Lovett v. State

19 Tex. 174

• Court: Texas Supreme Court
• Decided: July 1, 1857
• Status: Published

Opinion

Wheeler, J.

To “ attempt," is to make an effort to effect some object; to try, to endeavor, to use exertion for some purpose. (Webster’s Dic.) An attempt necessarily implies an exertion or effort. There is no evidence of any such exertion, effort, or attempt to steal or entice away the slave from his owner in this case. The evidence affords strong circumstances of suspicion. But that is not sufficient to convict of crime. The time proposed for consummating the crime was so distant as to render it very doubtful whether the accused had fully-resolved upon the commission of the act. There was ample room for the locus penitentice, before making a final decision. It would be too much to say he would not have awakened to a just sense of the enormity of the crime, and relented before the proposed time for its perpetration arrived. He may have meditated the stealing or enticing away of the slave ; that is uncertain ; for he may have had a very different purpose : but it would be quite too much to affirm, upon the evidence in the case, that he actually attempted it. The most that can be affirmed, as a conclusion warranted by the evidence, is, that he was making preparations to steal the negro ; and that falls short of an attempt to do so. An attempt to commit a crime is defined to be an endeavor to accomplish it, carried beyond mere preparation, but falling short of the ultimate design, in any part of it. (Bouv. L. Dic. “ Attempt.”) However suspicious, culpable and mischievous the conduct of the accused, we are constrained to conclude it does not afford evidence sufficient to amount to proof of his guilt of the crime of which he is charged, and consequently that the evidence is not sufficient to support the conviction. The judgment must, therefore,be reversed and the cause remanded for anew trial.

Reversed and remanded.