People v. Moran

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

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.

Wm. Travers Jerome, for the People.

W. H. Hewson, for respondent.

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 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 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 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, but none have thus far succeeded, and many have grappled with the theory of perpetual motion without success,-possibly from the fact of its non-existence,-but can it be said in either case that the attempt was not made? It was well stated by Justice GRAY in Com. v. Jacobs, 9 Allen, 274, that ‘whenever the law makes one step towards the accomplishment of an unlawful object with the intent or purpose of accomplishing it criminal, a person taking that step, with that intent or purpose, and himself capable of doing every act on his part to accomplish that object, cannot protect himself from responsibility by showing that, by reason of some fact unknown to him at the time of his criminal attempt, it could not be fully carried into effect in the particular instance.’

The precise question here involved, under a similar statute, was considered in the case of Com. v. McDonald, 5 Cush. 365, where it was held that a person ‘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 offense.’ The case of People v. Jones, 46 Mich. 441, 9 N. W. Rep. 486, is also in point. There the accused stuck his hand into the outside cloak pocket of a woman, but there was nothing in the pocket. It was held that the defendant was well convicted of the crime of attempting to commit larceny. The same question, under circumstances almost identical with those existing in this case, arose in State v. Wilson, 30 Conn. 500, and the court there said ‘the perpetration of the crime was legally possible, the persons in a situation to do it, the intent clear, and the act adopted to the successful perpetration of it; and, whether there was or not property in the pocket, was an extrinsic fact, not essential to constitute the attempt.’ In Clark v. State, 86 Teen. 511, 8 S. W. Rep. 145, the question was also considered, and it was held, where the proof showed that the defendant had opened the money drawer of one Porbles, that a charge to the jury stating, if the defendant's ‘purpose was to steal when he opened the drawer, and his opening it was a part of the act designed by him for getting possession of the prosecutor's money, he would be guilty of an attempt to commit larceny, even though, at that particular time, there was no money in the cash drawer,’ was correct. The case of Reg. v. Collins was there considered, and disapproved. There are numerous other cases in this country, analogous to those above cited, in which it has been held that an intent to commit a crime might be predicated of a condition which rendered it impossible for the crime to have been in fact committed. Among them is the case of State v. Beal, 37 Ohio St. 108, where the defendant was indicted for the crime of burglariously entering into the warehouse of William Houts, with intent to steal, and take away his property. It was held, the burglarious entrance having been shown, that the defendant could be convicted, although it was proven that the warehouse did not contain any property capable of being stolen. In Rogers v. Com., 5 Serg. & R. 462, the indictment charged that the defendant, with intent feloniously to steal and carry away the money of one Earle from his person, put his hand into the pocket of the coat of said Earle. The court, overruling certain exceptions to the indictment, said: ‘The intention of the person was to pick the pocket of Earle of whatever he found in it, and, although there might be nothing in the pocket, the intention to steal is the same. He had no particular intention to steal any particular article, for...