concurring.
The second section of the 15th division of the Penal Code is, that “ if any person shall attempt to commit an offence prohibited by law, and in such attempt shall do any act toward the commission of said offence, but shall fail in the perpetration thereof, or shall be prevented or intercepted from executing the same, such person so offending shall be indicted for a misdemeanor, and on conviction thereof shall, in cases where no provision is otherwise made in this code or by law for the punishment of such attempt, be punished as follows,” &c. (Cobb, 844.)
Under this provision of the code, George M. Griffin was indicted and convicted in the Superior Court of Morgan county for an attempt to steal jewelry from the storehouse of one Charles W. Richter in said county of Morgan. The proof showed that Griffin, while in Morgan county, took the impression on tin of the key to the door of the building; that he returned to the city of Savannah, where he resided; made a key for the purpose of entering the storeroom; sent it in a box of fruit by express to one Hiram F. Jones, in Madison, Morgan county, who feignedly agreed to become the accomplice of Griffin in the perpetration of the contemplated crime; and who, after plundering the store of its most valuable contents, was to fire the building, in which Griffin was interested, and who had previously effected an insurance on the premises. Jones was then to meet Griilin *506at the 79 mile station, on the Central Railroad, and divide with him the spoils.
The proof being full and complete as to the foregoing facts, was the conviction of Griffin in Morgan county, for an attempt to commit larceny from the house, legal ?
For myself, I entertain not a doubt upon the question.
What is an attempt to commit a crime ? It is an endeav- or to accomplish it, but falling short of execution of the ultimate design. In many cases it is difficult to determine the difference between preparations and attempts to commit crime. One may intend to commit a crime and do many things towards its commission, and yet repent of his purpose. The law gives to such an one a locus penitentise. One of the illustrations given in the books is, where a man buys poison and mixes it in the food' designed for his victim, and places it on the table that he may eat it. If he take back the poisoned food before it is tasted, or an opportunity is given of swallowing it, awakened by a just consideration of the enormity of the crime, he will not be guilty of an attempt to poison. All that was done would amount only to preparation.
Is this Mr. Griffin’s case ? Did he countermand his repeated instigations to .his supposed confederate urging him to the speedy execution of his diabolical scheme ? Did he recall the key? On the contrary, had he not consummated his part of the preparations — all that he had to do except to share the spoils ? and was he not waiting in hopeful anxiety to learn the result ? To welcome the glad tidings that a large portion of Madison was in ashes — that Richter perhaps was beggared, and to wrench from the Insurance Office the rewards of his iniquity? Let his letters respond. History records that Nero fiddled while Rome was consuming under the flames kindled by this monster. Griffin’s correspondence rescues this story from being branded as a fable.
If an attempt means an endeavor, trial, undertaking, ef*507fort to gain a point, then most certainly George M. Griffin, the defendant, was guilty of the attempt to rifle the storehouse of Charles M. Richter of its jewelry.
It turns out that the section of our Penal Code upon which this prosecution was formed, is a verbatim transcript from a similar provision in the Revised Code of New York. One Bush was tried in that State and convicted of an attempt to commit arson. The testimony on the trial was, that Bush, the defendant, requested one Kinney to set fire to one Shelton’s barn, offering him a reward, and giving him a match for that purpose, not meaning to be present himself at the doing of the act. It clearly appeared that Kinney never intended to commit the crime.
Perhaps no two cases were ever more alike in every particular.
The Supreme Court of New York say — '“The act imputed to Bush was, no doubt, an attempt t© commit an offence. It is admitted that he endeavored to make himself an accessory before the fact. A mere solicitation to commit a felony is an offence, whether it be actually committed or not. This was held in King vs. Higgins (2 East. 5). In the case before us, there was more. The solicitation was followed by furnishing the instrument of mischief.”
■ And so here, there was not only the solicitation, but the key was prepared and furnished for entering the store. And that is not all; the goods were to have been divided between the parties, Griffin to receive his share. It matters not to me whether the proof in this case would have made Griffin a principal or an accessory, provided the crime had been actually committed. He would unquestionably have been one or the other. He would have committed a felony or aided and abetted in its commission. He would have been guilty of a crime. Failing then of accomplishment as it has, by no act of repentance or drawing back on the part of Griffin, he is guilty of the attempt, no matter whether the successful result of that effort would have made him a prin*508cipal or an accessory. And the maxim, that what a man does by another, he does by himself, whether true or not, need not be invoked to help out this case.
Was Griffin entitled to a continuance on account of the absence of the witness, A. B. Luce, who had been subpened and was unable to attend Court on account of his sickness, and by whom the defendant swore he expected to prove that the letters read against him on the trial were not in_his handwriting?
Mr. Luce, the witness, lived in Savannah, where there must have been many others acquainted with the handwriting of Mr. Griffin. His counsel in the Court-house knew his handwriting, and were competent witnesses. Why were neither of them sworn on the trial? Could the testimony of Mr. Luce possibly have changed this verdict? It is impossible. For not only was the handwriting of the defendant clearly identified, but in reply to letters addressed to him, his answers were transmitted from time to time, and the key sent in the box of fruit, with such comments as no one who was a stranger to the plot could have made. There is no evading the force of these facts, unless it could have been shown that this was a conspiracy against Griffin, and that the allies of Jones were in Savannah to intercept the communications forwarded from Madison, and had answered them in the name of Griffin. Where is there a particle of proof to support such an hypothesis? Was the Post Master at Savannah examined to ascertain whether Mr. Griffin’s letters were delivered to any one else? Mr. Griffin himself has never pretended that he was the victim of any such conspiracy.
Three times this prosecution had been continued before by the defendant. At the fourth term after announcing himself ready, and putting the country to the trouble of empannelling a jury, Griffin absented himself from the Court without leave, forfeiting his recognizance. To allow a further postponement of the case, under these circumstances, to procure *509the attendance of a witness whose testimony could not possibly vary the result, instead of being req'uired by the principles of justice, would be to trifle with the criminal justice of the country.
The defendant objected to certain conversations and correspondence, going in evidence, which took place between Jones and Richter, he not being present. 1 would dispose of this assignment of error summarily, by remarking that these conversations and letters establish no fact against Griffin, and serve merely to connect and explain the trap that was set to catch this culprit, and in that view were admissible. It will be observed that there was no motion for new trial in this case.
Upon every question, then, made in this record, I vote freely for affirming the judgment of the Circuit Court. I should be slow to believe that a person occupying the social position of this defendant could be guilty of the crime charged upon him in this indictment. But the fact once established, as it indisputably is, I would be the last to save him from the punishment he has brought upon himself. Let it not be said, to its disgrace, that the law is a respecter of persons. That while the poor man is incarcerated in the Penitentiary for stealing a flitch of bacon, to satisfy the hunger of his wife and children, the bank officers and others occupying high fiduciary positions, may rob by the wholesale and go unwhipped of justice. On the contrary, for the sake of the example, the higher the offender the more sure and unerring should be the blow. No class is privileged to monopolize crime with impunity in this country.