(concurring.) The question here is an interesting one. The logic of it is, in my judgment, with the view taken by the presiding justice. Independent of the statutes which he has considered, I find myself unable to resist the reasoning of the English judges in Reg. v. McPherson, Dears. & B. Cr. Cas. 197, and Reg. v. Collins, 9 Cox, Crim. Cas. 497. There are two cases in this country in conflict with these English decisions, namely, Com. v. McDonald, 5 Cush. 365, and People v. Jones, 46 Mich. 441, 9 N. W. Rep. 486. All the other cases cited by Mr. Jerome in his admirable brief (Rogers v. Com., 5 Serg. & R. 462; Josslyn v. Com., 6 Metc. 236; State v. Wilson, 30 Conn. 500; Kunkle v. State, 32 Ind. 220; Hamilton v. State, 36 Ind. 280; State v. Beal, 37 Ohio St. 108) referred to acts done with a particular intent, e. g., assault with intent to steal, breaking and entering with intent to steal, assault with intent to kill, assault with intent to rob, and so on. The Massachusetts and Michigan eases fail to distinguish between an act done with a particular intent and an attempt to commit a specific offense. In each case the cox-pus delicti differs. The placing of one’s hand in another’s pocket with intent to steal is one thing. The attempt to commit larceny in the second degree is quite another thing. The criminal intent is but one element in an attempt. There must also be an act tending to effect the commission of the defined crime. If the act merely tends to show guilty purpose, but does not tend to effect the commission of the particular crime, there is no attempt, in a legal sense. We must not go astray by following dictionary definitions of the word “attempt,” rather than legal. Larceny consists of the felonious taking of specific property. An attempt, therefore, to commit larceny necessarily contemplates an act tending to effect the felonious taking of specific property. There can be no such act without the subject. If that is wanting, the act can show nothing more than guilty purpose. The Massachusetts ease rests upon the popular meaning of the word “attempt,” and holds that a man attempts to commit a legally defined crime when he thinks he can, and acts upon the thought, though in fact no such legally defined crime as he contemplates is possible. The Michigan case proceeds upon a view of what the law should be, rather than what it is. This is the language of the court: “We fully concur in the views expressed by the Massachusetts court in Com. v. McDonald, 5 Cush. 365. We think this is not only the better, but the only, rule of law that could be adopted or recognized with safety to the rights of the public or of individuals.” The logic of Chief Justice Cockburn in the two English cases seems to me to be quite unanswerable. In Reg. v. McPherson he says: “The word ‘ attempt ’ clearly conveys with it the idea *586that if the attempt had succeeded the offense charged would have been committed, * * * but attempting to commit a felony is clearly distinguish-
able from intending to commit it. An attempt must be to do that which, if successful, would amount to the felony charged.” And in Reg. v. Collins, he says: “But, assuming that there was nothing in the pocket of the prosecutrix, the charge of attempting to‘commit larceny cannot be sustained. This-case is governed by that of Reg. v. McPherson, and we think that an attempt, to commit a felony can only be made out when, if no interruption had taken place, the attempt could have been carried out successfully, and the felony completed, of the attempt to commit which the party is charged. In this case,, if there is nothing in the pocket of the prosecutrix, in our opinion, the attempt to commit larceny cannot be established.” Nor is there any real conflict between these two cases and the earlier case of Reg. v. Goodall, 2 Cox, Crim. Cas. 40. There was no question in the latter case of an attempt. The-conviction was for the offense of using an instrument upon a woman, with intent to procure a miscarriage. The statutory crime consisted simply of the-act, done with the guilty intent. The prisoner there could not have been properly convicted of an attempt to commit a criminal abortion, for the reason that the subject of abortion was not present. The distinction seems clear,, and I am surprised at Mr. Bishop’s difficulty in reconciling the cases. 1 Crim. Law, (7th Ed.) § 741. Mr. Jerome’s illustrations are apt and plausible, but. hardly convincing. I agree that if we throw a stone at a piece of plate-glass,, and fail to bre’ak it because the glass is too strong, there is an attempt- to break plate-glass. The act tended to break it, and failed.» If, however, the stone were thrown at what appeared to be plate-glass but was not, the wrong-doer might be guilty of throwing with intent to break plate-glass; but, no matter what was in his mind, he could not be guilty of an attempt to break anything-save the shining object which he mistook for glass. So as to the scarecrow illustration. A man does not, in a legal sense, attempt to commit murder when, passing through a field in the dusk, he shoots at a dummy, believing it to be his enemy. He shoots with intent to kill his enemy; but that is not the crime of an attempt to commit murder. The statutes considered by the presiding justice plainly recognize this as the legislative view of attempts;. and the act making the laying on of hands, with intent to steal, an assault and a misdemeanor, must have been intended as a provision for conduct which otherwise would not be punishable at all,—either as an assault or as an attempt to commit larceny. If the Massachusetts and Michigan view of attempts should prevail, I fail to see how any case can ever be brought within this “assault with intent to steal” act. For, if that act is only applicable “under such circumstances as shall not amount to an attempt to commit larceny,” and if every laying of hands upon the person or clothing with the ungratified expectation of finding and taking property is larceny, then how can there ever be an assault with intent to steal? I think the presiding justice’s-view of these statutes is in harmony with their purpose and intent, and that, the acts themselves flow from the legislative construction of what in law constitutes an attempt to commit a defined crime. I therefore concur in the reversal.