidence was made necessary by the allegations in the indictment.

The indictment alleges that the defendant attempted to steal from the unknown person his personal property then in his pocket and in his possession, neither the name nor the value of the property being known to the jurors. But this allegation is wholly unnecessary and immaterial, and may be stricken out; and the indictment will still remain sufficient, and contain all the allegations necessary to make out the offence against the defendant, and to warrant the conviction.

It not being necessary to allege that there was anything in the pocket of the unknown person, and as all that part of the indictment may be stricken out, the ruling of the court, that there need be no evidence of any property in the pocket of the person, was correct, and is fully supported by authority. Roscoe, Crim. Ev. 100.

Exceptions overruled.'

PEOPLE v. LEE KONG.

SUPREME COURT OF CALIFORNIA. 1892.

[Reported 95 California, 666.]*

GAROUTTE, J. Appellant was convicted of the crime of an assault with intent to commit murder, and now prosecutes this appeal, insisting that the evidence is insufficient to support the verdict.

The facts of the case are novel in the extreme, and when applied to principles of criminal law, a question arises for determination upon which counsel have cited no precedent.

A policeman secretly bored a hole in the roof of appellant's building, for the purpose of determining, by a view from that point of observation, whether or not he was conducting therein a gambling or lottery game. This fact came to the knowledge of appellant, and upon a certain night, believing that the policeman was upon the roof

1 Accord State v. Wilson, 30 Conn. 505; People v. Jones, 46 Mich. 441; People v. Moran, 123 N. Y. 254. And see Harvick v. State, 49 Ark. 514; Clark v. State, 86 Tenn. 511.

at the contemplated point of observation, he fired his pistol at the spot. He shot in no fright, and his aim was good, for the bullet passed through the roof at the point intended; but very fortunately for the officer of the law, at the moment of attack he was upon the roof at a different spot, viewing the scene of action, and thus no substantial results followed from appellant's fire.

The intent to kill is quite apparent from the evidence, and the single question is presented, Do the facts stated constitute an assault? Our criminal code defines an assault to be " an unlawful attempt, coupled with a present ability, to commit a violent injury upon the person of another." It will thus be seen that to constitute an assault two elements are necessary, and the absence of either is fatal to the charge. There must be an unlawful attempt, and there must be a present ability, to inflict the injury. In this case it is plain that the appellant made an attempt to kill the officer. It is equally plain that this attempt was an unlawful one. For the intent to kill was present in his mind at the time he fired the shot, and if death had been the result, under the facts as disclosed, there was no legal justification to avail him. The fact that the officer was not at the spot where the attacking party imagined he was, and where the bullet pierced the roof, renders it no less an attempt to kill. It is a well-settled principle of criminal law in this country, that where the criminal result of an attempt is not accomplished simply because of an obstruction in the way of the thing to be operated upon, and these facts are unknown to the aggressor at the time, the criminal attempt is committed. Thus an attempt to pick one's pocket or to steal from his person, when he has nothing in his pocket or on his person, completes the offence to the same degree as if he had money or other personal property which could be the subject of larceny. State v. Wilson, 30 Conn. 500; Commonwealth v. McDonald, 5 Cush. 365; People v. Jones, 46 Mich. 441; People v. Moran, 123 N. Y. 254.

Having determined that appellant was guilty of an unlawful attempt to kill, was such attempt coupled with the present ability to accomplish the deed? In the case of People v. Yslas, 27 Cal. 633, this court said: "The common-law definition of an assault is substantially the same as that found in our statute." Conceding such to be the fact, we cannot indorse those authorities, principally English, which hold that an assault may be committed by a person pointing in a threatening manner an unloaded gun at another; and this, too, regardless of the fact whether the party holding the gun thought it was loaded, or whether the party at whom it was menacingly pointed was thereby placed in great fear. Under our statute it cannot be said that a person with an unloaded gun would have the present ability to inflict an injury upon another many yards distant, however apparent and unlawful his attempt to do so might be. It was held, in the case of State v. Swails, 8 Ind. 524, that there was no assault to commit murder where A fires a gun at B at a distance of forty