
    Clark v. State.
    (Jackson.
    April 26th, 1888.)
    1. Indictment. Attempt to commit larceny. Stifficienl act.
    
    An indictment charging that defendant opened the cash-drawer oí prosecutor with intent to steal its contents, charges an act which constitutes an attempt to commit larceny. .
    Code cited : § 5379 (M. & V.); §4630 (T. & S.).
    2. Same. Same. Description.
    
    Description of goods, in an indictment for attempt to commit larceny, as “money, personal goods, and chattels” is sufficient. Less particularity of description is required in such case than in indictments for larceny.
    Cases cited and approved: Hayes 5?. State, 15 Lea, 64; State v. Montgomery, 7 Bax., 160.
    3. Criminal Law. Attempt to commit larceny. What constitutes.
    
    One who opens another’s cash-drawer, believing that it contains money or other valuables, and intending feloniously to steal its contents, is guilty of an attempt to commit larceny, although the drawer proved to be entirely empty.
    Cases cited and approved: I Den. C. G., 187; 5 S. & R., 463; 5 Cushv 365; 9 Allen, 274; 36 Ind., 280; 30 Conn., 500.
    Cited and disapproved: Leigh & C., 471.
    FROM FAYETTE.
    Appeal in error from Circuit Court of Payette County. T. J. Elippik, <T.
    C. A. Stainbacic for Clark.
    
      Attorney-General Pioklb for State.
   Folkes, J.

This is an indictment for attempt to commit a larceny. There was a conviction and sentence of one year in the penitentiary. i Motion for new trial and in arrest of judgment being made and overruled, the defendant has appealed in error.

The indictment charges that the said Clark, on the 23d day of November, 1887, in the county aforesaid, unlawfully and feloniously did enter into the business house of E. D. Peebles, and did then and there pull out the cash-drawer — where cash (money) was usually kept — of said Peebles, and feloniously attempted to take, steal, and carry away therefrom the money, personal goods, and chattels of said Peebles, then and there to be had and found in said business house, with the intent felo-niously to convert same to his, the said Clark’s, own use, and to deprive the true owner thereof. "Wherefore, etc., * * * . by the means aforesaid, thus feloniously did attempt to commit a felony — to wit, a larceny — against the peace and dignity,” etc.

The first error assigned is to the action of the Court in overruling a motion to quash. This motion was predicated upon the assumed failure of the indictment to specify what particular property, together with its value, ivas attempted to be stolen, and that it failed to allege to what extent defendant had gone in the attempt, and finally that the indictment fails to allege affirmatively that there was money or anything of value in the drawer susceptible of larceny.

The indictment was found under § 5379 (M. & V.) Code, which enacts that “if any person assault another with intent to commit, or otherioise attempt to commit, any'felony, or crime punishable by imprisonment in the penitentiary, where the punishment’ is not otherwise provided, he shall, on conviction,” etc.

It may he said to he well settled that under an indictment for an attempt to commit • a larceny, the goods upon which the attempt is made do not have to he described with the same particularity as would he required in an indictment for an accomplished larceny. This must he so in the very nature of things, for otherwise it would often he impossible to frame an indictment, in this class of cases, that would he effectual. -To illustrate : A party is charged with breaking into a room or a trunk, with intent to steal, where there are many different articles, all susceptible of larceny, and he is detected and arrested; how can it he alleged or charged, and how proven, what particular ai’ticles he intended to take?

All that is required is to- charge facts which make “an attempt” in point of law, and so identify the offense as to secure the defendant from a second prosecution therefor. Hayes v. State, 15 Lea, 64; State v. Montgomery, 7 Bax., 160.

This indictment, as will be seen, shows that the attempt was upon money and chattels in the cash-drawer of the prosecutor, and that the attempt had progressed to the point, or extent, of pulling out said drawer, with the felonious intent charged. This is sufficient. See Whart., Cr. L., §§ 190— 195.

There was, therefore, no error in the action of the Trial Judge in overruling the motion to quash.

The next error assigned is to the charge of the Court in this: “ If his purpose was to steal when he opened the drawer, and his opening it was a part of the act designed by him for getting possession of the prosecutor’s money, he would be guilty of an attempt to commit larceny, even though at that particular time there was no money in the cash-drawer.”

The proof shows that the defendant was detected by the prosecutor in the act of opening the cash-drawer of the latter’s store, having thrown himself across the counter for that pui’pose, he being alone in the front part of the store at the time — the prosecutor being in the rear waiting ón a customer, and being hidden from defendant’s view by a screen. When thus detected, and hallooed at by the prosecutor, the defendant hurriedly left the store.

The proof leaves it in doubt whether or not there was any money in this particular drawer at the time the attempt was made. It was early in the morning, and the drawer had been emptied the evening before.

The Court had stated to the jury that the State claimed that there was money in the drawer at the time of the alleged attempt, and that this was denied by the defendant, and that this was one of the questions of fact that they must determine, and that they must determine from the proof what was the purpose and intention of the prisoner in opening the cash-drawer; and if they found that the defendant believed there was money or other valuables in said drawer, and his .purpose in opening the same was to steal its contents, then he would be guilty of an attempt to commit larceny, whether there were money of other valuables in the drawer at the time or not.

There is no error in this record. The act averred and proven is sufficient.

The direct question here presented has never been passed upon by this Court, but it is by no means one without authority. It has received much discussion in the text-books, and in the adjudged cases from other courts.

The English cases are .conflicting. In Reg. v. Collins, Leigh & C., 471, it was held there could be no attempt to pick the pocket of a person who had no money at the time in her pocket; while in Reg. v. Goodhall, 1 Den. C. C., 187, it was held an attempt to produce a miscarriage could be committed . on a woman supposed to be, but not in fact, pregnant.

It appears to us that these cases cannot be reconciled, although Mr. • Heard, in his second edition of Leading Criminal Cases, Yol. II., pp. 482-483, lias attempted to do so. "We are constrained to agree with Mr. Bishop, that “these differing opinions must have sprung from opposite views in the two benches of Judges.” See note 1 to §741, Bishop’s Cr. L., (7th Ed.).

The American, cases seem to he uniform, or at least substantially so, for here the few conflicts are more apparent than real.

In Commonwealth v. Rogers, 5 S. & R., 463, the Pennsylvania Court held that an indictment for assault with intent to steal from the pocket is good, though it contains no setting out of the anything in the pocket to be stolen. Duncan, J., in delivering the opinion of the Court, said: “ The intention of the person was to pick the pocket of whatever he found in it; and although there might be nothing in the pocket, the intention to steal is the same.”

So in Massachusetts, under a statute differing in terms but the same in substance as our own herein above quoted, it was held that the indictment need not allege, and the p>rosecutor need not prove, that there was in the pocket anything which could be the subject of larceny. Commonwealth v. McDonald, 5 Cush., 365. See also Commonwealth v. Jacobs, 9 Allen, 274.

To the same effect is State v. Wilson, 30 Conn., 500.

So in Indiana it has been held that an assault on one with intent to rob him of his money may be committed, though he has no money in possession at the time. Hamilton v. State, 36 Ind., 280.

If an indictment for an attempt to steal the contents of a trunk or room -would not be good, where it transpired that there was nothing in the trunk or room, then it would seem to follow that the indictment, in case where there were goods in the trunk or room, would have to allege what particular goods the thief purposed to steal;, and if necessary to allege, it is necessary to prove, and how could this be proven where there was a variety of different goods, and the thief was arrested before he had laid hands upon any article?

Again: if a thief is caught with his hand in your pocket before he can grasp any of its contents, and it is found that the pocket contains both money and a watch, how can it be proven that he intended to steal both, and if not both, which?

And in the case last put, is there any more of an attempt to steal, the thief being ignorant of the presence of the watch or money, than there would be had he, with similar intent and ignorance, placed his hand in an empty pocket?

In each case there is the substantive and distinct offense as prescribed' by the statute. There is the criminal intent, and an effort made to carry out the intent to the point of completion, interrupted by some unforeseen impediment or lack outside of himself, special to the particular case and not open to observation, intervening to prevent success without the abandonment of effort or change of purpose on the part of the accused.

As said by Mr. Bishop: “It being accepted truth that the defendant deserves punishment by reason of his criminal intent, no one can seriously doubt that the protection of the public requires the punishment to be administered, equally whether, in the unseen depths of the pocket, etc., what was supposed to exist was really present or not.” 1 Bishop Or. L., Sec. 741.

The community suffers from the mere alarm of crime:

Again: “"Where the thing intended (attempted) is a crime, and what is done is of a sort to create alarm — in other words, excite apprehension that the evil intended will be. carried out — tire incipient act which the law of attempt takes cognizance of is in reason committed.” 1 Bishop, Or. L., Sec. 742.

The true legal reason for the conclusion reached is that the defendant, with the criminal intent, has performed an act tending to disturb the public repose. Ib., Sec. 744.

Mr. Wharton’s views on this, at one time, perplexing question are in accord with Mr. Bishop. See 1 Whart. Cr. L., Secs. 182, 183, 185, 186, and 192 (9th Ed.).

Let the judgment be affirmed.  