State v. Colvin
| Decision Date | 28 February 1884 |
| Citation | 90 N.C. 717 |
| Court | North Carolina Supreme Court |
| Parties | STATE v. JAMES COLVIN. |
INDICTMENT for an attempt to commit burglary, tried at January Term, 1884, of ROBESON Superior Court, before MacRae, J.
The defendant was tried upon a bill of indictment which is substantially as follows: The jurors, &c., present that the defendant, &c., about the hour of ten in the night of the same day, with force and arms, &c., did feloniously attempt to break and enter the dwelling-house of Edward Surles, with intent the goods and chattels, &c., feloniously to steal, take and carry away, against the form of the statute, &c.
The jury found the defendant guilty, and thereupon his counsel moved in arrest of judgment upon the ground that the bill fails to state any acts of the defendant in carrying out his alleged design. The court allowed the motion and the state solicitor appealed.
Attorney-General, for the State .
Messrs. French & Norment, for defendant .
The attempt to commit a crime is an indictable offence at common law. It, however, must be an attempt which stands in such connection with a projected deliberate crime that the crime, according to the usual and likely course of events, will follow from the attempt. 2 Whar. Cr. Law, §2705. And the same writer proceeds to say: “It is a familiar principle of criminal pleading, that where an act is only indictable under certain conditions, then these conditions must be stated in the indictment.”
In examining the authorities upon the subject, we find this principle of criminal pleading to obtain with unvarying uniformity. The only exceptions are when the indictments were drawn under statutes declaring what shall be indictable attempts.
In Virginia, an indictment simply averring that the defendant did attempt feloniously to maim, was held to be insufficient because it did not allege some act done by the defendant of such nature as to constitute an attempt to commit the offence mentioned in the indictment. Clark's case, 6 Gratt., 675.
In Connecticut, it was held that though an attempt to commit a crime involves both a guilty intent and an overt act, yet it is not enough to charge an attempt merely, but both the intent and the overt act must be specifically alleged, and the overt act must be such as is in itself adapted to produce the effect intended. State v. Wilson, 30 Conn., 500.
In Wharton's Precedents (386) the form of an indictment at common law for an attempt to break into a dwelling-house is given, which is...
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State v. Surles
...N.C. 687, 110 S.E. 650, 22 A.L.R. 219; State v. Hewett, 158 N.C. 627, 74 S.E. 356; State v. Hefner, 129 N.C. 548, 40 S.E. 2; State v. Colvin, 90 N.C. 717, 718; 16 C.J. 113; 22 C.J.S, Criminal Law, § 75. "An indictable attempt, therefore, consists of two important elements: (1) an intent to ......
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State v. Surles
...the reasoning of the majority of my brethren. An attempt to commit burglary is undoubtedly an indictable offense at common law. State v. Colvin, 90 N.C. 717. But there is no statute specifying in terms whether it is felony or a misdemeanor or how it is to be punished. In consequence, the de......
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Stapleton v. State
... ... consummation of the offense attempted." ... In ... support of this rule is cited State v ... Wilson, 30 Conn. 500; Com. v ... McLaughlin, 105 Mass. 460; Com. v ... Sherman, 105 Mass. 169; State v ... Utley, 82 N.C. 556; State v ... Colvin, 90 N.C. 717; Smith v ... Com., 54 Pa. 209, 93 Am. Dec. 686; Com. v ... Clark, 47 Va. 675, 6 Gratt. 675; Hicks v ... Com., 86 Va. 223, 9 S.E. 1024, 19 Am. St. Rep. 891; ... State v. Baller, 26 W.Va. 90, 53 Am. Rep ... In ... State v. Wilson, 30 Conn. 500, it is held ... that the ... ...