State v. . Addor

CLARK, C. J., dissenting. 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, in June, 1921, placed a (688) 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 6 June, 1921, defendants placed two empty barrels in the swamp near said mill; that on 7 June, 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. *Page 736 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 complete offense. S. v. Colvin, 90 N.C. 718; C. S. 4640. In 3 A. E., 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 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 p. 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 1st McClain's Criminal Law, at p. 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.' (689) 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 8th R. C. L. at p. 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." *Page 737 In the note to People v. Moran, 123 N.Y. 254, reported in 20 A.S.R. at p. 732, the editor quotes the definition appearing in Steven'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 text-books of approved merit are in full support of the positions as stated by them. S. v. JohnHurley, 79 Vt. 28; Groves v. State of Georgia, 116 Ga. 516; State v. Doran,99 Me. 329; People v. Murray, 14 Cal. 159; Hicks v. Commonwealth,86 Va. 223, and the cases in our own State are in full accord with these well considered decisions. S. v. Hewett, 158 N.C. 627;S. v. Hefner, 129 N.C. 548, S. v. Colvin,supra. In Hewett's case, Brown, J., delivering the opinion, quotes with approval the definitions appearing in 1 Bishop's Criminal Law, sec. 728, that "an attempt is an intent to do a particular criminal thing, combined with an act which falls short of the thing intended, and in Burwell's Law Dictionary and Bouvier's Law Dictionary, describing an attempt as "an endeavor to commit an offense, carried beyond mere preparation to commit it, but falling short of actual commission." In Statev. Doran, 99 Me. 329, reported also in 105 A.S.R. 278, it was held that "to constitute an attempt to commit a crime there must be something more than mere intent or preparation. There must be some act moving directly towards the commission of the offense after the (690) preparations are made." And in People v. Murray, supra, Chief Justice Field, delivering the opinion, said: "Between preparation for the attempt and the attempt itself there is a wide difference. The preparations consist in devising or arranging the means or measures necessary for the commission of the offense. The attempt is the direct movement towards the commission after the preparations are made." All of the authorities on this subject are to the effect that the overt act required as an essential feature of the crime must go beyond mere preparation and be at least apparently possible to the reasonable apprehension of the party charged. 12 Cyc., p. 180. True, the cases hold that an impossibility to presently commit the crime, unknown to the defendant, may not be allowed to affect the question of his guilt, but where it is clear that the perpetration of the crime is impossible and that is known to the party, there can be no indictable attempt. The position is very well stated in the citation to Cyc., as follows: "To constitute an indictable attempt to commit a crime, its consummation must be apparently possible, or in other words there must be an apparent ability to commit it. If the means employed are so clearly unsuitable that it is obvious that the crime cannot be committed, the attempt is not *Page 738 indictable. On the other hand, the apparent possibility is all that is required. If there is an apparent ability to commit the crime in the way attempted, the attempt is indictable, although, unknown to the party making the attempt, the crime cannot be committed because the means employed are in fact unsuitable." Applying these principles to the facts as presented in the special verdict, it is clear in our opinion that the acts of the defendant as there established were only in preparation, and did not amount to overt acts in the attempted commission of the crime. Within the language and purport of the Virginia decision of Hicks v. Commonwealth, 86 Va. 223, the alleged attempt did not amount to a direct ineffectual act towards the present manufacture of spirituous liquors, to a "commencement of the consummation," but, as indicated in the opinion of Chief Justice Fields in the California case, the said acts consisted only in "devising or arranging the means or measures necessary to the commission of the offense." Moreover, it is established as a fact by the special verdict that defendants at the time had never made any liquor, did not have a still, and had not been able to procure one, thus showing that the perpetration of the alleged crime was at the time obviously impossible. There is nothing in our disposition of the present appeal that is in any way inconsistent with the cases of S. v. Blackwell, 180 N.C. 733, and S. v. Perry, 179 N.C. 718. In those cases the question of the (691) unlawful manufacture of liquor was left to the jury on the testimony, and defendants were convicted, the Court holding in both cases that the facts in evidence permitted the inference of guilt. But here the fact of any unlawful manufacture is negatived by the special verdict which finds as stated that no spirituous liquors had ever been made by defendant, and that while defendants intended to make the liquor if they could get a still, they did not have one and had not been able to get one. We concur in the ruling of the court below that no unlawful attempt to commit the crime has been established, and this will be certified that defendants be discharged. Affirmed.