(dissenting.) The indictment charged the defendant with attempting to commit the crime of grand larceny in the second degree. It was alleged that he attempted to steal the property of a woman, whose name was to the grand jury unknown, from her person; and, to prove the offense charged in the indictment, a police officer testified that at the Washington market he saw the defendant, and two other persons; that he had seen them before, and followed them, and saw that he went up against a lady, and shoved his hand in her side-pocket. He watched to see if he got anything, but he did not; and after that the arrest was made. Upon this evidence, which was *587not changed by the cross-examination, the defendant’s counsel requested the court to direct the jury to acquit him, on the ground that the facts proved did not support the charge in the indictment. That was denied, and the defendant’s counsel excepted, as he also did to the portion of the charge in which the jury were left at liberty to find from the evidence the facts alleged in the indictment, so far as they were important to make out this offense. By subdivision 2 of section 531 of the Penal Code, it has been made grand larceny in the second degree to steal any property of another of any value, by taking the same from the person; and by section 34 of the same Code it lmsbeen further declared that “an act done with intent to commit a crime, and tending but failing to effect its commission, is an attempt to commit that crime.” And by the next succeeding section it has been provided that the accused may be convicted of an attempt to commit the crime, where he has been charged in the indictment with the commission of the crime itself. It has not been rendered necessary by the section defining the offense of an attempt to commit a crime that it shall be made to appear that the person making the attempt had the ability to consummate the offense itscdf. Neither was it by the preceding law. 3 Rev. St. (6th Ed.) p. 988, § 3. That made it an offense for any person, in the attempt to commit an offense, to do any act towards its commission, where he failed in the perpetration thereof, or was prevented, or intercepted, in executing the attempt. While the language of the preceding statute has been changed and very much abridged, the section of the Penal Code relating to the same subject has not materially changed its effect. It is still an offense for the accused to appear to have done any act with intent to commit a crime, and tending to have that effect; and the failure of the act to result in the commission of the crime is not allowed to exonerate the person from liability to punishment. The enactment has not been qualified by the failure’s depending upon any contingency whatever. If the accused appears to have performed an act tending to commit a crime, with the intent to commit it, the offense is made out, under this section of the Code. In this instance the defendant intended, as the jury was at liberty to-find from what the officer stated he had done, to steal the property of the person referred to in the indictment, by taking the same from her person; and he attempted to accomplish that object by putting his hand in her pocket. That was an act tending to commit the crime, and it evinced the existence of' the intention on his part mentioned in the statute; and his failure to succeed, by reason of the fact that the woman may have had nothing in her pocket, did not relieve him from this criminal liability. The law has not made the offense dependent upon the fact that the person whose pocket may in that manner have been searched, had or had not property or any valuable thing in it; but it has made the offense to consist wholly upon the fact that the accused has done some act having a tendency to commit the crime, when that act has been prompted with the intention that it should be committed.
The legislation in this state providing for increased punishment for the crime of larceny from the person seems to have originated in chapter 508 of the Laws of 1860. This act related to the city of New York, and by section 33 it contained the substantial features of the present legislation defining the crime, and the attempt to commit it, of larceny from the person; for it made it the crime of grand larceny for the defendant to steal from the person of another, although the value of the property should be less than $25, and then it generally declared that attempts under similar circumstances might be punished as for attempts to commit grand larceny. It was further provided, by the next section of the act, that every person who should lay his hand upon the person of another, or upon the clothing upon that person, in the city or county of New York, with intent to steal as a pickpocket, under such circumstances as should not amount to an attempt to rob, or an attempt to commit larceny, should be deemed guilty of an assault with intent to steal, and *588punished as provided by law for the punishment of misdemeanors; and in that class of cases it should not be necessary to allege or prove any article intended to be stolen, or the value thereof, or the name of the person so assaulted. These sections were re-enacted, and made generally applicable to the state at large, by chapter 374 of the Laws of 1862; and the provisions of the section last referred to remained in force until that, as well as the preceding act, were repealed by sections 35 and 37 of chapter 593 of the Laws of 1886. But prior to this repeal the same sections had been made a part of chapter 410 of the Laws of 1882. This chapter was enacted for the consolidation of the laws relating to the city of Mew York, and section 1447 is the same as section 34 of chapter 508 of the Laws of 1860 and section 3 of chapter 374 of the Laws of 1862; and this enactment contained in the act of 1882 has not been affected by the repealing act of 1886, but it still continues in force,—applicable only, however, to offenses, within its provisions, committed in the city of Mew York. But this section is not entitled to any effect in the way of limiting or abridging the language employed in framing section 34 of the Penal Code. That section is applicable to the state at large, including offenses within its description, committed in the city of Mew York as well as elsewhere. It is to be construed according to the reasonable and fair effect of its language; and that construction must be the same in all portions of the state. It cannot be allowed, and could not have been intended, to have a broader or more enlarged significance in one part of the state than in another; and whatever facts would constitute a crime in other portions of the state, under this section, will be equally potent in that respect in the city of Mew York. It is a law of general application, to be construed and applied, in all localities to which it is applicable, with the same force and effect. Section 1447 of chapter 410 of the Laws of 1882 is entitled to no effect whatever, in the way of restricting the application of this section of the Penal Code; for it appears by its terms that it was not intended to include the case of an attempt to commit this crime. It is, as it was in the acts of 1860 and 1862, declaratory of the facts constituting a still different, though inferior, offense from that of an attempt to commit the crime; and it only makes the act a misdemeanor to lay a hand upon another person, or upon the clothing of another person, with the intent to steal as a pickpocket, under such circumstances as will not amount to an attempt to rob, or to commit larceny. This section contains no language preventing the full and appropriate effect to be given to that contained in section 34 of the Penal Code. It is a distinct and independent provision, not designed to qualify the offense of an attempt to steal from the person, but leaving the act relied upon as an attempt to be determined by the language of the section, and the construction which manifestly should be placed upon it. And, while this section of the consolidation act has declared that it should be not necessary to allege or prove any article intended to be stolen; or the value thereof, it has nowhere, by language or implication, provided that it shall be necessary to allege or prove either of those facts to make out the offense of an attempt to commit the crime of larceny from the person, but it leaves the language otherwise employed in the law to be construed by itself, and to be carried into effect according to the import it shall appear entitled to have; and that by no construction has required it to be alleged or proved that the act of the defendant in attempting to pick the pocket of another has not failed of its success by reason of the fact that the pocket contained no article of value which could be taken from it.
In People v. Bernardo, 1 N. Y. Crim. R. 245, it was held by the learned recorder of the city that the act of attempting to pick a pocket, containing nothing which could be stolen, was within this section of the Laws of 1862. But the decision in that case has given a more extended effect to the section of the act under which it was decided than was warranted by its languas"»for, as already observed, it did not include an attempt to commit the cri,-_ *589but all that this section has included is the specific act of laying a hand upon the person or clothing of another, with intent to steal. That was not the act alleged to be criminal, either in that or the present case. What the defendant has been convicted of is not placing his hand upon the person or clothing of the individual mentioned in the indictment, but of the act Of inserting his hand in her pocket, with the intent to steal; which is an entirely different act from that made a misdemeanor by this section of the act of 1862, and the section still in force in the act of 1882. In the case of Reg. v. Collins, 10 Law T. (N. S.) 581, also, it was held that inserting the hand into the pocket of another, which contained nothing capable of being stolen, was not an attempt to commit the crime of larceny from the person; and a similar view prevailed in Reg. v. McPherson, 26 Law J. M. Cas. 134. But these decisions appear to be in marked conflict with the principles applied for the determination of the case of Reg. v. Goodell, 2 Cox, Crim. Cas. 40, and they have been subjected to the same criticism in 1 Bish. Crim. Law, (7th Ed.) 741. Beyond that, the rule upon which they proceeded has not been considered sound, or one which should be followed by the courts in this country. In People v. Bush, 4 Hill, 133, the conviction of the defendant was sustained under an indictment charging him with an attempt to commit the crime, when it was shown that he had solicited another to perform the criminal act, and notwithstanding the fact that this other person never intended to commit the crime. The failure there was as significant as that which followed in this case, from the absence from the pocket of money or property which could be stolen by the defendant. And this was followed in Rogers v. Com., 5 Serg. & R. 463. It was there said, in the course of the opinion, that “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.” In Josslyn v. Com., 6 Metc. 236, under provisions similar to those contained in the Revised Statutes in this state, it was held that a general intent to steal would complete the offense; and that the rule would be the same if there were no goods in the building broken and entered with that intent. A still more direct application of the law is contained in Com. v. McDonald, 5 Cush. 365, and there it was held by the court that an attempt feloniously to steal from the person of another was not dependent for the completion of the crime upon evidence that the person assailed had property at the time in his pocket. And this construction of the law has also been followed in State v. Wilson, 30 Conn. 500; Kunkle v. State, 32 Ind. 220; Hamilton v. State, 36 Ind. 280; People v. Jones, 46 Mich. 441,9 N. W. Rep. 486; State v. Beal, 37 Ohio St. 108. And so it was, also, in Com. v. Jacobs, 9 Allen, 274. What was there said by the court in making the decision is specially applicable to this case, and that is that “whenever the law makes one step toward 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.”
In this state of the law, with the evidence which was produced before the jury, they were authorized to reach the conclusion declared by their verdict, anc], the judgment from which the appeal has been taken should be affirmed.