#### The People of the State of New York, Appellants, *v.*Thomas Moran, Respondent.

Under the provisions of the Penal Code, making an unsuccessful attempt to commit a crime punishable (§ 686), and defining an attempt as “ an act done with the intent to commit a crime and tending but failing to effect its commission ” (§ 34), the question whether the attempt has been made, is determinable solely by the condition of the actor’s mind, and bis conduct in the attempted commission of his design. Whenever the *•animo furandi*exists, followed by acts apparently affording a prospect >of success, the accused brings himself within the letter and meaning of the statute, although for some reason, not discoverable by him, the crime under existing circumstances may be incapable of accomplishment.

Upon the trial of an indictment charging an attempt to commit the crime of grand larceny in the second degree, it appeared that defendant accompanied by two associates, was observed passing around among the people gathered in a crowded market in the city of Hew York, and was seen to thrust his hand into the pocket of a woman, and to withdraw it therefrom empty. Upon being approached by an officer, the defendant’s companions escaped, but the defendant was arrested. ■ Defendant’s counsel asked the court to direct a verdict in his favor, upon the ground that the facts proved did not support the charge in the indictment. The *255request was denied. *Held,*no error; and that the evidence was sufficient to sustain a verdict of guilty. '

The provision of theNew York Consolidation Act (§ 1447, chap. 410, Laws of 1882), which re-enacts the provision of the act of 1862 (§ 3, chap. 374, Laws of 1862), creating the offense of “assault with intent to steal” is inconsistent with, and so was repealed by the Penal Code.

*Begina'Y. M’Pl>erson(D.*&B. C. C. 197), *undBeginaY.*Collins(L. & C. 471), disapproved.

*People*v. *Moran*(54 Hun, 279), reversed.

(Argued June 24, 1890;

decided October 7, 1890.)

Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made ¡November 7, 1889, which reversed a judgment of the General Sessions entered upon a verdict convicting defendant of an attempt to commit the crime of grand larceny in the second degree.

The facts, so far as material, are stated in the opinion.

*William Travers Jerome*for appellant.

A person.commits the crime of attempting to commit the crime of grand larceny in the second degree, who puts his hand into the pocket of a garment upon the person of another, with intent to steal what may be in that pocket, even though there is nothing in the pocket. (Penal Code, §§ 11, 34, 654; *Reg.*v. *Higgins, 2*East, 5; *People*v. *Bush,*4 Hill, 133; Laws of 1862, chap. 374; Laws of 1886,. chap. 503; Code Crim. Pro. § 177; 2 Bush. Cr. Law, § 23; *Rogers*v. *Commonwealth,*5 S. & R. 462; *Josslyn*v. *Commonwealth,*6 Metc. 236; *Commonwealth*v. *McDonald,*5 Cush. 365; Roscoe’s Cr. Ev. 109; Mass. R. S. chap. 133, § 12; *State*v. *Wilson,*30 Conn. 500; *Kunkle*v. *State,*32 Ind. 20 ; *Hamilton*v. *State,*36 id. 280 ; *Commonwealth*v. *Jones,*46 Mich. 441; *State*v. *Beal,*37 Ohio St. 108; *State*v. *Utley,*82 N. C. 556; Whart. on Cr. Law, §§ 292, 1282; *Clark*v. *State,*86 Tenn. 511; *Reg.*v. *Goodall, 2*Cox, 40 ; *Reg.*v. *M'Pherson,*D. & B. 197; *Reg.*v. *Collins,*L. & C. 471; *Rex*v. *Holden,*R. *&*R. 154; 1 Bishop on Cr. Law [7th ed.] § 741; 1 Whart. on Cr. Law [9th ed.] §§ 186, 723, 772.)

*W. H. Hewson*for respondent.

*256Ruger, Ch. J.

The indictment, in this case charged the defendant with an attempt to commit the crime of grand larceny in the second degree, by attempting to steal, take and carry away from the person of an unknown woman, in the day-time, in the city and county of Hew York, certain goods, chattels and personal property of a kind and description unknown, and of the alleged value of ten dollars. It is claimed that the evidence did not show an attempt to commit, a larceny. The crime of grand larceny in the second degree is defined by section 531 of the- Penal Code, among others, as. that of a person who, under circumstances not amounting to-grand larceny, steals and unlawfully appropriates property of any value, by taking the same from the person of another. A person who unsuccessfully attempts to commit a crime is1 made punishable by section 686 of the same Code. Section 34 defines an attempt as “ an act, done with an attempt to commit a crime, and tending but failing to effect its commission.”

I have thus brought together the several statutes bearing-directly upon the question involved in this appeal, for the. purpose of exhibiting the clearness and directness of the provisions affecting the point to be determined. The evidence-given upon the trial showed that the defendant, accompanied by two associates, was observed passing around among the-people gathered in a crowded market in Hew York, and was. seen to thrust his hand into the pocket of a woman and to> withdraw it therefrom empty. Upon being approached by an officer, the defendant’s companions escaped, but the defendant; was arrested. The woman became lost in the crowd and was not discovered. Upon this evidence, the defendant’s counsel asked the court to direct a verdict for the defendant upon the ground that the facts proved did not support the charge in the indictment. The request was denied and the defendant, excepted. This exception presents the only question raised in the case and depends for its solution upon the construction to be given to section 34 of the Penal Code. The claim of' the defendant is that the evidence did not show that the woman had any property in her pocket, which could be the-*257subject of larceny, and that an attempt to commit that crime could not be predicated of a condition which rendered its commission impossible. We are of the opinion that the evidence was sufficient to authorize the jury to find the accused guilty of the offense charged. It was plainly inferrible from it that an intent to commit larceny from the person existed, and that the defendant did an act ten dine: to effect its commission, although the effort failed. The language of the statute seems to us too plain to admit of doubt, and was intended to reach cases where an intent to commit a crime and an effort to perpetrate it, although ineffectual, co-existed. Whenever the *cmimo furandi*exists, followed by acts apparently affording a prospect of success and tending to render the commission of the crime effectual, the accused brings hinjself within the letter and intent of the statute. To constitute the crime charged there must be a person from whom the property may be taken; an intent to take it against the will of the owner; and some act performed tending to accomplish it, and when these things concur, the crime has, we think, been committed whether property could, in fact, have been stolen or not. In such cases the accused has done his utmost to effect the commission of the crime, but fails to accomplish it for some cause not previously apparent to him. The question whether an attempt to commit a crime has been made, is determinable solely by the condition of the actor’s mind and his conduct in the attempted consummation of his design. *(People*v. *Lawton,*56 Barb. 126; *McDermott*v. *People,*5 Park. Cr. R. 104; *Mackesey*v. *People,*6 id. 114; Am. *&*Eng. Law Encyclopedia, tit. “Attempt.”) So far as the thief is concerned, the felonious design and action are then just as complete as though the crime could have been, or, in1 fact, had been committed, and the punishment of such offender is just as essential to the protection of the public, as of one whose designs have been successful. In the language of Bouvier’s Law Dictionary, an attempt is an endeavor to do an act carried beyond mere preparation; but falling short of execution. Some conflict has been observed in English authorities- on this subject, and it *258may be conceded that the weight of authority in that country is in favor of the proposition that a person cannot be convicted of an attempt to steal from the pocket, without proof that there was something in the pocket to steal. *(Reg.*v. *M' Pherson, D. &*B. C. C. 197; *Reg.*v. *Collins,*L. & C. 471.) The cases in England, however, are not uniform on this subject, and the principle involved in the cases above cited was, we think, otherwise stated in *Reg.*v. *Goodall*(2 Cox C. C. 40), where an attempt to commit a miscarriage was held to have been perpetrated on the body of a woman who was not at the time pregnant. *(Reg.*v. Goodchild, 2 C. & K. 293.) In this country, however, the courts have uniformly, refused to follow the cases of *Reg.*v. *M' Pherson*and *Reg.*v. Collins, and have adopted the more logical and rational rule, that an attempt to commit a crime may be effectual, although, for some reason undiscoverable by the intending perpetrator, the crime, under existing circumstances, may be incapable of accomplishment. It would seem to be quite absurd to hold that an attempt to steal property from a person could not be predicated of a case where that person had secretly and suddenly removed the contents of one pocket to another, and thus frustrated the attempt, or had so guarded his property that it could not be detached from his person. An attempt is made, when an opportunity occurs and the intending perpetrator has done some act tending to accomplish his purpose, although he is baffled by an unexpected obstacle or condition. Many efforts have been made to reach the north .pole, but none have thus far succeeded ;> and many have grappled with the theory of-perpetual motion without success, possibly from the fact of its non-existence; but can it be said in either case that the attenrpt was not made *%*

It was well stated by Justice Gray, in *Commonwealth*v. *Jacobs*(9 Allen, 274), that “ whenever the law makes one step towards the accomplishment of an unlawful object, with the Intent or purpose of accomplishing it criminally, a person taking that step, with that intent or purpose, and himself capable of doing every act on his part to accomplish that object, cannot *259protect himself from responsibility by showing that, by reason, of some fact unknown to Mm at the time of Ms criminal attempt, it could not be fully carried into effect in the particular instance.”

The precise question here involved, under a similar statute, was considered in the case of *Commonwealth*v. *McDonald*(5 Cush. 365), where it was held that a person “ may make an attempt, an experiment to pick a pocket by thrusting his hand into it and not succeed, because there happens to be nothing in the pocket, still he has clearly made the attempt and done the act towards the commission of the offense.” The case of *People*v. *Jones*(46 Mich. 441) is also in ¡mint. There the accused thrust Ms hand into the outside cloak pocket of a woman, but there was nothing in the pocket. It was held that the defendant was well convicted of the crime of attempting to commit larceny. The same question, under circumstances almost identical with those existing in tliis case, arose in *State v. Wilson*(30 Conn. 500), and the court there said-: “ The perpetration of the crime was legally possible, the persons in a situation to do it, the intent clear, and the act adapted to the successful perpetration of it; and whether there was or not property in the pocket, was an extrinsic fact, not essential to constitute the attempt.” In *Clark*v. *State*(86 Tenn. 511), the question was also considered, and it was held, where the proof showed that the defendant had opened the money drawer of one Peebles, that a charge to the jury stating, if the defendant’s “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 gmlty of an attempt to commit larceny, even though at that particular time there was no money in the cash drawer,” was correct. The case of *Reg.*v. *Collins*was there considered and disapproved.

There are numerous other cases in this country, analagous to those above cited, in which it has been held that an intent to commit a crime might be predicated of a condition which rendered it impossible for the crime to have been in fact committed. Among them is the case of *State*v. *Beal*(37 Ohio *260St. 108), where the defendant was indicted for the crime of burglariously entering into the warehouse of William Houts, with intent to steal and take away his property. It was held, the burglarious entrance having been shown, that the defendant could be convicted, although it was proven that the warehouse did not contain any property capable of being stoien. In *Rogers*v. *Commonwealth*(5 S. & R. 463), the indictment charged that the defendant, with intent feloniously to steal and carry away the money of one Earle from his person, put his hand into the pocket of the coat of said Earle. The court, overruling certain exceptions to the indictment, said: “ The intention of the person was to pick the pocket of Earle of whatever he found in it, and, although there might be nothing’: in the pocket, the intention to steal is the same; he had no particular intention to steal any particular article, for he might not know what was in it.” To a similar effect are the cases of *Hamilton*v. *State*(36 Ind. 280), *People*v. *Bush*(4 Hill, 134) and *People*v. *Lawton (supra).*

The elementary writers in this country have uniformly stated the rule as illustrated by the cases cited, and disapproved the English cases of *Reg.*v. *M' Pherson*and *Reg.*v. *Collins.*(Bishop’s Crim. Law, § 741; Wharton’s, Crim. Law, § 186.)

The uniformity and number of the cases cited constitute a weight of authority upon the question involved that might well induce hesitation in any court, even if otherwise inclined, before pronouncing a contrary opinion ; but we not only recognize their force as -authority, but also approve of the reasoning by which the conclusions reached have been attained. The General Term, however, determined, by a divided court, that a distinction existed between an intent to commit a crime and an attempt to commit it, and that the intent might exist although the crime was, under the circumstances, impossible of commission, while an attempt could not be predicated of any act tending to its perpetration, unless the condition was such as to render its commission then possible. This conclusion was mainly reached by a consideration of the history of legis*261lation on the subject in this state, and an inference, drawn therefrom that the law-making power had theretofore recognized a distinction between “ attempts ” and an “ intent,” as affected by the possibility or impossibility of accomplishing •the crime intended. Upon that assumption, they have given a construction to section 34 of the Penal Code, which materially circumscribes its plain meaning and effect.

If the premises assumed by the General Term are correct, it cannot be denied but that the argument made has some force; but a careful consideration of the statutes referred to leads ns to a different conclusion in relation to the weight of the legislative interpretation referred to. By the Bevised Statutes the crime of grand larceny was defined to be “ the felonious taking and carrying away the personal property of another of the value of more than twenty-five dollars,” (§ 63, art. 3, tit. 3, chap. 1, pt 4), and an attempt to commit a crime, '“ as the doing of any act towards the commission of such offense, but failing in the perpetration thereof, or being pre-. vented or interrupted in executing the same.” (§ 3, tit. 7, chap. 1, pt. 4.) Under this act it was held that a person who had procured certain combustibles and solicted another to use them and fire the buildings of another, was properly convicted of the offense of attempting to commit a crime, although the person solicited never intended to commit the crime; the court saying: “the offense then is fully made out, for the intent to do the wrongful act, coupled with the overt acts toward its commission, constitutes the attempt spoken of by the statute.” *(McDermott*v. People, *supra)*To the same effect was *Mackesey*v. *People (supra),*and *People*v. *Lawton (supra).*

In this condition of the law the legislature enacted chapter 508 of the Laws of 1860, applicable to the city and county of Hew York alone, which contained the following sections: “ § 33. Whenever any larceny shall be committed in said city and county by stealing, taking and carrying away from the person of another, the offender may be punished as for grand larceny although the value of the property taken may be less *262than 'twenty-five dollars. Attempts under similar circumstances may be punished as for attempts to commit grand larceny.” “ § 34. 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 under such circumstances as shall not amoimt to an attempt to rob, or an attempt to commit grand larceny, shall be deemed guilty of an assault with intent to Steal and shall be punished as is now provided by law for the punishment of misdemeanors. It shall not be necessary to allege or prove in 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.”

In 1862, the above sections were re-enacted by sections 2 and 3 of chapter 374 of the laws of that year, and made applicable to the whole state, and, as a later act covering the whole subject, undoubtedly superseded sections 33 and 34 of the act of 1860. It will be seen that the main feature of these provisions was to make the offense of stealing from the person grand larceny, independent of the value of the property taken, or the time or place when the attempt was made. In the Consolidation Act of 1882, passed July 1, 1882, sections 33 and 34 of the act of 1860 were re-enacted as a part of the charter of the city of blew York. The legal effect of this re-enactment was not very important, since that city was already subject to the provisions of the act of 1862, which provided for the same offenses, and it would seem to have had no other office to perform, than to bring together in one act the various special provisions of law relating to crimes in such city. This act had little effect as a legislative interpretation, inasmuch as it was intended merely as a codification of existing criminal laws affecting the city of Uew York and was immediately superseded by the enactment of the Penal Code. *(People*v. *Jaehne,*103 N. Y. 182.)

In 1885, by chapter 524 of the laws of that year, the legislature passed an act requiring the attorney-general to prepare and report a bill to repeal the statutes superseded by the Penal Code and Code of Criminal Procedure, and in pursuance of *263this direction chapter 593 of the Laws of 1886, was reported to the legislature and passed by it. This chapter provided for the repeal of a large number of statutes, among which were chapter 508 of the Laws of 1860, and chapter 374 of the Laws of 1862. In the consideration of the questions involved, it must be borne in mind that the question to be determined is as to the meaning and effect of section 34 of the Penal Code, and that must be done by considering- the intent of its authors. This Code is the latest statute on the subject and whatever its requirements, if they are expressed in plain and unambiguous language, are not subject to any rule of construction which tends to subvert its plain meaning and effect. *(People*v. Jaehne, *supra.)*Assuming that the legislature of 1862 supposed an attempt to commit a crime was not predicable of a condition which did not permit of its accomplishment, and thought a special law necessary to reach such cases, it would not necessarily follow that the legislature of 1881 entertained the same views. The design in 1881 was to codify the criminal laws of the state and embrace them all in a single-enactment under a uniform system, and it must be assumed that the authors of the criminal legislation of that year had considered the existing laws on the subject and had omitted only such provisions thereof as they deemed superseded by the proposed Code, or as was otherwise repealed. We think it, must be held under the doctrine of the *Jaehne*case, that section 1447 of the Consolidation Act was repealed by the subsequent adoption of the Penal Code, as being inconsistent therewith.

In reviewing these statutes it seems difficult to resist the conclusion that the legislature of 1862 assumed there were cases of an attempt to steal from the person, which were not covered by the existing law on the subject. The court below have assumed that the only difference discoverable was the alleged fact that in the case of an attempt to commit a crime there must be a possibility of committing it to warrant a conviction, and that section 3 of chapter 374 of the Laws of 1862 was intended to create the minor offense of an assault with intent to steal from *264the person to cover such cases. Upon these assumptions the court has inferred a legislative interpretation of the then existing law, which it has extended to govern the interpretation of the Penal Code subsequently enacted. Some force must, undoubtedly, be given to the views expressed; but we think they are much weakened by a consideration of the conditions of the pre-existing law and the subsequent legislative interpretation.

We have been unable to find any authority in this state for the assumption that an attempt to commit larceny previous to 1862 was not punishable under the Revised Statutes, whether commission of the crime was possible or not. On the contrary, the cases of *People*v. Lawton, *McDermott*v. People, and of *Mackesey*v. People, heretofore cited, clearly hold that to convict of an attempt to commit a crime it is necessary to prove only an intent to commit it* and the doing some act tending to its perpetration. So that, whatever may have been the views of the legislature of 1862, they had no support in the condition of the pre-existing law. If we refer to the subsequent legislation, we shall find most positive proof of the sense of the legislature as to the impropriety and uselessness of section 3 of' the act of 1862. In the enactment of the Penal Code, section 2 of the act of 1862 -was re-enacted, while section 3 was wholly omitted. This omission in a codification of the criminal laws of the state is entirely unexplainable, except upon the theory that in the minds of the law makers that section was unnecessary, because it was covered by other sections of the Code. This view is further confirmed by the action of the legislature of 1886, which wholly repealed chapters 508 and 314 of the Laws of 1860 and 1862, upon the ground that they were superseded by the provisions of the Penal Code. Whatever, therefore, might have been the views of the legislature of 1862 on , this subject, we think they have been quite nullified and discredited by the later expressions of the legislative will. It a'dds much to the force of the views expressed that they will cause the law in the city of. Hew York to conform to that prevailing in other parts of the state, and avoid the unseemly spectacle of *265unequal punislunents for the same offense in different parts of the same jurisdiction. *(People,*v. *Jaehne, supra)*

The order of the General Term should be reversed and the judgment of the Court of General Sessions affirmed.

All concur, except Andrews, J., taking no part.

Order reversed and judgment affirmed.