should find defendant guilty, is prejudicially erroneous. The mere fact of going to a place with the intention of doing an unlawful act, will not of itself subject the party to the punishment denounced against such act, unless he also carries his intention into effect.3 And if one intends to do something which he believes a crime, but is mistaken in the facts, and what he does is not a crime, he is not guilty because of his intent; as where a man votes, believing himself under age, when in fact he is of age. If all one intends to do when done will constitute no crime, it can not be a crime for him with the same purpose to do part of what he intended.5

§ 126. Mere possession.-The mere possession of a thing is not, at common law, a sufficient overt act to constitute a crime. It is not a crime, at common law, knowingly to have in one's possession counterfeit money with intent to pass it as genuine; or knowingly to have in one's possession indecent prints with intent to publish them; or knowingly to have in one's possession forged bills with intent to pass them. There are, however, upon this point, a few discordant decisions, but these decisions do not represent the better view. An early English statute, however, makes possession, with criminal intent to pass, an indictable offense.10

9

§ 127. Receiving with intent to pass or use. The act of receiving a thing with criminal intent is something more 435; Beale's Cases 221, Derby's Cases 43; Rex v. Rosenstein, 2 Car. & P. 414.

3 Yoes v. State, 9 Ark. 42.

4 People v. Jaffe, 185 N. Y. 497, 78 N. E. 169, 9 L. R. A. (N. S.) 263, 7 Ann. Cas. 348; People v. Gardner, 144 N. Y. 119, 38 N. E. 1003, 28 L. R. A. 699, 43 Am. St. 741.

5 People v. Jaffe, 185 N. Y. 497, 78 N. E. 169, 9 L. R. A. (N. S.) 263; 7 Ann. Cas. 348.

6 Rex v. Heath, Russ. & Ry. 184; Rex v. Stewart, Russ. & Ry. 288.

7 Dugdale v. Reg., 1 El. & Bl.

than merely having possession of it with criminal intent. The former constitutes an indictable offense. Thus, receiving counterfeit money with criminal intent to pass it;11 or receiving dies with criminal intent to use them in making counterfeit money; 12 or receiving indecent prints with criminal intent to publish them,13 constitutes a crime. On the other hand, receiving a thing innocently, and subsequently forming a criminal intent to pass or use it, is not a crime at common law.

§ 128. Mere preparation to commit a crime.-Mere preparation to commit a crime is not a crime. The act "must be sufficient in amount of evil to demand judicial notice."1 It is sometimes difficult, however, to determine whether a particular act constitutes mere preparation or an indictable attempt. To constitute the latter it must be a cause of the thing contemplated rather than a mere condition which has been brought about as an aid in accomplishing the thing contemplated. Moreover, it must have proceeded far enough that the contemplated crime would have resulted had it not have been frustrated by extraneous circumstances. Between preparation for the attempt and the attempt itself, there is a wide difference. The preparation consists in devising or arranging the means or measures necessary for the commission of the offense; the attempt is the direct movement toward the commission after the preparations are made. 15 There may be acts done with some intent toward the commission of a crime which in themselves are not indictable attempts; such as purchasing a gun with a design to murder, or poison with the same intent. These preparations are considered mere conditions, not causes.16 So if accused

11 Rex v. Fuller, Russ. & Ry. 308.

12 Reg. v. Roberts, 7 Cox Cr. C. 39.

13 Dugdale v. Reg., 1 El. & Bl. 435, Beale's Cases 221, Derby's Cases 43

141 Bish. New Crim. L. (8th ed.), § 431.

15 People v. Murray, 14 Cal. 159. 16 Leverett v. State, 20 Ga. App. 748, 93 S. E. 232.

armed himself and went out intending to kill another, and met the other, who assaulted accused so that he had to kill him in self-defense, the previously formed intent of accused does not make him guilty of murder.17

It is plain that "if a man who has a wicked purpose in his heart does something entirely foreign in its nature from that purpose, he does not commit a criminal attempt to do the thing proposed. On the other hand, if he does what is exactly adapted to accomplish the evil meant, yet proceeds not far enough in the doing for the cognizance of the law, he still escapes punishment. Again, if he does a thing not completely, as the result discloses, adapted to accomplish the wrong, he may under some circumstances be punishable, while under other circumstances he may escape. And the difficulty is not a small one, to lay down rules readily applied, which shall guide the practitioner in respect of the circumstances in which the criminal attempt is sufficient."18

§ 129. Solicitation to commit a crime-In general.-Soliciting another to commit a crime is, in some cases at least, a sufficient overt act itself to constitute a crime.19 There is, however, conflict of authority as to the question whether solicitations to commit crimes are independently indictable; and also as to the question what must be the nature of the act solicited in order that the solicitation constitute a crime.

§ 130. Solicitation an independent offense.-Some courts hold that solicitation to commit a crime is indictable as a criminal attempt, and it has been said that mere soliciting the servant to steal is an attempt or endeavor to commit a crime. It also has been held that to solicit another to commit arson, offering him at the same time a match with which

17 State v. Rider, 90 Mo. 54, 1 S. W. 825, Derby's Cases 43.

181 Bish. Crim. L. (5th ed.), 433, § 739. See also Whart. Crim. L. (11th ed.), § 219.

19 Rex v. Higgins, 2 East 5, Derby's Cases 58; United States v. Galleanni, 245 Fed. 977.

to commit the act, constitutes a criminal attempt.20 There is some conflict of authority as to the question whether mere solicitation to commit a felony constitutes of itself an attempt to commit the felony, one of the leading text writers. on criminal law, Wharton, denying the proposition, while another standard text writer, Bishop, supports it.21

22

The weight of authority, as well as the better opinion, sustains the view that solicitation to commit a crime may constitute an independent offense, but not a criminal attempt.2 Thus, it has been held that the mere delivery of poison to a person, and soliciting him to place it in the spring of a certain party, is not "an attempt to administer poison."23 It also has been held that a mere effort by solicitation to produce a condition of mind essential to the crime of incest does not constitute an attempt to commit the crime;24 and that soliciting a female child under the age of consent, to submit to sexual intercourse, does not constitute an attempt to commit rape, as in such cases there must be an actual, not merely a constructive attempt in order to convict.25

§ 131. Solicitation-Wharton's view.-Wharton favors the view that solicitations to commit crimes are substantive offenses rather than criminal attempts. In discussing the question he says: "They certainly are (independent offenses) when they in themselves involve a breach of the public peace, as is the case with challenges to fight and seditious addresses. They are also indictable when their object is interference with public justice, as where a resistance

20 People v. Bush, 4 Hill (N. Y.) 133. See also State v. Bowers, 35 S. Car. 262, 14 S. E. 488, 15 L. R. A. 199, 28 Am. St. 847.

21 State v. Bowers, 35 S. Car. 262, 264, 14 S. E. 488, 15 L. R. A. 199, 28 Am. St. 847.

22 State v. Butler, 8 Wash. 194, 35 Pac. 1093, 25 L. R. A. 434, 40 Am. St. 900.

23 Stabler v. Commonwealth, 95 Pa. St. 318, 40 Am. Rep. 653.

24 Cox v. People, 82 Ill. 191; People v. Murray, 14 Cal. 159, Derby's Cases 64.

25 State v. Harney, 101 Mo. 470, 14 S. W. 657; Stabler v. Commonwealth, 95 Pa. St. 318, 40 Am. Rep. 653.

to the execution of a judicial' writ is counseled; or perjury is advised; or the escape of a prisoner is encouraged; or the corruption of a public officer or a witness is sought, or invited by the officer himself. They are indictable, also, when they are in themselves offenses against public decency, as is the case with solicitations to commit sodomy, and they are indictable also, when they constitute accessaryship before the fact. But * the better opinion is that, where the solicitation is not in itself a substantive offense, or where there has been no progress made toward the consummation of the independent offense attempted, the question whether the solicitation is by itself the subject of penal prosecution must be answered in the negative."26 This view is not in harmony with Bishop's, but it is undoubtedly correct.

§ 132. Solicitation to commit a felony.-As a general rule, both in England and in this country, solicitations to commit felonies are indictable offenses. Therefore to solicit another to commit murder;27 or arson;28 or sodomy;29 or adultery;30 or embezzlement;31 or to utter forged bank bills32 has been held to be an indictable offense. It was held that the solicitation itself was an act done. In a leading English case, in which the defendant was charged with soliciting a servant to steal his master's goods, his counsel argued that since "a mere intent to commit evil is not indictable, without an act done," no crime was charged in the indictment. The case has been generally followed both in England and this country.3

33

26 1 Whart. Crim. L. (11th ed.), § 218.

27 Commonwealth v. Randolph, 146 Pa. St. 83, 23 Atl. 388, 28 Am. St. 782, Beale's Cases 134.

28 Commonwealth v. Flagg, 135 Mass. 545.

29 Reg. v. Rowed, 2 G. & D. 518, 3 Q. B. 180; Rex v. Hickman, 1 Mood. Cr. C. 34.

30 State v. Avery, 7 Conn. 266,

18 Am. Dec. 105. See also Cole v. State (Okla. Cr.), 166 Pac. 1115.

31 Reg. v. Daniell, 6 Mod. 99; Reg. v. Quail, 4 Fost. & F. 1076. 32 State v. Davis, Tappan (Ohio) 139.

33 Rex v. Higgins, 2 East 5, Derby's Cases 58 See also Reg. v. Gregory, L. R., 1 C. C. 77, Derby's Cases 59.