Bucklew v. State, 44616

• Decision Date: 22 January 1968
• Docket Number: No. 44616,44616
• Citation: 206 So.2d 200
• Parties: Henry BUCKLEW v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 200

206 So.2d 200

Henry BUCKLEW v. STATE of Mississippi.

No. 44616.

Supreme Court of Mississippi.

Jan. 22, 1968.

Quitman Ross, Laurel, for appellant.

Joe T. Patterson, Atty. Gen., by Guy N. Rogers, Asst. Atty. Gen., Jackson, for appellee.

RODGERS, Justice:

This is an appeal from a judgment of conviction of attempted embezzlement from the Circuit Court of Jones County, Mississippi, wherein the mayor of the City of Laurel was fined in the amount of $816.05. The testimony in this case shows that sometime in the summer of 1965 Henry Bucklew, the mayor of Laurel, Mississippi, called a representative of Kelly-Lowe Dodge, Inc., an automobile repair shop, advised them that he had a jeep which belonged to the Pest Control Department of the City of Laurel, and asked whether or not they could repair it. Kelly-Lowe Dodge, Inc. repaired the jeep and purchased tires and chains for it. The repair bill, including labor and parts, amounted to $816.05.

Kelly-Lowe submitted its bill by mail to the City of Laurel about November 25, the City and took it to the mayor. The mayor advised the clerk that he would the City and took it to the major. The major advised the clerk that he would 'take care of it.' Some time later, John Jacobs, who was in charge of what is known as the Pest Control Department of the City of Laurel, was requested by the mayor to sign the bill which had been submitted by Kelly-Lowe. In the meantime, the city clerk had requested a copy of this bill from the repair shop 'for the files' of the City of Laurel. Later, the mayor was indicted by the grand jury of Jones County for the crime of an attempt to commit embezzlement. The bill for repairs to the jeep was never finally submitted to the City for payment by the mayor or anyone else. The testimony shows that the city clerk had an understanding with the mayor and city commissioners that before bills could be paid by the City it was necessary for the heads of the various departments to approve the payment before they were submitted to the clerk for payment. Thereafter, the mayor or commissioner to whom the bill had been referred would indicate his approval of the bill by signing his name to the approval sheet attached to the bill. The city clerk would then prepare a check in payment of the amount indicated and return it to the moyor for his signature. Before the check could be cashed it required the signature of the clerk. In the absence of the mayor it was necessary for one of the commissioners to sign checks with the clerk before they could be paid.

The testimony showing the approval of Mr. Jacobs by affixing his signature on the bill is the only testimony showing the intention of the mayor after the bill had been turned over to him by the clerk, except that an auditor testified that the mayor told him that he approved the bill by mistake. The original bill was not offered in evidence.

The defendant, Henry Bucklew, was indicted under section 2122, Mississippi Code 1942 Annotated (1956).

When the State had concluded its testimony, the defendant made a motion to exclude the evidence offered on behalf of the State and requested the court to direct the jury to find the defendant not guilty, for the reason that the State had not shown that the defendant had committed an overt act toward the commission of the crime of embezzlement as charged in the indictment. The court overruled this motion and defendant rested his case, without introducing testimony in his behalf and without having testified in his own defense. The issue is, therefore, clearly defined: Did the State show that the defendant committed an overt act in an attempt to commit the crime of embezzlement?

Under the general law it has been pointed out that an attempt to commit a crime consists of three elements: (1) an intent to commit a particular crime; (2) a direct ineffectual act done toward its commission; and (3) the failure to consummate its commission. 22 C.J.S. Criminal Law § 75(1) (1961). Our statutory law requires proof of an overt act in order to sustain a conviction of an attempt to commit a crime.

The pertinent part of section 2017, Mississippi Code 1942 Annotated (1956) is as follows:

'Every person who shall design and endeavor to commit an offense, and shall do any overt act toward the commission thereof, but shall fail therein, or shall be prevented from committing the same, on conviction thereof, * * *.'

This Court is in accord with the general law as to the essential elements of the crime of 'attempt to commit a crime.' We have held that the law requires that the State establish criminal intent as an element to the crime of attempt 'to commit a crime.' Miller v. State, 130 Miss. 730, 95 So. 83 (1922); Cunningham v. State, 49 Miss. 685 (1874); Stapleton v. State, 130 Miss. 737, 95 So. 86 (1922); Jones v. State, 172 Miss. 597, 161 So. 143 (1935); Bullock v. State, 195 Miss. 340, 15 So.2d 285 (1943); McGuire v. State, 231 Miss. 375, 95 So.2d 537 (1957); Prisock v. State, 244 Miss. 408, 141 So.2d 711 (1962).

We have also held that there must be an overt act done toward the commission of the crime in order to establish the crime of 'attempt to commit a crime.' Cunningham v. State, supra; Stockes v. States, 92 Miss. 415, 46 So. 627 (1908); Dill v. State, 149 Miss. 167, 115 So. 203 (1928); State v. Lindsey, 202 Miss. 896, 32 So.2d 876 (1947); State v. Wade, 102 Miss. 711, 59 So. 880 (1912); State v. Fitzgerald, 151 Miss. 229, 117 So. 517 (1928).

We have no trouble with the third element, since the Legislature has provided for this element by enactment of section 2018, Mississippi Code 1942 Annotated (1956). This law prevents prosecution for the 'attempt to commit an offense, when it shall appear that the crime intended or the offense attempted was perpetrated * * *.'

We have held that the mere intention to commit a crime is not punishable. Dill v. State, supra. The intention must therefore be coupled with an overt act. But, what is meant by the requirement that the State prove 'an overt act'? The textwriters point out in 22 C.J.S. Criminal Law § 75(2) (1961) at 232 that:

'In a considerable number of cases it has been said the act must be such as will apparently result, in the usual and natural course of events if not hindered by extraneous causes, in the commission of the crime itself, and an act apparently adapted to produce the intended result is sufficient to constitute the overt act essential to an attempt.'

It is said by the textwriter of 1 Wharton, Criminal Law and Procedure § 74 (1957):

'To constitute an attempt, there must be an act directed to the commission of an intended crime, which act goes beyond mere preparation and is apparently suited for the intended purpose, although it may be any act in the series of acts which would ordinarily result in the commission of the crime, and need not be the last or final step in the sequence. Whether an act has passed beyond the stage of preparation and constitutes an attempt is a question of degree.

'It is also variously stated that an attempt is a direct movement toward the commission of the crime after the preparations have been made; that the defendant's act must be a direct, unequivocal act toward the commission of the intended crime; that his acts must have progressed to the extent of giving him power to commit the offense and nothing but an interruption prevented the commission of the offense; that the defendant's act must reach far enough toward the accomplishment of his intention to commit the offense to amount to a commencement of the...