People v. Moran

• Court: New York Court of Appeals
• Citation: 123 N.Y. 254,25 N.E. 412
• Parties: PEOPLE v. MORAN.
• Decision Date: 07 October 1890

123 N.Y. 254
25 N.E. 412

PEOPLE
v.
MORAN.

Court of Appeals of New York.

Oct. 7, 1890.

Appeal from supreme court, general term, first department.

[123 N.Y. 255]Wm. Travers Jerome, for the People.

W. H. Hewson, for respondent.

[123 N.Y. 256]RUGER, C. J.

The indictment in this case charged the defendant with an attempt to commit the crime of grand larceny in the second degree, by attepting to steal, take, and carry away from the person of an unknown woman, in the daytime, in the city and county of New York, certain goods, chattels, and personal property of a kind and description unknown, and of the alleged value of $10. It is claimed that the evidence did not show an attempt to commit a larceny. The crime of grand larceny in the second degree is defined, by section 531 of the Penal Code, among others, as that of a person who, under circumstances not amounting to grand larceny, steals and unlawfully appropriates property of any value, by taking the same from the person of another. A person who unsuccessfully attempts to commit a crime is made punishable by section 686 of the same Code. Section 34 defines an attempt as ‘an act done with intent to commit a crime, and tending but failing to effect its commission.’ I have thus brought together the several statutes bearing directly upon the question involved in this appeal, for the purpose of exhibiting the clearness and directness of the provisions affecting the point to be determined. The evidence given upon the trial showed that the defendant, accompanied by two associates, was observed passing around among the people gathered in a crowded market in New York, and was seen to thrust his hand into the pocket of a woman, and to withdraw it therefrom empty. Upon being approached by an officer, the defendant's companions attempted to escape, but the defendant was arrested. The woman became lost in the crowd, and was not discovered. Upon this evidence, the defendant's counsel asked the court to direct a verdict for the defendant upon the ground that the facts proved did not support the charge in the indictment. The request was denied, and the defendant excepted. This exception presents the only question raised in the case, and depends, for its solution, upon the construction to be given to section 34 of the Penal Code. The claim of the defendant is that the evidence did not show that the woman had any property in her pocket, which could be the [123 N.Y. 257]subject of larceny, and that an attempt to commit that crime could not be predicated of a condition which rendered its commission impossible. We are of the opinion that the evidence was sufficient to authorize the jury to find the accused guilty of the offense charged. It was plainly inferable from it that an intent to commit larceny from the person existed, and that the defendant did an act tending to effect its commission, although the effort failed. The language of the statute seems to us too plain to admit of doubt, and was intended to reach cases where an intent to commit a crime, and an effort to perpetrate it, although ineffectual, co-existed. Whenever the animo furandi exists, followed by acts apparently affording a prospect of success, and tending to render the commission of the crime effectual, the accused brings himself within the letter and intent of the statute. To constitute the crime charged, there must be a person from whom the property may be taken, an intent to take it against the will of the owner, and some

[25 N.E. 413]

act performed tending to accomplish it; and, when these things concur, the crime has, we think, been committed whether property could, in fact, have been stolen or not. In such cases the accused has done his utmost to effect the commission of the crime, but fails to accomplish it for some cause not previously apparent to him. The question whether an attempt to commit a crime has been made, is determinable solely by the condition of the actor's mind, and his conduct in the attempted consummation of his design. People v. Lawton, 56 Barb. 126; McDermott v. People, 5 Park. Crim. R. 104; Mackesey v. People, 6 Park. Crim. R. 114; 1 Amer. & Eng. Enc. Law, tit. ‘Attempt.’ So far as the thief is concerned, the felonious design and action are then just as complete as though the crime could have been, or, in fact, had been, committed, and the punishment of such offender is just as essential to the protection of the public, as of one whose designs have been successful. In the language of Bouvier's Law Dictionary, an ‘attempt’ is an endeavor to do an act carried beyond mere preparation, but falling short of execution. Some conflict has been observed in English authorities on this subject, and it [123 N.Y. 258]may be conceded that the weight of authority in that country is in favor of the proposition that a person cannot be convicted of an attempt to steal from the pocket, without proof that there was something in the pocket to steal. Reg. v. McPherson, (1857,) Dears. & B. Cr. Cas. 197; Reg. v. Collins, (1864,) Leigh & C. 471. The cases in England, however, are not uniform on this subject, and the principle involved in the cases above cited was, we think, otherwise stated in Reg. v. Goodall, 2 Cox, Crim. Cas. 41, where an attempt to commit a miscarriage was held to have been perpetrated on the body of a woman who was not at the time pregnant. See, also, Reg. v. Goodchild, 2 Car. & K. 293. In this country, however, the courts have uniformly refused to follow the cases of Reg. v. McPherson and Reg. v. Collins, and have adopted the more logical and rational rule that an attempt to commit a crime may be effectual, although, for some reason undiscoverable by the intending perpetrator, the crime, under existing circumstances, may be incapable of accomplishment. It would seem to be quite absurd to hold that an attempt to steal property from a person could not be predicated of a case where that person had secretly and suddenly removed the contents of one pocket to another and thus frustrated the attempt, or had so guarded his property that it could not be detached from his person. An attempt is made when an opportunity occurs, and the intending perpetrator has done some act tending to accomplish his purpose, although he is baffled by an unexpected obstacle or condition. Many efforts have been made to reach the North Pole,...