In Williams the defendant had done everything necessary to commit a crime except receive the money, and in Stokes the defendant had performed his part in the crime of murder and there was nothing left for him to do in furtherance of the crime.Summary of this case from Bucklew v. State
November 13, 1950.
1. Larceny — definition.
It is larceny to obtain fraudulently the property of another with intent to deprive the owner of the property.
2. Criminal law — attempt — necessary elements of — overt acts.
The necessary elements of an attempt are the intent to commit, and the overt act toward its commission; and where the design to commit crime is clearly shown, slight acts done in furtherance of this design will constitute an attempt.
3. Attempt to commit larceny — case in point.
Where it is clear from the proof that appellant and her companion intended to fraudulently obtain money from the prosecuting witness and to convert it to their own use by the contrivance commonly known as "pigeon dropping" and in furtherance of that design they ascertained that the witness had money in the bank and while the witness was at the bank door they presented and exhibited to her a pocket book containing $105 which they represented they had presently found, and offered to divide the found money with the witness if she would get $100 of her money and bring it for division to a designated dress shop nearby, to which place they immediately went, and when approached there by the police they attempted to escape by the back door, the proof was sufficient to sustain the charge of an attempt to commit larceny.
Headnotes as approved by Lee, J.
APPEAL from the circuit court of Warren County; R.B. ANDERSON, Judge.
John H. Culkin, for appellant.
The necessary elements constituting an attempt are, intent to commit, and an overt act. Miller v. State, 130 Miss. 730, 95 So. 83. No intent, on the part of the appellant, was even attempted to be proved. The overt act relied upon by the appellee was the accosting of one Tillie Jackson, and offering to divide certain moneys with her.
In the case of Dill v. State, 149 Miss. 167, 115 So. 203, this Court, speaking through Justice Cook, said: "In a prosecution for an attempt to commit an offense, under the above-mentioned statute, it is necessary to charge and prove some overt act done toward the commission of the offense; and, in the indictment in the case at bar, the overt acts charged are that the appellant feloniously and knowingly prepared "a compound called mash" and assembled a still in which to distill said mash into intoxicating liquor. An overt act is one which manifests the intention to commit the crime; and, it is true that `whenever the design of a person to commit crime is clearly shown, slight acts done in furtherance of this design will constitute an attempt.' Stokes v. State, 92 Miss. 415, 46 So. 627, 21 L.R.A. (N.S.) 898. In the case at bar, however, the overt acts are particularly and properly set forth in the indictment, and the question to be decided is whether or not the facts in evidence establish, or tend to establish the overt acts charged. A mere intention to commit a crime is not punishable, and although it may be, with reason, argued that the statement of appellant, that `he would have had a fire under the still in fifteen minutes if he had not been arrested', indicated his intention to operate the still and manufacture liquor, yet we do not think this statement was sufficient to warrant the jury in finding that he prepared the mash and assembled the still, as charged in the indictment."
As stated in the Dill case, supra, the overt act must be an act done toward the commission of the offense, and must be such act as will manifest the intention to commit the crime. If the star witness for the State, Tillie Jackson, had gone to the bank and secured $100 in one dollar bills, and had then met the appellant, and the appellant had given her $30.00, in addition to the money she had drawn from her bank, would she then be guilty of any crime? This is what the appellant is alleged to have promised the said Tillie Jackson. Without any proof whatsoever to the contrary, can it be said that this is not what the apppellant would have done?
It will be noted from 7 C.J.S. 688, that a mere declaration will not constitute an attempt. In the case at bar, certainly there was nothing more than a mere suggestion on the part of appellant, even taking all of the testimony of the witness, Tillie Jackson, as true.
It is a well settled principle that, where the crime remains unfinished and the defendant is charged with attempt, two important elements are essential, viz: A specific intent to commit the crime, and a direct ineffectual act done towards its commission. Mere intention to commit a specified crime does not amount to an attempt. Preparation alone is not sufficient. Something more is required than mere menaces, suggestions, preparation or planning. See 30 C.J. 13. The preparation consists in devising or arranging the means or measures necessary for the commission of the offense; the attempt is the direct movement towards the commission after the preparations are made. The act must reach far enough towards the accomplishment of the desired result to amount to the commencement of the consummation. See 8 R.C.L. 278 and 279.
In Wharton's Criminal Law (12th Ed.) Vol. 1, p. 280, we find the following rule: "There must be some appreciable fragment of the crime committed, and it must be in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attempter."
The case of Stokes v. State, 92 Miss. 415, is cited in People v. Miller, (Cal.) 98 A.L.R. 913, wherein it is said: "We are mindful of the fact that language appearing in Stokes v. State, 92 Miss. 415, 46 So. 627, 629, 21 L.R.A. (N.S.) 898, that, `Whenever the design of a person to commit crime is clearly shown, slight acts done in furtherance of this design will constitute an attempt', has received approval. People v. Lanzit, 70 Cal.App. 498, 507, 508, 233 P. 816; R.C.L. 279; 13 R.C.L. 798. The statement, however, that slight acts in furtherance of the design will be sufficient is not in conflict with the usual statements of the tests applied to aid in drawing the line at the point where preparation leaves off and execution has commenced. It still presupposes some direct act or movement in execution of the design, as distinguished from mere preparation, which leaves the intended assailant only in the condition to commence the first direct act toward consummation of his design. The reason for requiring evidence of a direct act, however slight, toward consummation of the intended crime, is, as pointed out by the author in Wharton's Criminal Law, that in the majority of cases up to that time the conduct of the defendant, consisting merely of acts of preparation, has never ceased to be equivocal; and this is necessarily so, irrespective of his declared intent. It is that quality of being equivocal that must be lacking before the act becomes one which may be said to be a commencement of the commission of the crime, or an overt act, or before any fragment of the crime itself has been committed, and this is so for the reason that, so long as the equivocal quality remains, no one can say with certainty what the intent of the defendant is. As stated in United States v. Ford (D.C.) 34 F. 26, 27, `the intention of the actor can alone be clearly ascertained by the movements which he has made to complete his design.'"
Can it be said that the actions of the appellant, in speaking to the negro woman, Tillie Jackson, and making certain suggestion to her, relative to an offer to divide certain money she was alleged to have found, be termed the commencement of the commission of a crime? Certainly here, no fragment of any crime had been committed, and certainly, no one could say what the intent of the appellant was. According to the testimony of G.H. Watson, the appellant and Daisy Bell Johnson, at the time they were pointed out to the policeman by Tillie Jackson, were looking at some dresses in the Grayson's store. With the exception of the mere suggestion made to Tillie Jackson, (either by appellant or by Daisy Bell Johnson), there was no direct act, however slight, made by the appellant towards the commission or consummation of any crime.
George H. Ethridge, Assistant Attorney General, for appellee.
It seems to be the argument of the appellant that an overt act as well as the criminal intent is necessary to constitute an attempt to commit larceny under the law. In the evidence in this case, there was an overt act on the part of the appellant as well as a criminal intent to defraud Tillie Jackson and her husband of one hundred dollars ($100.00) being their joint money in the bank. The overt act consisted in the appellant exhibiting to Tillie Jackson the purse alleged to have been dropped by a white man and showing her, Tillie Jackson, that there was money in the purse and representing that the purse contained one hundred and five dollars ($105.00). She actually exhibited the purse and showed that the purse had bills of money in it and stated to Tillie Jackson that she would get back her one hundred dollars ($100.00) plus thirty dollars ($30.00) of the contents of the purse. The exhibiting of the purse and the money therein coupled with said representation constituted an act designed and calculated to deceive and defraud the said Tillie Jackson and her husband of said money. This is a sufficient overt act to constitute an attempt to commit larceny. An intent to commit a crime coupled with an overt act makes out an attempt to commit the crime. It is not necessary that the attempt should be successful or that it should show beyond reasonable doubt the intent to commit the crime, the overt act, although slight it may be in cases, is sufficient to make out the crime charged in the indictment. If the attempt was successful, the attempt would be merged in the principal crime as a part thereof.
The proof of the State seems to me to show beyond any reasonable doubt that the appellant's purpose and attempt to secure the money of Tillie Jackson and her husband, which was in the bank, and this State's evidence is not disputed by any part of the evidence nor did the defendant offer any evidence whatever to show that she had actually found the purse and that it had actually been dropped by any other person. Even if this would have been helpful had she shown that she actually found the purse, picked it up and tried to induce Tillie Jackson and Daisy Bell Johnson to keep silent about it and suppressed the fact that she found it, viewed from any angle, the evidence is sufficient to sustain the conviction and the law justifies the sentence imposed.
Marie Porter, under certain aliases, was jointly indicted with another for an attempted larceny. Her motion for a severance was granted, and on the trial, she was convicted and sentenced to serve a term of three years in the State Penitentiary.
The type of larceny here under review is sometimes called "pigeon dropping", and grows out of the following facts: Tillie Jackson had a joint deposit with her husband, Oliver Jackson, in the First National Bank in Vicksburg, Mississippi. On Saturday, May 19, 1949, she went to town to pay a note. While waiting for the bank to open, she engaged in conversation with one of the indictees, who inquired as to the best bank in town, and where Tillie and her husband kept their money. The appellant came upon the scene, and exhibited a pocket book with money in it. She claimed that she had found it; that it belonged to a white man; and that it had $105 in it. She further admonished Tillie and the other woman not to tell anyone, and she would divide the proceeds with them. Inquiry was made of Tillie as to whether she could get $100 out of the bank without her husband's knowledge. When the reply was in the affirmative, she bade Tillie to get the money in $1 bills so that a division could be effected whereby Tillie would receive $30 for her service and the return of her own money. A dress shop, up the street, in the same block, was designated as the place for the division. Tillie started toward the bank ostensibly to get the money, but, instead of doing so, she told the policeman that the two women were trying to pull a "pigeon dropping" game on her. Officers accompanied her to the dress shop where she pointed out and identified the women. The appellant and her companion evidently suspected a double cross, for, when they went into the dress shop, they asked the proprietor to let them go out the back door. This request being denied, they appeared somewhat nervous as they pretended to look at certain dresses.
The assignments of error all go to the sufficiency of the evidence to sustain the charge.
(Hn 1) It is larceny to obtain fraudulently the property of another with intent to deprive the owner of the property. Akroyd v. State, 107 Miss. 51, 64 So. 936; Hanna v. State, 168 Miss. 352, 151 So. 370; Garvin v. State, 207 Miss. 751, 43 So.2d 209, deals with the so-called "pigeon dropping" version of larceny.
(Hn 2) The necessary elements of an attempt are the intent to commit, and the overt act toward its commission. Miller v. State, 130 Miss. 730, 95 So. 83; Dill v. State, 149 Miss. 167, 115 So. 203. Court opinions and textbook writers have acknowledged the futility of laying down a rule to guide in all cases, preferring rather to say that each case must stand upon its own peculiar facts. The rule is well recognized that "whenever the design of a person to commit crime is clearly shown, slight acts done in furtherance of this design will constitute an attempt". Stokes v. State, 92 Miss. 415, 46 So. 627, 629, 21 L.R.A., N.S. 898.
(Hn 3) It is obvious that appellant and her companion designed and intended to obtain fraudulently the money of the Jacksons and convert it to their own use. The acts done in furtherance of that design were not merely slight, but were, in fact, substantial. The appellant and her companion ascertained that the Jacksons had money. They represented that a pocketbook had been found containing $105. The pocketbook and money were exhibited. The Jacksons had money in the bank. The scheme was to get $100 of their money by permitting Tillie to share in the proceeds of the pocketbook. The place for the division was designated. Tillie left the scene ostensibly to get the money. At the designated place, the appellant and her companion appeared to be nervous and sought to escape. The only thing lacking in the consummation of the larceny was the actual delivery of the money.
The proof sustained the charge.
Kyle, J., took no part in the decision of this case.