(dissenting.) With the conclusion of my associates as expressed in the opinion of Mr. Justice FOLLETT, that because there was no evidence which tended to show that the woman acted through fear the verdict must be set aside, and the prisoner discharged, I cannot concur. • The prisoner was indicted and tried for an attempt to commit the crime of extortion, and the record shows that the evidence tended to establish the existence of every other element constituting the crime of extortion except that the woman in paying the money was actuated in so doing by fear. This *1078latter element, essential to constitute the crime itself, if wanting, it is urged, renders it impossible to sustain an indictment and conviction for the lesser crime of an attempt at extortion. An attempt is defined by the Penal Code (section 34) as “an act done with intent to commit a crime and tending but failing to effect its commission.” Or, as amplified by Bishop in his treatise on Criminal Law, (8th Ed., vol. 1, § 728:) “An attempt is an intent to do a particular thing which the law, either common or statutory, has declared to be a crime, coupled with an act towards the thing, sufficient both in magnitude and in proximity to the fact intended, to be taken cognizance of by the law. * * * Or, more briefly, an attempt is an intent to do a particular criminal thing, with an act towards it falling short of the thing intended.” In the case at bar, if the testimony of the witnesses for the people was credible, (and that was a question for the jury,) the prisoner attempted to obtain money from the complainant by oral threat to accuse her of the crime of keeping a house of ill fame. It is true that the fear intended to be produced by his threats did not follow, which was due to the fact, extrinsic and unknown to the prisoner, that the complainant, in appearing to be affected by such threats into delivering up the money, was acting under the instructions of the police, with a view to entrap the prisoner. Had the prisoner succeeded in producing the fear he intended, the substantive crime would have been made out; but, in the absence of such fear on the part of the complainant, I think that the evidence of the intent to extort, and the acts done tending to effect the commission of the crime, but which failed to effect its commission by reason of the attitude of the complainant, was sufficient to justify a conviction for an attempt. Upon this question of fear it seems to me that throughout the fact is lost sight of that it is the mind of the wrongdoer, and his intent, and not the effect or result upon the person sought to be coerced, in a crime of this character, which must control. As said in People v. Moran, 123 N. Y. 254, 25 N. E. Rep. 412: “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.” I concede that there are certain crimes where the element of force or fear must be present in order to constitute the offense. Such an instance would be of rape, where, if the consent of the woman was given, or if force was not used, the elements necessary to constitute the crime would be lacking, and a conviction for an attempt to commit such a crime upon such facts could not be predicated. In the instance given of rape the intent is to subject the physical body to the unlawful designs of the wrongdoer; whereas in the case at bar it was intended to produce a mental condition, namely, fear, which must be present to constitute the substantive crime. And it seems to me that where every act essential to constitute the crime is present, except the mental effect intended to be produced, namely, fear, (and thus, under the definition, it falls just short of the crime itself,) the offense thus described is criminal, and comes within the definition of an attempt to commit the crime. Here the evidence tended to *1079prove that the prisoner had the criminal intent, and had made the effort to consummate that intent, which, for causes unknown to Mm, was not successful, and which prevented him from committing the crime. The crime was as complete as the prisoner could make it, and to conclude that the failure to establish every element essential to constitute the crime except of fear must result in the discharge of the prisoner is equivalent, to my mind, to asserting that there can be no such crime as an attempt to commit extortion; for, if the reasoning applied to the absence of fear is good, then unless all the elements essential to constitute the crime are present, an indictment and conviction must fall, because a conviction for an attempt cannot be sustained except in a case where the crime itself is committed. I cannot but regard the reasoning of the court of appeals in the case of People v. Moran, supra, as controlling in principle. There the defendant was indicted and convicted of an attempt to commit the crime of grand larceny in the second degree. This crime is defined by section 531 of the Penal 'Code as the stealing or unlawful appropriation of property of any value by taking the same from the person of another. The evidence in that case showed that the prisoner was seen to have thrust his hand into the pocket of a woman, and to have withdrawn it therefrom empty;- and the claim was there made 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. This claim is thus disposed of in the opinion:
“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 occur 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. [Citing People v. Lawton, 56 Barb. 126; McDermott v. People, 5 Parker, Crim. R. 104; Mackesey v. People, 6 Parker, Crim. R. 114; Amer. & Eng. Enc. Law, tit. “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.”
The answer to the claim here made, that because the crime of extortion was not possible in the absence of fear on the part of the complainant, therefore an indictment and conviction upon evidence as and for an attempt to commit such crime is likewise impossible, I think is to be found in the language just quoted from the opinion in People v. Moran, which is throughout strengthened by the citation of numerous authorities. Thus, among others, reference is had to the case of Com. v. Jacobs, 9 Allen, 274, wherein Justice Cray says:
“Whenever the law' makes one step towards the accomplishment of an unlawful object, with the intent or purpose of accomplishing it, criminal, *1080a 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 vtfect in the particular instance. Upon this principle, on an indictment under a statute against passing or disposing of forged bank notes with intent to defraud, it has been held no defense that those to whom the notes were passed knew them to be forged, and therefore could not be defrauded.”
. And again, in the case of the State v. Wilson, 30 Conn. 500, referred to in the opinion, the court there said:
“The perpetration of the crime was legally possible, the person in a situ- „ aüon 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.”
And, after quoting with approval many of the cases, the opinion in People v. Moran says:
“There are numerous other cases in this country, analogous to those above cited, in which it has been held that an attempt to commit a crime might be predicated of a condition which rendered it impossible for the crime to have been in fact committed.”
It is unnecessary, however, that I should pursue this subject .further, as I have sufficiently explained the views I entertain,—that while to constitute the substantive crime it would be necessary in an indictment to aver, and upon the trial to prove, every essential ingredient enumerated in the definition of the crime, this is not requisite in an indictment or upon a trial where the charge is an attempt to commit that crime. While, therefore, in the ease at bar, to establish the crime of extortion, it would have been necessary to aver and prove that through fear the woman had delivered the money to the prisoner, yet the failure by his threats to produce such fear would not prevent an indictment and conviction for an attempt at extortion, provided every other element requisite and essential to constitute the crime were present. In addition to this ground, my associates have concluded that it was error to have excluded certain evidence offered by the prisoner, tending lo show that in what he did he acted under the instructions of the society for the prevention of crime and certain of its officers. In the view that the rulings of the trial judge in excluding such evidence was error, I concur. These, however, upon a new trial, could be cured, but from their conclusion upon the main ground that “it is apparent that a conviction cannot be sustained under this indictment, and that the defendant should be discharged,” I dissent.