The sun. [volume] (New York [N.Y.]) 1833-1916, 1905-07-06

The recent remarks Of Secretary TAFT
on the safeguards surrounding criminals
and the resulting delay and difficulty in
sustaining convictions are met to de-
gree by three decisions in this State
within a year, two by the Court OF APP
peals and the third by the Appellate
Division for this department. These
cases settle, for the time being at least,
the law Of New York that person may
be convicted of an attempt to commit
a crime, under Section "a OF the Penal
Code, even when tricked into the trans
action by prosecuting officer.
Section "a defines an attempt as an
act done with intent to commit crime,
and tending but failing to effect its COM
mission" Section 8S8 declares the pun
ishment for an attempt to be not more
than twenty-five years if the crime at
tempted is punishable by death or by
Imprisonment for lie, and by maxi
mum term or fine OF half the largest
punishment in any other case.
Perhaps the most celebrated case of the
three was People ps GEORGE f. MILLS,
reported in ITS n, Y, PA, in which Dr.
RICHARD c. FLOWER and various Mexi-
can mining promoters were involved
In that case an endeavor was made to
bride Mr.. CARAVAN of the District Attor-
news Office to suspend the prosecu-
ton of DR.. FLOWER An interview was
arranged between Detective Sergeant
BRINDLEY and MILLS, with the result
that BRINDLEY delivered to MILLS
various indictments against Dr. FLOWER
in return for $500. BRINDLEY then ar
rested MILLS, who was indicted for at
tempted grand larceny in the second
degree and also for an attempt to remove
and destroy public record. The con-
viction on both counts was sustained
through all the courts.
The conviction was attacked on the
ground that as Mills took the papers
with the consent of the District Attorney
the requisite criminal intent was lacking.
Judge NANN however, dismissed this
contention in that "the records were the
property Of the State not of the District
Attorney, and that the latter could not
lawfully give them away or permit them
to be taken by the defendant. Purity Of
intention only could prevent the action
of the District Attorney from being
crime on his part. This is true also as to
the detective, for if either had in fact
intended that the defendant should per-
manently remove the indictments
he would have come within the statute"
MILLS, having coupled his felonious in
tent with an overt act which fell short of
success, was guilty of an attempt. Judge
VANN concludes his opinion as follows:
while the courts neither adopt nor approve the
action the ocers. which they hold was unau,hor-
lied, still they should not hesitate to punish the
crime actually committed BY the defendant. II is
their duty to protect the innocent and punish the
guilty We are asked 10 protect the defendan, not
because he Is innoccnt, but because Jealous public
onacer exceeded his powers and held out bait.
The courts do not look TO see who held out the bal,
but to see who TOOK
The Mills decision was followed in the
recent case of People Us. CONRAD, decided
:ast month. CONRAD was a physician
whose questionable practises aroused
the attention of the County Medical
Society The officers of that society in
duced CONRAD TO perform a criminal
operation on a woman. He was arrested
when about to operate. The courts in
convicting him went step further be-
cause in this case the idea was suggested
to CONRAD, whereas in the Mills case
MILLS was the instigator. But the APP
pellate Division in the language OF JUS
tice HATCH, whose opinion was followed
by the Court of Appeals without COM
ment held the culprit to the conse-
quences of his attempted act, saying:
"He was not passive instrument In the hands
Of the en,Ispping parties, He did the &C, with
which ne was charged voluntarily, with full knowl
edge of the subject and OF tho consequences which
would now thercfrom. Under such circumstances
se,ting a trap by which he was caugh, Is not
Aefcnse."
The same Justice proceeds to quote