(dissenting). The statute under which the defendant has been convicted was enacted for the protection of travelers and applies only to misrepresentations made to travelers and other persons in analogous positions. It renders unlawful any false statement which “ shall divert or attempt to divert any traveler or other person to another hotel, boarding house, rooming house or lodging house.” Applying the principle of ejusdem generis in the construction of the statute (Matter of Hermanee, 71 N. Y. 481; Chegaray v. Mayor, etc., of New York, 13 id. 220; Aikin v. Wasson, 24 id. 482; Burks v. Bosso, 180 id. 341), the “ other person ” referred to must be one who, though not a traveler, is seeking accommodations from which the defendant may “ divert or attempt to divert ” him to “ another ” hotel. The statute does not apply to false statements made to persons who are not travelers nor in search of accommodations and who cannot be diverted from any destination. If the Legislature had intended that result it would have provided that an attempt by misrepresentation to prevail upon “ any person ” not to patronize “ any hotel ” should constitute the crime. A different question then would be presented here. Under the statute, therefore, as it has been written, one of the essential elements of the completed crime is that the victim be in the position of a traveler. Indeed, the district attorney does not argue to the contrary and the prevailing opinion of this court proceeds on that assumption. I shall, therefore, do likewise.
If the statute is intended for the protection of “ travelers,” then neither the completed crime nor the attempt can be committed *686unless the victim is within the class which the statute protects. The circumstance that the defendant believed these detectives to be travelers did not make them so nor does it supply the element which the statute prescribes as essential to the commission of the crime. If it does, then, in accordance with the prevailing opinion, we must, hereafter, hold that an attempt to commit rape in the second degree is committed even though the victim is above the statutory age if it appears that the defendant thought her to be less. In such a case, also, the defendant intended to commit the crime and, judged by moral laws, was as guilty as if he had attempted its commission, but since the consummated act would not have been a crime the “ attempt ” is likewise none.
In the present case the acts of the defendant, if he had succeeded in his purpose, would not have been unlawful for the persons to whom the representations were made were not “ travelers ” and the attempt to commit these lawful acts was not rendered criminal by the fact that the defendant may have thought that he was violating the law. An attempt to violate the statute would indeed have been committed if the detectives had in fact been travelers and the defendant had attempted, though without success, to divert them from their destination. But “ if what a man contemplates doing would not be in law a crime, he could not be said in point of law to intend to commit the crime. If he thinks his act will be a crime, this is a mere mistake of his understanding where the law holds it not to be such, his real intent being to do a particular thing. If the thing is not a crime he does not intend to commit one whatever he may erroneously suppose.” (1 Bishop on Criminal Law [7th ed.], § 742.)
Two illustrations of this principle will suffice. In People v. Jaffe (185 1ST. Y. 497) the defendant had received property from the lawful owner in the belief that it was stolen. It was held that however depraved might have been his purpose the defendant could not be convicted of an attempt to receive stolen property for the reason that the stolen character of the property was an essential element of the crime. Similarly, it has been held that although a defendant may ordinarily be convicted of an attempt to procure a miscarriage even though it appears that the woman was not pregnant (Commonwealth v. Taylor, 132 Mass. 261; Reg. v. Goodall, 2 Cox C. C. 41), where the statute only declares it to be unlawful to procure the miscarriage of a woman “ then being quick with child,” he cannot be convicted of an attempt to commit the crime nnlñss the woman was pregnant at that time. (Rex v. Scudder, 1 Moody, 216; Commonwealth v. Taylor, supra.) Referring to the distinction between these cases, Bishop on Criminal Law (9th ed.), *687in a note to section 741 says: “ Obviously, this decision was required by the express statutory words.” In my opinion the same principle applies here.
The present case is readily distinguishable from People v. Moran (123 N. Y. 254); People v. Gardner (144 id. 119), and People v. Moore (142 App. Div. 402; affd., 201 N. Y. 570), where the act which the defendant in each case attempted to accomplish would, if successful, have constituted a crime. Here the acts of the defendant could not, under any circumstances, have violated the statute for they were not committed with relation to the class of persons designated therein.
It seems to me inaccurate to say that the violation of a statute “ depends upon the mind and intent of the wrongdoer and not on the effect or result upon the intended victim ” or that the judgment should be affirmed because the defendant “ did everything in his power to violate the law.” These expressions fail to distinguish between an “ intent ” and an “ attempt ” to violate the law. The law is not concerned with mental operations, however depraved, even though coupled with some overt acts (People v. Rizzo, 246 N. Y. 334), unless they assume the character of an attempt to do that which, if consummated, would constitute a crime. It is true that such expressions and others of like import may be found in People v. Moran (supra) and People v. Gardner (supra). In People v. Jaffe (supra), however, they were declared to be inapplicable “ where, if the accused had completed the act which he attempted to do, he would not be guilty of a criminal offense.”
I accordingly dissent and vote to reverse the judgment of conviction and to dismiss the information.
Judgment affirmed.