Plaintiffs in error were indicted in the McLean circuit court for an attempt to commit larceny of a number of treasury warrants and some small silver coins. The section under which the indictment was found is the 273d of the Criminal Code, and reads: “ Whoever attempts to commit any offence prohibited by law, and does any act towards it, but fails, or is intercepted or prevented in its execution, where no express provision is made by law for the punishment of such attempt, shall be punished,” etc. The indictment, after describing the property, alleged the attempt was made to steal “the goods and chattels of Aaron Mooney, then and there being found, did feloniously attempt feloniously to take, steal and carry away,” etc.'
A motion to quash the indictment was made, but was overruled by the court. A plea of not guility was then entered, and a trial thereon had by the court and a jury, resulting in a verdict of guilty, and fixing the confinement of defendants in the penitentiary at eighteen months. A motion for a new trial and in arrest of judgment was interposed, but was overruled, and judgment rendered on the verdict, and the defendants prosecute error and urge a reversal.
It is insisted that this indictment is insufficient to sustain the conviction; that it is substantially defective; that something more than an attempt to commit the crime should have been averred; that the law required not only an averment of an attempt, but “ nothing short of an attempt to commit an offence, coupled with an overt physical act done towards its consummation.” The majority of the court regard the objection well taken.
The language of the statute will not bear the construction that no more need be charged than the mere attempt. The word “attempt,” from its connection in this section, seems to imply that it was used in the stead of “intends,” to commit an offence. If this be so, then it is apparent that the statute requires something more than the mere intent, to constitute the crime. It manifestly requires that there should be a purpose to do so, and some act done to perpetrate the offence before the crime is complete. The subsequent words are connected with the word “attempt” by a copulative conjunction, thus rendering it indispensable to the crime that some act should be done towards accomplishing the intention, to constitute guilt. If this be so, and of its correctness we entertain no doubt, then to obtain a conviction, the People would be required to prove acts done towards the perpetration of the offence, and not a mere intention. Such acts being necessary to show the crime charged, they should be specifically averred. This is necessary, according to the rules of correct pleading, and to give the accused notice of what he is required to meet on the trial.
If the averment of a mere attempt was all that is required, accused could never know what acts would be relied on to prove the attempt, and would be liable to surprise. We are, therefore, clearly of opinion that the acts done by accused towards the commission of the crime of larceny should have been specifically averred, and for the want of such an averment, the indictment was bad and should have been quashed. Nor is the charge made in the language of the statute.
The case of Cox v. The People, 82 Ill. 191, sustains this interpretation of this section. That case holds that under this section, to convict of an attempt to commit the crime of incest, mere solicitations do not prove the attempt, but there must be physical acts done by the accused before the crime is complete. So here, there should have been some physical act or acts averred and proved to constitute the attempt under the statute.
The court having erred in overruling the motion to quash the indictment, the judgment is reversed and the cause remanded.
Judgment reversed.