91 Mass. 274 | Mass. | 1864
The St. of 1863, c. 91, required an actual enlisting of a person in the military service without authority of the national or the state government, to constitute a crime. Commonwealth v. White, ante, 195. But the St. of 1863, c. 252, besides reenacting the earlier statute, also made it criminal “ to entice or solicit any person to leave the Commonwealth for the purpose of entering upon or enlisting, or offering themselves as substitutes for drafted persons in any military service elsewhere.” The manifest object of the legislature in adding this provision was to avoid the difficulty of proving that the person solicited or enticed away had actually entered the military service, or offered himself as a substitute for a drafted person elsewhere; and to make the act of enticing or soliciting in this commonwealth, with the prohibited purpose, a crime of itself, without regard to the fact whether that purpose was or could be in fact carried out.
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. Upon this principle, on an indictment under a statute against passing or disposing of forged bank notes with intent to defraud, it has been held no defence that those to whom the notes were passed knew them to be forged, and therefore could not be defrauded- Rex v. Holden, Russ. & Ry. 154. Commonwealth v. Starr, 4 Allen, 301. So, a statute making it felony to administer poison or use any instrument “ with intent to procure the miscarriage of any woman,” extends to a case in which the woman is not pregnant. Regina v. Goodchild, 2 Car. & Kirw. 293. And under a statute for the
In the case before us, the indictment alleges, the evidence showed, and the jury have found, that the defendant enticed and solicited a citizen of this commonwealth to leave it for the purpose of enlisting elsewhere. The act of enticing him away and the unlawful purpose being alleged and proved, and there being no evidence that his unfitness for military service was manifest or known at the time of this unlawful act, the fact that he had previously been or afterwards was rejected by the military authorities did not diminish the defendant’s crime, under the statute on which the indictment was framed.
There is nothing in the nature of this offence to take it out of the general rule, that the exact time need not be proved as laid in the indictment. Exceptions overruled.
