59 N.E. 55 (Mass. 1901)
The Commonwealth of Massachusetts indicted the defendant for an attempt to burn a building and goods therein with intent to injure the insurers of the same under Pub. Sts. c. 210, § 8.1 The substantive offense alleged to have been attempted is punished by Pub. Sts. c. 203, § 7.2 The defendant raised the defense that the overt acts alleged and proved did not amount to an offense.3 This defense was raised by a motion to quash the indictment and also by a request to the judge to direct a verdict for the defendant.4
Evidence presented at trial showed that the defendant had constructed and arranged combustibles in the building in such a way that they were ready to be lighted.5 If lighted, the combustibles would have set fire to the building and its contents.6 To be exact, the plan would have required a candle which was standing on a shelf six feet away to be placed on a piece of wood in a pan of turpentine and lighted.78 The defendant offered to pay a young man in his employment if he would go to the building, seemingly some miles from the place of the dialogue, and carry out the plan.9 This offer was refused.10
Later the defendant and the young man drove toward the building.11 When within a quarter of a mile the defendant said that he had changed his mind and drove away.12 This is as near as he ever came to accomplishing what he had in contemplation.13 The case came before the Supreme Judicial Court of Massachusetts on exceptions after the trial court proceedings.14 The court first considered the evidence apart from any question of pleading before addressing the indictment as actually drawn.15
Whether the defendant's acts of arranging combustibles and soliciting an employee to ignite them came near enough to the accomplishment of arson to constitute a punishable attempt?16
The statute does not punish every act done toward the commission of a crime, but only such acts done in an attempt to commit it.17 The most common types of an attempt are either an act which is intended to bring about the substantive crime and which sets in motion natural forces that would bring it about in the expected course of events but for an unforeseen interruption.18 Or an act which is intended to bring about the substantive crime and would bring it about but for a mistake of judgment in a matter of nice estimate or experiment.19 Obviously new considerations come in when further acts on the part of the person who has taken the first steps are necessary before the substantive crime can come to pass.20 In this class of cases there is still a chance that the would-be criminal may change his mind.21 That an overt act although coupled with an intent to commit the crime commonly is not punishable if further acts are contemplated as needful, is expressed in the familiar rule that preparation is not an attempt.22 But some preparations may amount to an attempt.23 It is a question of degree.24 If the preparation comes very near to the accomplishment of the act, the intent to complete it renders the crime so probable that the act will be a misdemeanor although there is still a locus penitentiae in the need of a further exertion of the will to complete the crime.25
Yes. The court assumed that there was evidence of a crime and perhaps of an attempt under the cases cited.26 The defendant had constructed and arranged combustibles in the building in such a way that they were ready to be lighted, and if lighted would have set fire to the building and its contents.27 The plan would have required a candle which was standing on a shelf six feet away to be placed on a piece of wood in a pan of turpentine and lighted.
The defendant offered to pay a young man in his employment if he would go to the building and carry out the plan.28 Later the defendant and the young man drove toward the building, but when within a quarter of a mile the defendant said that he had changed his mind and drove away.29 This is as near as he ever came to accomplishing what he had in contemplation. Under the cases such as Regina v. Taylor where lighting a match with intent to set fire to a haystack was held an attempt.30
Under Commonwealth v. McLaughlin where getting into a stall with a poisoned potato intending to give it to a horse was held an attempt, the acts here come near enough.31
The defendant's acts of arranging combustibles and soliciting an employee to ignite them came near enough to the accomplishment of arson to constitute a punishable attempt.32
Whether the indictment as drawn sufficiently alleged the specific overt acts, including any solicitation, to support a conviction for the attempt?33
If the offence is to be made out by showing a preparation of the room and a solicitation of some one else to set the fire, which solicitation if successful would have been the defendant’s last act, the solicitation must be alleged as one of the overt acts.34 It was admissible in evidence on the pleadings as they stood to show the defendant’s intent, but it could not be relied on as an overt act unless set out.35 The necessity that the overt acts should be alleged has been taken for granted in our practice and decisions.36
No. The indictment did not allege the solicitation as one of the overt acts.37 A mere collection and preparation of materials in a room for the purpose of setting fire to them, unaccompanied by any present intent to set the fire, would be too remote.38 If the accused intended to rely upon his own hands to the end, he must be shown to have had a present intent to accomplish the crime without much delay.39 He must have had this intent at a time and place where he was able to carry it out.40
On the other hand, if the offence is to be made out by showing a preparation of the room and a solicitation of some one else to set the fire, the solicitation must be alleged as one of the overt acts.41 Since the solicitation was not alleged, the exceptions must be sustained.42
The indictment as drawn did not sufficiently allege the specific overt acts, including any solicitation, to support a conviction for the attempt.43