I dissent. Defendant, having with knowledge repeatedly received goods stolen from a dry goods firm by one of its employees, suggested to the employee that a certain specified kind of cloth be taken, he was told by the employee that that particular kind of cloth was not kept on his floor, and he then said that he would take a roll of a certain Italian cloth. The employee then stole a roll of the Italian cloth .and carried it away, but left it in another store, where he could subsequently get it for delivery to the defendant. Before it was actually delivered to the defendant the employers discovered that the employee had been stealing from them and they accused him of the thefts. The employee then confessed his guilt, and told them of the piece of cloth that had been stolen for the defendant, but had not actually been delivered to him. The roll of cloth so stolen was then taken by another employee of the firm, and it was arranged at the police headquarters that the employee who *293had taken the cloth should deliver it to the defendant, which he did, and the defendant paid the employee about one-half the value thereof. The defendant was then arrested, and this indictment was thereafter found against him. That the defendant intended to commit a crime is undisputed. I think the record shows an attempt to commit the crime of criminally receiving property as defined in sections 550 and 34 of the Penal Code, within the decisions of this court in People v. Moran (123 N. Y. 254; 8 N. Y. Crim. Rep. 105), and People v. Gardner (144 N. Y. 119; 9 N. Y. Crim. Rep. 404).
Cullen, Oh. J., Gray, Edward T. Bartlett, Vann and Werner, JJ., concur with Willard Bartlett, J.; Chase, J., dissents in memorandum.
Judgment of conviction reversed, etc.
Subsequently and upon October 22nd, 1906, an application for a reargument was submitted by the People.
Robert C. Taylor, for the motion.
The reversal is based upon the authority of 1 Bish. Crim. Law (7th ed.), § 747. This very section of Bishop had been expressly cited in the opinion of Follett, J., who wrote the prevailing opinion of the General Term which had reversed the.conviction, in the case of People v. Gardner (73 Hun, 66; s. c:. 9 N. Y. Crim. 124). The Court of Appeals, however, subsequently repudiated the reasoning of the General Term, as based upon no authority, and without any foundation in principle or reason. (People v. Gardner, 144 N. Y. 119, 126; s. c. 9 N. Y. Crim. 404, 409.)
Henry W. Unger and Abraham Levy opposed.
Upon the 26th day of October, 1906, the court handed down the following memorandum:
“Motion for reargument denied.” (186 N. Y. , memo.)
*294NOTE ON TRAPS AND ATTEMPTS.
The three cases of Conrad, DuVeau and Jaffe, above printed, justify brief comment upon the law of traps and attempts as the New York courts have stated it.
1. As to Traps.
The New York cases make it plain that the existence of a trap does not, per se, constitute any defense, unless its effect is, in some way, to destroy some essential element of the crime. This doctrine was strongly stated in the Mills case, already reported in this series. (See People v. Mills, stay refused, 41 Misc. 195; s. c. 17 N. Y. Crim. 466; judgt. aff’d 91 App. Div. 333; s. c. 18 N. Y. Crim. 125; judgt. aff’d 178 N. Y. 274; s. c. 18 N. Y. Crim. 269; 67 L. R. A. 131.)
The Mills case was cited and followed by the Conrad, DuVeau and Jaffe cases (supra).
If the authorities, outside of New York, are examined, cases will be found which intimate that traps'^ are against public policy. The New York courts had never announced any such doctrine; but, in fact, doctrines quite to the contrary. (See Bd. Excise v. Backus, 29 How. Pr. 33, 42; People v. Krivitzky, 168 N. Y. 182, s. c. 16 N. Y. Crim. 62.) Their general attitude is illustrated by the cases collected in the note appended to the report of the Mills opinion, and entitled “The Competency of Evidence Irregularly Obtained.” (18 N. Y. Crim. at page 309.)
It is believed, however, that the Mills opinions overrule, in New York at least, any sentimental contention that it is against public policy to propagate crime by laying traps. The contention received its strongest possible statement in the dissenting opinions of O’Brien and Bartlett, JJ., and most of the cases which so hold are there discussed. (18 N. Y. Crim. at page 286.) This sentimental view had been strongly advanced in the Saunders case (38 Mich. 218), but the Saunders case was repudiated by the U. S. Supreme Court in the leading “ decoy letter ” case. (Grimm v. U. S., 156 U. S. 604.) The Grimm case was followed by the Court of Appeals in the Krivitzky case (supra). The Krivitzky case, in turn, was followed in the Mills case (supra). In the Mills case, the New York conception of the doctrine was pithily stated by Vann, J.: “The courts do not look to see who held out the bait, but to see who took it.” (178 N. Y. at p. 289; 18 N. Y. Crim. at p. 286.)
The sentimental argument was also effectually, although silently, answered by the Court of Appeals in the Conrad case (supra). The appellant’s brief urged that the divine injunction “Lead us not into temptation ” was an integral part of the law of New York, and forbade resort to traps. (See Appl’ts brief on file.) The affirmance, without opinion, was an answer to this pious contention. In an earlier case, one of the General Terms had expressly held that such a contention was insufficient, *295and cited as a precedent the action of the great Law giver in overruling Adam’s plea in Paradise “The serpent beguiled me and I did eat.” (Bd. Excise v. Backus, 29 How. Pr. 33, 42.)
The New York cases make it clear that if the entrapped person does any voluntary act towards the consummation of the crime, he cannot claim the trap as a defense.
In the Mills ease, the opinions had stated that Mills was guilty because he “ proposed the scheme and set in motion the forces, &c.” (18 N. Y.
Crim. at p. 136.) In the Conrad case, Conrad sought to defend himself on the ground that the scheme was proposed to and not by him. It was held, however, that although he had been lured, yet he did the act “ voluntarily, with full knowledge of the subject and of the consequences which would flow therefrom,” and that the existence of the trap, therefore, constituted no defense.
In the light of these New York rulings, it follows that a trap can only operate as a defense, where it operates to prevent the proof of the consummated crime. If it results in a mere physical interference with the actor, as by interrupting him in the attempted consummation of his design, he would then be clearly guilty of an attempt. This is demonstrated by the Conrad and DuVeau cases (supra). Upon the contrary, however, the actor may, without interruption, do everything that he ever intended to do. If then, because of the existence of a trap, there is a failure to prove some essential ingredient of the consummated offense, the trap operates as a defense; and the actor cannot be convicted even of an attempt. This is the doctrine of the Jáffe case (supi'a); and, according to the view of the writer, it necessarily overrules the earlier Gardner- case (144 N. Y. 119; s. c. 9 N. Y. Crim. 404), which has held otherwise.
II. As to Attempts.
It is not intended to discuss the New York law of attempts in general, but merely to point out the contributions made by the Conrad, DuVeau and Jaffe cases (supra). The Jaffe case, as the writer conceives, has overruled the earlier Gardner case (supra).
(1) Impossibility as affecting the indictable character of an attempt.— The text books are full of discussion as to whether a man could be indicted for an attempt if the act which he sought to do was impossible. If the impossibility is merely physical, as, for instance, an attempt to pick a pocket which is empty, or if the defendant meets with an unexpected physical interruption, as in the Conrad and DuVeau eases (supra), his unsuccessful act undoubtedly constitutes an indictable attempt.
This is the doctrine of the Moran case (123 N. Y. 254; s. c. 8 N. Y. Crim. 105); and nothing in the Jaffe opinion affects this doctrine.
*296Upon the other hand, if the condition is such that the defendant, even if uninterrupted, could not, by any possibility, commit the consummated crime because some essential element is lacking; in that event, he may not be convicted even of an attempt. This is the doctrine of the Jaffe ease, which necessarily overrules the earlier Gardner case.
In the Gardner case, the defendant attempted to extort money from a Mrs. Amos. She was, however, acting in concert with the police, and was, on her part, attempting to trap the defendant. The money was paid; but the element of fear was wholly lacking. The Court of Appeals held that Gardner could properly be convicted of an attempt to extort. It is impossible to see how this conviction could he sustained in the light of the Jaffe opinion. It must be said of Gardner, as was said of Jaffe, “ If all which an accused person intends to do would if done constitute no crime, it cannot be a crime to attempt to do with the same purpose a part of the thing intended.” (People v. Jaffe, at foot of p. 290, supra.)
Prior to the decision of the Jaffe case, the Court of Appeals had repeatedly declared that the question whether a man was guilty of an attempt was “ determinable solely by the condition of the actor’s mind and his conduct in the attempted consummation of his design.” This test was declared in the Moran case, and was repeated in the Gardner case (supra); was again repeated in the Sullivan case (173 N. Y. 122; s. c. 17 N. Y. Crim. 180) ; and was also repeated in the Conrad and DuVeau cases, in the Appellate Division opinion in the Jaffe case (supra). As far as the writer is aware, no case had held that this classical test was not applicable to every conceivable attempt. Yet, the Jaffe opinion, after referring to the Moran and Gardner cases, said that this test “ although accurate in those cases, has no application to a case like this.” (People v. Jaffe, at p. 291, supra.) The test, as a test, is destroyed, if there is a single case to which it has no application. It is difficult to see what sort of a test can now .be devised which will enable one infallibly to determine whether a given act does or does not constitute an attempt. Certainly the question is no longer determinable “ solely by the condition of the actor’s mind and his conduct,” &e., as we have hitherto been taught.
The writer, in his capacity as counsel, argued for the affirmance of the Jaffe conviction. He assumed, as he had to assume, that the Gardner case was the law of New York. He feels, now, however, free to concede that the Jaffe doctrine is sounder law. It accords with the views of Mr. Bishop ; and, in a general way, with the views of the text writers who have, for the most- part, adopted Bishop’s conception of the law of attempts.
When the matter is considered in the abstract, it would seem that both Gardner and Jaffe had really been convicted for entertaining mere crim-
*297inal intent, inasmuch as the overt acts of both were ineffectual for any purpose. It is a fundamental principle that “ mere intent is not the subject of penal action and an overt act is essential to impart to the intent criminal responsibility.” (People v. Sullivan, 173 N. Y. 122, 133; s. c. 17 N. Y. Crim. 180, 188, citing Wharton.)
The only matter of regret is that the Gardner opinion should not have been squarely overruled; but that it should be left as a false light to mislead the unwary.
(2) Nature of the overt act.—In New York, under § 34, Penal Code, the defendant, in order to be guilty of an attempt, must commit some act which “ tends but fails ” to effect the commission of the consummated crime.
Outside of New York, it had been held that mere acts of preparation could not be treated as attempts, and that, in order to constitute an attempt, the overt act must be the last proximate act and of such a character that, if not interrupted, it would have resulted in the consummated crime, (See People v. Murray, 14 Cal. 160; U. S. v. Stephens, 8 Sawy. 116.)
In the Sullivan case (173 N. Y. 122, s. c. 17 N. Y. Crim. 180), Cullen, J., declared that this extreme doctrine had never been accepted in New York. In that case the defendants went from Albany to Cobleskill, armed and suitably equipped, with the design of breaking into the postoffiee. They reached the building and were reconnoitering or inspecting it, when their design was frustrated by a police officer, whom they killed. It was held that their acts amounted to an attempt to commit a burglary. This Sullivan ruling was reiterated in the case of one of the co-defendants. (People v. O’Connor, 175 N. Y. 477.)
The Conrad opinion (supra) is chiefly of interest because of its application of the doctrine of the Sullivan case: The facts are too long to be repeated here; but it is enough to say that Conrad’s hand was seized just as he was about to insert a speculum. It was not claimed that the insertion of the speculum would, of itself, have induced an abortion; but it was held that his several acts “were each in turn in ordinary course means to an end, and followed out to a final conclusion would consum,mate the intended crime.”
Both Cullen, J., in the Sullivan opinion, and Hatch, J., in the Conrad opinion, conceded that it might be difficult to determine whether a given act was or was not too remote to constitute an attempt. According to § 34, Penal Code, however, all that is required is that the act should “tend, but fail.” Upon settled principles all questions of cause and effect are matters of fact to be decided by the jury. If it were doubtful whether a given overt act, because of its remoteness, “ tended ” or not, it would seem that that question, together with the other questions in the case, should be submitted to the jury under proper instructions for their guid*298anee. If they found the defendant guilty, their verdict would import a finding that the overt act “ tended ” to effect the commission of the crime.
(3) Intent as affeoted by the existence of a trap.—Under § 34, to commit an attempt, the defendant must have the intent to commit the consummated crime. In the Conrad case (supra), it was argued that where there was a trap, there never could be a conviction for an attempt. The argument was refined, and proceeded upon the theory that the defendant would be merely led along by the entrapping party, and would have no independent intent of his own; that the entrapping patty would concededly have no intent to commit the consummated crime, and that, therefore, the intent required by § 34 would be lacking. (See appl’ts briefs on file.) The Court of Appeals affirmed without opinion, but necessarily overruled the contention. It is enough to say that in most of the New York trap eases, the conviction was for an attempt.