7 N.Y.S. 582 | N.Y. Sup. Ct. | 1889
Lead Opinion
The evidence in this case showed that the defendant attempted to pick the pocket of a lady in the city of New York. There was no evidence whatever from which it could be inferred that the lady in question had any property in her pocket, and the appellant contends that it was necessary to prove that there was property in the pocket in question, in order to warrant a conviction on this indictment; and this is the question brought up by this appeal. In the consideration of this question, it may be proper to refer to the history of the law in reference to crimes such as it is claimed the defendant committed. By Rev. St., pt. 4, c. 1, tit. 7, § 3, it is provided that “every person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act towards the commission of such offense, but shall fail in the perpetration thereof, or shall be prevented or intercepted in executing the same, * * * shall * * * be punished,” etc. It has been held in the state of Massachusetts, under a similar statute, that, although it did not appear that there was any property to be stolen, yet, as the attempt to steal constituted the crime, and that, as an attempt is simply to make an effort to effect some object,—to make a trial or experiment,—therefore, the prisoner, by thrusting his hand into a pocket, makes an attempt to pick a pocket, although he does not succeed, because there happens to be nothing in the pocket. It, however, appears from the legislation in this state that such was not deemed to be the rule by our legislature, because, by chapter 508 of the Laws of 1860, after having provided by section 33 that picking pockets in the city and county of New York should be punished as grand larceny, although the value of the property taken should be less than $25, and that attempts under similar circumstances should be punished as for attempts to commit grand larceny, it provided by section 34 that “every person who shall lay hand upon the person of another, or upon the clothing upon the person of another, in said city and county, with intent to steal, as a pickpocket, under such circumstances as shall not amount to an attempt to rob or an attempt to commit larceny, shall be deemed guilty of an assault with intent to steal, and shall be punished as now provided by law for the punishment of misdemeanors. It shall not be necessary to allege or prove, in any prosecution for an offense under this section, any article intended to be stolen, or the value thereof, or the name of the person so assaulted.” This legislation clearly shows that it was the opinion of the legislature that an attempt to pick a pocket that had nothing in it was not a crime which might be punished as an attempt to commit grand larceny; because, by the provisions of the previous section, an attempt to pick a pocket in the city of New York might be punished as for an attempt to commit grand larceny. Now, if it had not been supposed that unless there was some proof of property no crime would be made out, what could have been the possible reason for the adoption of section 34, particularly in view of the last clause, which provides that for the establishment of the offense mentioned in that section it shall not be necessary for the prosecution to allege or prove any article intended to be stolen, or the value thereof, or the name of the person so assaultéd ? If an attempt was intended to be construed to mean simply the making of an effort to steal, as a pickpocket, there could have been no pos
This legislation contained in sections 33, 34, was attacked upon the ground that it was unconstitutional, in that the law was a local one, and did not comply with the requirements of the constitution, but it was maintained finally by the court of appeals; and it would appear that because of this attack the legislature passed, in 1862, chapter 374,' in which it incorporated this same legislation, making it embrace the whole state. This was the condition of the law at the time of the adoption of the Penal Code. The codifiers, in the spirit of improvement which seems to have guided them in the codification of the law, entirely changed the language of the definition which had long prevailed, under the Revised Statutes, as to what should be deemed an attempt to commit a crime; and it cannot be said that they have added anything in lucidity, although, perhaps, their definition is more brief. Section 34 of the Penal Code provides that “an act done with intent to commit a crime, and tending but failing to effect its commission, is an attempt to commit that crime.” We do not see that the section in question is any broader than the statute, nor have we any reason to believe that the legislature intended that it should have any greater scope. We have been unable to find, however, any provision in the Penal Code which embraces section 34 of chapter 508 of the Laws of 1860, or section 3 of chapter 374 of the Laws of 1862. And under section 725, notwithstanding the adoption of the Penal Code, those acts necessarily remained in existence, as such section provides that all acts defining and providing for the punishment of offenses, and not defined and, made punishable by the Code, should not be affected by the provisions in the Code, but were to be recognized as continuing in force, notwithstanding the provisions of the Code. The next legislation affecting this subject is to be found in chapter 410 of the Laws of 1882, where, by sections 1446, 1447, sections 33, 34, c. 508, Laws 1860, were re-enacted, and made part and parcel of the act of 1882,—another legislative interpretation of the previous enactments that it was still the opinion of the legislature that a person could not be convicted of an-attempt to commit grand larceny by proof of an attempt to pick a pocket, without proof of property.
Therefore, as the law stood after the adoption of the consolidation act, above mentioned, the proof in the case at bar was sufficient to convict the offender of the offense defined in section 34 of chapter 508 of the Laws of 1860, but was not sufficient to convict the offender of an attempt to commit grand larceny under section 33 of the Laws of 1860. In its definitions of larceny the Code has embraced the picking of pockets, making, however, the offense greater where it is committed in the night-time than where it is committed in the day, but both being felonies. Therefore, under the interpretation which must necessarily follow the legislative interpretation of its previous acts upon this subject, and the interpretation given to those acts even after the adoption of the Penal Code, we think it must be held that the evidence in this case did not authorize the conviction of the defendant of the crime of attempting to commit the crime of grand larceny in the second degree.
But we are told by the learned counsel for the people that, if this construction is sound, a known thief may pass around in a crowd, in full view of a detective officer, and place his hand in the pockets of different people, manifestly with the intention of picking pockets; because, by chapter 593 of the Laws of 1886, chapter 508 of the Laws of 1860, and chapter 374 of the Laws of 1862 have been repealed. The statement as to the repeal seems to be correct; and, if we had to depend upon the laws of 1860 and 1862 for the pun
We are of the opinion, therefore, that the defendant was wrongfully convicted in the case at bar, and that the only conviction which the evidence justified was for the crime specified in section 1447 of chapter 410 of the Laws of 1882. And, as the indictment is entirely defective upon this question, it would seem that the judgment must be reversed, and the prisoner discharged.
Concurrence Opinion
(concurring.) The question here is an interesting one. The logic of it is, in my judgment, with the view taken by the presiding justice. Independent of the statutes which he has considered, I find myself unable to resist the reasoning of the English judges in Reg. v. McPherson, Dears. & B. Cr. Cas. 197, and Reg. v. Collins, 9 Cox, Crim. Cas. 497. There are two cases in this country in conflict with these English decisions, namely, Com. v. McDonald, 5 Cush. 365, and People v. Jones, 46 Mich. 441, 9 N. W. Rep. 486. All the other cases cited by Mr. Jerome in his admirable brief (Rogers v. Com., 5 Serg. & R. 462; Josslyn v. Com., 6 Metc. 236; State v. Wilson, 30 Conn. 500; Kunkle v. State, 32 Ind. 220; Hamilton v. State, 36 Ind. 280; State v. Beal, 37 Ohio St. 108) referred to acts done with a particular intent, e. g., assault with intent to steal, breaking and entering with intent to steal, assault with intent to kill, assault with intent to rob, and so on. The Massachusetts and Michigan eases fail to distinguish between an act done with a particular intent and an attempt to commit a specific offense. In each case the cox-pus delicti differs. The placing of one’s hand in another’s pocket with intent to steal is one thing. The attempt to commit larceny in the second degree is quite another thing. The criminal intent is but one element in an attempt. There must also be an act tending to effect the commission of the defined crime. If the act merely tends to show guilty purpose, but does not tend to effect the commission of the particular crime, there is no attempt, in a legal sense. We must not go astray by following dictionary definitions of the word “attempt,” rather than legal. Larceny consists of the felonious taking of specific property. An attempt, therefore, to commit larceny necessarily contemplates an act tending to effect the felonious taking of specific property. There can be no such act without the subject. If that is wanting, the act can show nothing more than guilty purpose. The Massachusetts ease rests upon the popular meaning of the word “attempt,” and holds that a man attempts to commit a legally defined crime when he thinks he can, and acts upon the thought, though in fact no such legally defined crime as he contemplates is possible. The Michigan case proceeds upon a view of what the law should be, rather than what it is. This is the language of the court: “We fully concur in the views expressed by the Massachusetts court in Com. v. McDonald, 5 Cush. 365. We think this is not only the better, but the only, rule of law that could be adopted or recognized with safety to the rights of the public or of individuals.” The logic of Chief Justice Cockburn in the two English cases seems to me to be quite unanswerable. In Reg. v. McPherson he says: “The word ‘ attempt ’ clearly conveys with it the idea
able from intending to commit it. An attempt must be to do that which, if successful, would amount to the felony charged.” And in Reg. v. Collins, he says: “But, assuming that there was nothing in the pocket of the prosecutrix, the charge of attempting to‘commit larceny cannot be sustained. This-case is governed by that of Reg. v. McPherson, and we think that an attempt, to commit a felony can only be made out when, if no interruption had taken place, the attempt could have been carried out successfully, and the felony completed, of the attempt to commit which the party is charged. In this case,, if there is nothing in the pocket of the prosecutrix, in our opinion, the attempt to commit larceny cannot be established.” Nor is there any real conflict between these two cases and the earlier case of Reg. v. Goodall, 2 Cox, Crim. Cas. 40. There was no question in the latter case of an attempt. The-conviction was for the offense of using an instrument upon a woman, with intent to procure a miscarriage. The statutory crime consisted simply of the-act, done with the guilty intent. The prisoner there could not have been properly convicted of an attempt to commit a criminal abortion, for the reason that the subject of abortion was not present. The distinction seems clear,, and I am surprised at Mr. Bishop’s difficulty in reconciling the cases. 1 Crim. Law, (7th Ed.) § 741. Mr. Jerome’s illustrations are apt and plausible, but. hardly convincing. I agree that if we throw a stone at a piece of plate-glass,, and fail to bre’ak it because the glass is too strong, there is an attempt- to break plate-glass. The act tended to break it, and failed.» If, however, the stone were thrown at what appeared to be plate-glass but was not, the wrong-doer might be guilty of throwing with intent to break plate-glass; but, no matter what was in his mind, he could not be guilty of an attempt to break anything-save the shining object which he mistook for glass. So as to the scarecrow illustration. A man does not, in a legal sense, attempt to commit murder when, passing through a field in the dusk, he shoots at a dummy, believing it to be his enemy. He shoots with intent to kill his enemy; but that is not the crime of an attempt to commit murder. The statutes considered by the presiding justice plainly recognize this as the legislative view of attempts;. and the act making the laying on of hands, with intent to steal, an assault and a misdemeanor, must have been intended as a provision for conduct which otherwise would not be punishable at all,—either as an assault or as an attempt to commit larceny. If the Massachusetts and Michigan view of attempts should prevail, I fail to see how any case can ever be brought within this “assault with intent to steal” act. For, if that act is only applicable “under such circumstances as shall not amount to an attempt to commit larceny,” and if every laying of hands upon the person or clothing with the ungratified expectation of finding and taking property is larceny, then how can there ever be an assault with intent to steal? I think the presiding justice’s-view of these statutes is in harmony with their purpose and intent, and that, the acts themselves flow from the legislative construction of what in law constitutes an attempt to commit a defined crime. I therefore concur in the reversal.
Dissenting Opinion
(dissenting.) The indictment charged the defendant with attempting to commit the crime of grand larceny in the second degree. It was alleged that he attempted to steal the property of a woman, whose name was to the grand jury unknown, from her person; and, to prove the offense charged in the indictment, a police officer testified that at the Washington market he saw the defendant, and two other persons; that he had seen them before, and followed them, and saw that he went up against a lady, and shoved his hand in her side-pocket. He watched to see if he got anything, but he did not; and after that the arrest was made. Upon this evidence, which was
The legislation in this state providing for increased punishment for the crime of larceny from the person seems to have originated in chapter 508 of the Laws of 1860. This act related to the city of New York, and by section 33 it contained the substantial features of the present legislation defining the crime, and the attempt to commit it, of larceny from the person; for it made it the crime of grand larceny for the defendant to steal from the person of another, although the value of the property should be less than $25, and then it generally declared that attempts under similar circumstances might be punished as for attempts to commit grand larceny. It was further provided, by the next section of the act, that every person who should lay his hand upon the person of another, or upon the clothing upon that person, in the city or county of New York, with intent to steal as a pickpocket, under such circumstances as should not amount to an attempt to rob, or an attempt to commit larceny, should be deemed guilty of an assault with intent to steal, and
In People v. Bernardo, 1 N. Y. Crim. R. 245, it was held by the learned recorder of the city that the act of attempting to pick a pocket, containing nothing which could be stolen, was within this section of the Laws of 1862. But the decision in that case has given a more extended effect to the section of the act under which it was decided than was warranted by its languas"»for, as already observed, it did not include an attempt to commit the cri,-_
In this state of the law, with the evidence which was produced before the jury, they were authorized to reach the conclusion declared by their verdict, anc], the judgment from which the appeal has been taken should be affirmed.