22 Ga. App. 613 | Ga. Ct. App. | 1918
Under section 1066 of the Penal Code (1910), an indictment is insufficient and lacking in definiteness which charges that the defendant “did then and there make an attempt
As the proof must show that some act was done toward the commission of the attempt, it is necessary that the act constituting the attempt be alleged. This is necessary in order that, the court may determine whether the indictment really shows- an “attempt” or merely preparation to commit the crime. “If the facts charged in the indictment to have been done amount to an attempt, the offense of attempt to commit the crime is sufficiently charged.” Griffin v. State, 26 Ga. 493, 946. There are numerous decisions to the effect that mere preparation, without doing an overt act, does not constitute an attempt. “Between the 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 towards the 'commission after the preparations are made.” People v. Murray, 14 Cal. 159; Jackson v. State, 103 Ga. 417 (30 S. E. 251); Brown v. State, 95 Ga. 481 (20 S. E. 495); Moss v. State, 6 Ga. App. 524 (65 S. E. 300). “An attempt to commit a crime is an act done with intent to commit that crime, and tending to, but falling short of, its commission.” Clark’s Criminal Law (2d ed.), 126. “An attempt to commit crime is an act done with intent to commit it, beyond mere preparation, but falling short of its actual commission.” 12 Cyc. 177.
In the ease of Griffin v. State, supra, the same question is raised as in the instant case, and while the act constituting the attempt was, in the opinion of the writer, rather in the nature of preparation, still the indictment does allege two acts which the accused did in making the attempt, and the Supreme Court in its opinion in that ease recognized the fact that the indictment must allege some act. In the opinion Judge McDonald said: “The object, of the act under which the plaintiff in error is indicted is to punish intents to commit crime, if they are demonstrated by an- act,—for it declares that if a person shall attempt to commit a crime, and in such attempt shall do any act towards the commission of such offense, etc. The accused, according to the bill of indictment, conceived the-purpose of perpetrating the offense, and he did an act
From the above it is apparent that the trial judge erred in overruling the demurrer to the indictment, and that the .judgment must be Reversed.