State v. Addor

• Decision Date: 22 February 1922
• Docket Number: (No. 401.)
• Court: North Carolina Supreme Court
• Parties: STATE . v. ADDOR et al.

110 S.E. 650

STATE .
v.
ADDOR et al.

(No. 401.)

Supreme Court of North Carolina.

Feb. 22, 1922.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, At-, tempt.]

Clark, C. J., dissenting.

Appeal from Superior Court, Moore County; Ferguson, Judge.

Prosecution by the State against Joseph Addor and another, for violation of the Prohibition Law. There was a verdict of not guilty, and the State appeals. Affirmed.

Criminal action determined on special verdict. The bill of indictment charged defendants in three counts: (1) With unlawful manufacturing of spirituous liquors; (2) unlawfully aiding in such manufacturing; (3) in an unlawful attempt to manufacture, and setting forth the overt act, etc. Upon the evidence the jury rendered the following special verdict:

"In the above-entitled cause, the jury rendered the following special verdict, to wit:

That defendants, on the —day of June.

1921, placed a bag of meal in a swamp of Drowning creek, Moore county, and at the same time and place nailed a coffee mill to a tree; that, on the 6th day of June, 1921, defendants placed two empty barrels in the swamp near said mill; that on June 7, 1921, the defendants were arrested on a public highway near said swamp by a deputy sheriff, and the defendants had some meal and bran; that, at the time of being arrested, defendants stated to the sheriff that they intended to make some liquor out of said meal and bran; that defendants did not have a still, but stated that some one had promised to let them have a still later; that defendants intended to make some liquor, if they could get a still, but they never got a still and never made any liquor. The above constitutes all the defendants did.

"If, upon the foregoing verdict, the court is of the opinion that defendants are guilty, then the jury, for their verdict, say the defendants are guilty; but if, upon said special verdict, the court is of the opinion that the defendants are not guilty, then the jury for their verdict say that the defendants are not guilty."

And on said special verdict, the court being of opinion that defendants were not guilty, the verdict is so entered, and state excepted and appealed, assigning for error that, on the facts established in the special verdict, defendants were guilty of an unlawful attempt, etc.

James S. Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

R. L. Burns, of Carthage, for appellees.

HOKE, J. [1] An attempt to commit a crime is an indictable offense, and, as a matter of form, and on proper evidence, in this jurisdiction, a conviction may be sustained on a bill of indictment making the specific charge, or one which charges a completed offense. State v. James Colvin, 90 N. C. 718; Consolidated Statutes, § 4640. In 3 American & English Encyclopedia, p. 250, an unlawful attempt to commit a crime is defined as an act done in part execution of a criminal design, amounting to more than

[110 S.E. 651]

mere preparation, but falling short of actual commission and possessing except for failure to consummate all the elements of the substantive crime; and in 16 Corpus Juris, at page 113, it is said that an unlawful attempt is compounded of two elements: First, the intent, to commit it; and, second, a direct, ineffectual act done towards its commission.

Speaking to the subject in 1 McClain's Criminal Law, at page 190, the author says:

"In a recent case, the court endeavors to cover the whole ground by saying that: 'An act must reach far enough towards the accomplishment of the desired result to amount to the commencement of the consummation, and must not be merely preparatory.' In other words, while it need not be the last proximate act to the consummation of the offense attempted to be perpetrated, it must approach sufficiently near to it to stand either as the first or some subsequent step in the direct movement towards the commission of the offense after the preparations are made. As said in another case: 'It need not be the last proximate act to the consummation of the crime in contemplation, but is sufficient if it be an act apparently adapted to produce the result intended. It must be something more than mere-preparation.' "

And to the same effect in 8 II. C. L. at page 279, it is said:

"In order to constitute an attempt, it is essential that the defendant, with the intent of committing the particular crime, should have done some overt act adapted to, approximating, and which in the ordinary and likely course of things would result in the commission thereof. Therefore the act must reach far enough towards the accomplishment of the desired result to amount to the commencement of the consummation. It must not be merely preparatory. In other words, while it need not be the last proximate act to the consummation of the offense attempted to be perpetrated, it must approach sufficiently near to it to stand either as the first or some subsequent step in a direct movement towards the commission of the offense after the preparations are made."

In the note to People v. Moran, 123 N. Y. 254, 25 N. E. 412, 10 L. R. A. 109, reported in 20 Am. St. Rep. at page 732, the editor quotes the definition appearing in Stephen's Digest of the Criminal Law, p. 33, as follows:

"An attempt to commit a crime is an act done with intent to commit that crime, and forming a part of a series of acts which would constitute its actual commission, if it were not interrupted"

—and the authorities cited in these textbooks of approved merit are in full support of the positions as stated by them (State v. John.Hurley, 79 Vt. 28, 64...