The appellant was charged by indictment of the crime of “attempting to import intoxicating liquors into the state .of Arizona.” The particular circumstances of crime are alleged to have been as follows:
“The said D. B. Baca on or about the seventh day of December, A. D. 1915, and before the finding of this indictment at the county of Apache, state of Arizona, did unlawfully and willfully attempt to transport, bring, and carry into the county of Apache, state of Arizona, a large quantity or amount of alcoholic liquors, to wit, whisky, and that at said time there was in full force and effect a law within the state of Arizona known and designated as the prohibition amendment, which prohibits and forbids the attempt to introduce or import into the state of Arizona of any and all alcoholic liquors or beverages of whatever kind, and that the whisky so attempted to be introduced into the state of Arizona is one of the alcoholic beverages mentioned and covered by said prohibition amendment, contrary to the form, force, and effect of the statute in such cases made and provided,” etc.
To this indictment the defendant demurred. The demurrer was overruled. The defendant entered a plea of “not guilty,” and upon a trial had was convicted of the charge and sentenced to punishment, from which sentence he appeals.
The Attorney General has moved to dismiss the cause, for the reasons:
First. Because the abstract of record was not filed in this court on March 13, 1916.
Second. Because appellant has failed to file a brief.
Third. Because appellant has failed to prosecute his appeal.
*352As a prayer to the motion, the Attorney General moves the court to dismiss the appeal. Evidently, the intention of the motion at all times was to dismiss the appeal, and .at no time did the Attorney General intend to move a dismissal of the cause.
The grounds assigned and relied upon by the Attorney General for a dismissal of the appeal are insufficient to justify the order. Paragraphs 1164.-1167, Penal Code 1913.
The indictment, relieved of surplusage, charges that the accused has committed a misdemeanor known as “attempting to import intoxicating liquors into the state of Arizona.” The particular circumstances of the offense are alleged to be as follows:
“The said D. B. Baca, on or about the seventh day of December, A. D. 1915, and before the filing of this indictment .at the county of Apache, state of Arizona, did unlawfully and willfully attempt to transport, bring and carry into the . . . State of Arizona, a large quantity or amount of alcoholic liquors, to wit, whisky, . . . contrary to the form, force and •effect of the statute. ...”
The fair construction of this charge ought to permit of •disregarding the words “the county of Apache” as surplusage, and thereby avoid conflict with the preceding language of the indictment, and preserve as near as may be the -evident meaning of the instrument.
The indictment is intended to be based upon section 1 of .article 23, Amendment to the Constitution, reading as follows :
“Every person who . . . attempts to introduce into the •state of Arizona any ardent spirits, ale, beer, wine, or intoxicating liquor of any kind, shall be guilty of a misdemeanor .and upon conviction shall be” punished, etc.
The clear purpose of this clause of the law is to prevent the liquors mentioned and fairly covered by the provision from becoming a portion of the property of the state, to the end -of promoting temperance. So .anxious are the people of this state in this regard that they were not satisfied to prohibit, under penalty, the introduction of such liquors into the state, but they have gone further, and declared that an .attempt to introduce such liquors into the state is a separate *353crime, independent of the crime of the actual introduction of .such liquors into the state.
The offense here under consideration is established when from the facts it is made to appear that the accused entertained the intention to pass any of such liquors into the state ■of Arizona from another state or from a foreign country to be used for an unlawful purpose, a direct act done by him toward the accomplishment of such intention, and a failure to accomplish such intention, such failure caused by something intervening, over which the accused had no control. Clearly the direct act must reach far enough toward the ■accomplishment of the desired results to amount to the commencement of the consummation before the interruption. In such circumstances, such facts appearing, directly or by legal inference, the offense condemned is established. These ultimate facts must be made to appear from the allegations contained in the indictment, otherwise the offense is not charged.
The allegation that the defendant did willfully and unlawfully “attempt to transport, bring and carry” whisky into the state of Arizona fails to set forth the offense in the language of the law or otherwise, except as a conclusion.
"What are the facts from which the pleader concludes that ■such attempt was made ? They nowhere appear in the indictment. It is the duty of the court to determine from the facts •alleged in the charge whether a criminal offense has been ¿stated. In the absence of facts, this duty cannot be performed.
Under the allegations of this indictment the court may only adopt the prosecutor’s conclusion, viz., that the facts known do the pleader are such as constitute an attempt to introduce whisky into the state of Arizona in violation of law; thereby placing the duty of determining the question upon the prose-cuting attorney, and not upon the court, where it belongs. I am of the opinion that the indictment fails to state facts ■sufficient to constitute a public offense, and that the court -erred in ordering the demurrer overruled.
For such error, the judgment should be vacated and the ■cause remanded, with instructions to sustain the demurrer ;and take such further action in the premises as the law permits.
Vacated and remanded, with instructions.