the paper has been fraudulently, feloniously, or illegally obtained from its maker or owner. Such a party makes out his title by presumptions, until it is impeached by evidence showing the paper had a fraudulent inception, and when this is done the plaintiff can no longer rest upon the presumptions, but must show affirmatively his good faith.

The question of law involved in this case was considered in the case of Vosburgh v. Diefendorf, 119 N. Y., 360; 29 N. Y. State Rep., 448, and there received the unanimous approval of the court. That case involved questions relating to a note procured in a manner similar to those now under discussion, and we might well have rested our decision upon that case if there had not been some slight difference in the facts, and the manner of their presentation, which have been urged upon us in this appeal.

The order of the general term should be reversed, and the judgment entered upon the verdict affirmed, with costs. All concur.

THE PEOPLE, App'lts, v. THOMAS MORAN, Resp't.'

(Court of Appeals, Filed October 7, 1890.)

1. CRIMINAL LAW-ATTEMPT TO COMMIT LARCENY BY PICKING POCKETS— PENAL CODE, § 34.

Defendant was seen to thrust his hand into the pocket of a woman and to withdraw it therefrom, empty. There was no proof that there was any property in the pocket which could be the subject of larceny. Held, that the evidence was sufficient to authorize the jury to find the accused guilty of an attempt to commit the crime of grand larceny in the second degree.

2. SAME.

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 been committed, whether property could have been stolen or not.

3. SAME-LAWS 1882, CHAP. 410, § 1447, REPEALED BY PENAL CODE.

Section 1447 of the consolidation act was repealed by the subsequent adoption of the Penal Code, as being inconsistent therewith.

APPEAL from judgment of the supreme court, general term, first department, reversing judgment entered in the court of general sessions, convicting defendant of the crime of attempting to commit the crime of grand larceny in the second degree.

Wm. Travers Jerome, for app'lts; W. II. Hewson, for resp't.

RUGER, Ch. J.-The indictment in this caee 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 New 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 § 531 of the Penal Code, 'Reversing 27 N. Y. State Rep., 18.

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among others, as that of a person who, under circumstances not amounting to grand larceny, steals and unlawfully appropriatesproperty of any value, by taking the same from the person of another. A person who unsuccessfully attempts to commit a crime is made punishable by § 686 of the same Code. Section 34 defines an attempt as "an act with intent 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 New 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 attempted to escape, 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 § 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 subject 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 tending 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, coexisted. Whenever the animo furandi exists, followed by acts apparently affording a prospect of success and tending to render the commission of the crime effectual, the accused brings himself 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., 104; Mackesey v. People, 6 id., 114; Am. & Eng. Law Encyclopedia, title 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, in 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 may 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. McPherson (1857), Dears. & Bell. C. C., 197; Reg. v. Collins (1864), Leigh & 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. See also Reg. v. Goodchild, 2 Car. & Kirwan, 293. In this country, however, the courts have uniformly refused to follow the cases of Reg. v. McPherson 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 attempt was not made?

It is 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, criminal, 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 protect himself from responsibility by showing that by reason of some fact unknown to him at the time of his 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 point. There the accused stuck his 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 this case, arose in the 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 guilty 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 analogous 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 The State v. Beal, 37 Ohio State, 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 stolen. 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; The 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. McPherson and Reg. v. Collins. Bishop's Crim. Law, 8 741; Wharton's Crim. Law, § 186. The uniformity and number of the cases cited constitute a weight of au

thority upon the question involved that might well induce hesitation to 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 legislation 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 § 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 us to a different conclusion in relation to the weight of the legis lative interpretation referred to. By the Revised 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. Sec. 63, art. 5, title 3, chap. 1, part 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 prevented or interrupted in executing the same." Sec. 3, title 7, chap. 1, part 4. Under this act it was held that a person who had procured certain combustibles and solicited 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. The 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 New York alone, which contained the following sections: "Sec. 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 than twenty-five dollars. Attempts under similar circumstances may be punished as for attempts to commit grand larceny." "Sec. 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 amount to an attempt to rob, or an attempt to N. Y. STATE REP., VOL. XXXIII. 51/