§ 137 Criminal Attempts
An attempt to commit an indictable offence is itself a crime. Every attempt is an act done with intent to commit the offence so attempted. The existence of this ulterior intent or motive is of the essence of the attempt. The act in itself may be perfectly innocent, but is deemed criminal by reason of the purpose with which it is done. To mix arsenic in food is in itself a perfectly lawful act, for it may be that the mixture is designed for the poisoning of rats. But if the purpose is to kill a human being, the act becomes by reason of this purpose the crime of attempted murder. In such cases a rational system of law cannot avoid considering the motive as material, for it is from the motive alone that the act derives all its mischievous tendency, and therefore its wrongful nature.
Although every attempt is an act done with intent to commit a crime, the converse is not true. Every act done with this intent is not an attempt, for it may be too remote from the completed offence to give rise to criminal liability, notwithstanding the criminal purpose of the doer. I may buy matches with intent to burn a haystack, and yet be clear of attempted arson; but if I go to the stack and there light one of the matches, my intent has developed into a criminal attempt. To intend to commit a crime is one thing; to get ready to commit it is another; to try to commit it is a third. We may say, indeed, that every intentional crime involves four distinct stages—Intention, Preparation, Attempt, and Completion. The two former are commonly innocent. An unacted intent is no more a ground of liability than is an unintended act. The will and the deed must go together. Even action in pursuance of the intent is not commonly criminal if it goes no further than the stage of preparation. I may buy a pistol with felonious purpose, and yet remain free from legal guilt. There is still a locus poenitentiae. But the two last stages in the offence, namely attempt and completion, are grounds of legal liability. How, then, are we to draw the line which thus separates innocence from guilt? What is the distinction between preparing to commit a crime and attempting to commit it? How far may a man go along the path of his criminal intent, and yet turn back in safety if his heart or the occasion fails him? This is a question to which English law gives no definite or sufficient answer. “An attempt to commit a crime,” says Sir James Stephen in his Digest of the Criminal Law,351 “is an act done with intent to commit that crime, and forming part of a series of acts which would constitute its actual commission, if it were not interrupted. The point at which such a series of acts begins cannot be defined, but depends upon the circumstances of each particular case.” This, however, affords no adequate guidance, and lays down no principle which would prevent a conviction for attempted forgery on proof of the purchase of ink and paper.
The German Criminal Code,352 on the other hand, defines an attempt as an act done with intent to commit a crime, and amounting to the commencement of the execution of it. That is to say, an act is not an attempt unless it forms a constituent part of the completed crime. Otherwise it is merely preparatory. It may be doubted, however, whether this is a sufficient solution of the problem. We know when a crime is completed, but at what stage in the long series of preliminary acts does it begin? Not later, it would seem, than the earliest act done with the requisite criminal intent; yet this act may be far too remote to constitute an attempt.
What, then, is the true principle? The question is a difficult one, but the following answer may be suggested. An attempt is an act of such a nature that it is itself evidence of the criminal intent with which it is done. A criminal attempt bears criminal intent upon its face. Res ipsa loquitur. An act, on the other hand, which is in itself and on the face of it innocent, is not a criminal attempt, and cannot be made punishable by evidence aliunde as to the purpose with which it was done. To buy matches with intent to commit arson is not attempted arson, because the act is innocent on its face, there being many lawful reasons for the purchase of matches. But to buy dies with intent to coin money is attempted forgery, for the act speaks for itself.353 For the same reason, to buy or load a gun with murderous intent is not in ordinary circumstances attempted murder; but to lie in wait with the loaded weapon, or to present it, or discharge it, is an act which itself proclaims the criminal purpose with which it is done, and it is punishable accordingly. If this is the correct explanation of the matter, the ground of the distinction between preparation and attempt is evidential merely. The reason for holding a man innocent, who does an act with intent to commit a crime, is the danger involved in the admission of evidence upon which persons may be punished for acts which in themselves and in appearance are perfectly innocent. Cogitationis poenam nemo patitur. No man can be safely punished for his guilty purposes, save so far as they have manifested themselves in overt acts which themselves proclaim his guilt.
There is yet another difficulty in the theory of attempts. What shall be said if the act done with intent to commit a crime is of such a nature that the completion of the crime by such means is impossible: as if I attempt to steal by putting my hand into an empty pocket, or to poison by administering sugar which I believe to be arsenic? It was long supposed to be the law of England that there could be no conviction for an attempt in such cases. It was considered that an attempt must be part of a series of acts and events which, in its completeness, would actually constitute the offence attempted.354 Recent decisions have determined the law otherwise.355 The possibility of a successful issue is not a necessary element in an attempt, and this conclusion seems sound in principle. The matter, however, is not free from difficulty, since it may be argued on the other side that acts which in their nature cannot result in any harm are not mischievous either in their tendency or in their results, and therefore should not be treated as crimes. Shall an attempt to procure the death of one’s enemy by means of witchcraft be punished as attempted murder?