Foster, J.
The court below was undoubtedly right in refusing to charge that the prisoner could not be convicted upon the testimony of Meany, alone, and in charging the contrary thereto; for although the testimony of accomplices, uncorroborated, should be received with great caution, there cannot be any question that if the jury find a verdict of guilty upon such evidence, the court cannot for that reason set it aside. This question was fully discussed by the court, Beardsley, J., in The People v. Costello, (1 Denio, 83,) and the rule there held was as above stated.
The same rule was laid down in Haskins v. The People, per Bowen, J., (16 N. Y. Rep. 351, 352,) all the judges concurring; and it was reiterated by the Court of Appeals, in The People v. Dyle, (21 N. Y. Rep. 578.) It was followed in Wixson v. The People, (5 Park. Crim. Rep. 120,) by the Supreme Court; and the same rule is laid down in 1 Greenl. Ev. § 380, and 1 Chit. Crim. Law, 604.
The court was also right in holding that, under the indictment in this case, the prisoner might be found guilty of an attempt to commit the burglary charged in it. It is not analogous to the case of Dedieu v. The People, (22 N. Y. [131] Rep. 178,) which is cited by the prisoner’s counsel. In that case the prisoner was indicted for arson in the first degree, for setting fire to an inhabited dwelling-house, in the night-time, and the offense proved was, that the fire was set to a packing box, two trunks and a bed of his own, in the room in which he lived; that the box and trunks contained boots and shoes belonging to him; and the evidence showed that the design was to burn the personal property in the box and trunks; that no part of the property was burned at all; and it was proved that he had an insurance upon the boots, shoes, bedding, &c., in his room. The case showed that there was no arson, or attempt to commit arson, as charged in the indictment ; but the prisoner was convicted of arson, which, though of a lesser grade, was in all respects of an entirely different character. And though the case came within the letter of the statute, yet it was not within the spirit of it; and being a criminal case, the court, in setting aside the conviction, acted upon the well known principle, that it could not have been within the intention of the legislature when they passed the act.
But how is it in the case before us ? The section in question is as follows: “ Upon any indictment for any offense, consisting of different degrees, as prescribed in this chapter, the jury may find the accused not guilty of the offense, in the degree charged in the indictment, and may find such accused person guilty of any degree of such offense inferior to that charged in the indictment, or of an attempt to commit such offense.” (2 R. S. 202, § 27.)
No objection was made, on the trial, that the evidence was not competent, as not tending to prove the offense of burglary charged in the indictment, and it was doubtless all competent for that purpose. But when the evidence was closed, the question was, first, whether it was sufficient to warrant a conviction for the burglary, and the court held it was not; and yet it did tend to prove it, so [132] far as it went; and being competent evidence upon the question of guilty or not guilty of the burglary charged, it was competent to prove the attempt to commit it; and if, under such an indictment, the prisoner could not, if the testimony warranted it, be convicted of the attempt, that portion of the section must have a meaning so restricted as to render it worthless.
As I have stated, the proof was all competent; it all related to the offense charged; and if the legislature intended that, upon a trial for an offense, the prisoner might be convicted of an attempt to commit it, it seems to me this is such a case. There could have been no surprise on the part of the prisoner at the testimony given, for no objection was made to it; and when it was all in, the question was, did it prove the offense, charged, or only an attempt to commit that offense; or was it insufficient to convict him of either of them.
My opinion also is, that the verdict was supported by the evidence; that it showed an attempt to commit the offense, within the meaning of the statute, which is as follows: “Every person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act towards the commission of such offense, hut shall fail in the perpetration thereof, or shall he prevented or interrupted in executing the same, upon conviction thereof, shall,” &c.
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Foster, J.
The court below was undoubtedly right in refusing to charge that the prisoner could not be convicted upon the testimony of Meany, alone, and in charging the contrary thereto; for although the testimony of accomplices, uncorroborated, should be received with great caution, there cannot be any question that if the jury find a verdict of guilty upon such evidence, the court cannot for that reason set it aside. This question was fully discussed by the court, Beardsley, J., in The People v. Costello, (1 Denio, 83,) and the rule there held was as above stated.
The same rule was laid down in Haskins v. The People, per Bowen, J., (16 N. Y. Rep. 351, 352,) all the judges concurring; and it was reiterated by the Court of Appeals, in The People v. Dyle, (21 N. Y. Rep. 578.) It was followed in Wixson v. The People, (5 Park. Crim. Rep. 120,) by the Supreme Court; and the same rule is laid down in 1 Greenl. Ev. § 380, and 1 Chit. Crim. Law, 604.
The court was also right in holding that, under the indictment in this case, the prisoner might be found guilty of an attempt to commit the burglary charged in it. It is not analogous to the case of Dedieu v. The People, (22 N. Y. [131] Rep. 178,) which is cited by the prisoner’s counsel. In that case the prisoner was indicted for arson in the first degree, for setting fire to an inhabited dwelling-house, in the night-time, and the offense proved was, that the fire was set to a packing box, two trunks and a bed of his own, in the room in which he lived; that the box and trunks contained boots and shoes belonging to him; and the evidence showed that the design was to burn the personal property in the box and trunks; that no part of the property was burned at all; and it was proved that he had an insurance upon the boots, shoes, bedding, &c., in his room. The case showed that there was no arson, or attempt to commit arson, as charged in the indictment ; but the prisoner was convicted of arson, which, though of a lesser grade, was in all respects of an entirely different character. And though the case came within the letter of the statute, yet it was not within the spirit of it; and being a criminal case, the court, in setting aside the conviction, acted upon the well known principle, that it could not have been within the intention of the legislature when they passed the act.
But how is it in the case before us ? The section in question is as follows: “ Upon any indictment for any offense, consisting of different degrees, as prescribed in this chapter, the jury may find the accused not guilty of the offense, in the degree charged in the indictment, and may find such accused person guilty of any degree of such offense inferior to that charged in the indictment, or of an attempt to commit such offense.” (2 R. S. 202, § 27.)
No objection was made, on the trial, that the evidence was not competent, as not tending to prove the offense of burglary charged in the indictment, and it was doubtless all competent for that purpose. But when the evidence was closed, the question was, first, whether it was sufficient to warrant a conviction for the burglary, and the court held it was not; and yet it did tend to prove it, so [132] far as it went; and being competent evidence upon the question of guilty or not guilty of the burglary charged, it was competent to prove the attempt to commit it; and if, under such an indictment, the prisoner could not, if the testimony warranted it, be convicted of the attempt, that portion of the section must have a meaning so restricted as to render it worthless.
As I have stated, the proof was all competent; it all related to the offense charged; and if the legislature intended that, upon a trial for an offense, the prisoner might be convicted of an attempt to commit it, it seems to me this is such a case. There could have been no surprise on the part of the prisoner at the testimony given, for no objection was made to it; and when it was all in, the question was, did it prove the offense, charged, or only an attempt to commit that offense; or was it insufficient to convict him of either of them.
My opinion also is, that the verdict was supported by the evidence; that it showed an attempt to commit the offense, within the meaning of the statute, which is as follows: “Every person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act towards the commission of such offense, hut shall fail in the perpetration thereof, or shall he prevented or interrupted in executing the same, upon conviction thereof, shall,” &c.
In the determination of this question, we must assume that the testimony of Meany was true; and it established that having reconnoitered the premises, the prisoner designed and agreed with the witness that at about one o’clock of that night they would commit a burglary, by entering the store of Burk; that in pursuance of such design and agreement, at about the hour of one, they went to the store, through the alley in its rear. That the prisoner carried or caused to be carried there, the set of burglars’ tools, and that they were taken there to aid them in committing the burglary. That when they arrived, the [133] prisoner suggested that none of the tools were strong enough to enable them to force an entrance; that they then concluded to enter a blacksmith’s shop close by, for the purpose of getting a crowbar, or some other tool, with which to break into the store, and that before they entered the shop an alarm was given, and they were intercepted and were prevented from executing their intended purpose. And it is manifest from the evidence, that they did not at any time before such interruption abandon their design of entering the store, and that all they had done and were doing was in furtherance of that object. It is claimed on the part of the prisoner, that when he and the witness were intercepted, they were not engaged in the commission fcf the offense charged, but of another and distinct burglary—that of entering into the shop. It is true that they were then about to break and enter the shop, but such breaking and entering was deemed by them to be necessary to enable them to commit the burglary in question, that being the only burglary which they had designed to commit; and the act of getting the proper instruments, whether from the blacksmith’s shop or elsewhere, was as much an act to enable them to commit the offense with which they were charged, as it would have been if they had taken a crowbar for the purpose, which they had happened to find beside the door of the store ; and it cannot make any difference, whether they were interrupted at the time they were, or whether it had happened after they had obtained the crowbar, and had arrived with it at the door of the store in question. If there was anything in the case tending to prove that the design to enter the store had been abandoned, before they were interrupted, the verdict ' could not be supported; but as it is, it seems to me that every act they did was towards accomplishing their original intent. They therefore attempted the burglary; they did acts towards its commission, and they were interrupted and prevented from accomplishing it. Hone of the author[134] ities cited by the counsel for the prisoner are in conflict with the conclusion to which I have arrived. They all concur in saying that in order to constitute the attempt, there must appear to have been more than the mere design or intention to commit the offense. There must have been some ineffectual act or acts towards its accomplishment. (Wharton’s Criminal Law, § 2702. 6 Grattan, 706. 5 Cushing, 367.) But none of them tend to establish that acts analogous to those proved in this case do not constitute an attempt. The only case which appears in the least to conflict with it is the nisi prius ease of Regina v. Meredith, (8 Car. & Payne, 589,) where Lord Abinger said he thought some illegal act should be proved, to constitute the offense; (and illustrated the suggestion by supposing that when a man was indicted for an attempt to have connection with a female child between the ages of ten and twelve years, and the proof showed that he took his horse and rode to the place where the girl was, he thought such an act would not constitute an attempt. I think that the riding of the horse would not be an act towards the commission of the offense, while the taking of burglars’ tools and crowbars to the place designed to be broken open would be acts done towards its accomplishment. ^ ’
In the Commonwealth v. Clark, (6 Gratton, 675,) the court laid down the rule, “ that there may be an attempt to commit an offense without the completion of any act towards its accomplishment. In the commission of an offense, there will be preparatory or incipient acts. Of these there must be a first one. If the first be merely attempted, it will not constitute an offense, but if it be completed, it will.” And in Commonwealth v. Uhl, (6 Grattan, 706,) the court say: “ The overt act done in the attempt to commit the offense need not be the last proximate act prior to the consummation of the felony attempted to be perpetrated.” But I think the decision in the case of The People v. Bush, (4 Hill, 133,) covers the whole ”question, and is an authority in [135] support of the verdict. The indictment against Bush was under the section of the statute now in question, and charged him with an attempt to commit the crime of arson, for the purpose of burning the barn of one Hildon. The proof showed that Bush requested one Kinney to fire the barn, and offered him a reward for doing the act, and furnished him with a match for that purpose. But Kinney did not fire the barn, and did not intend to do so. Bush was convicted, and upon certiorari to review the proceedings, the court held that the conviction was right. At page 135, the court, Cowen, J., says: “ The course taken to commit the arson by the hand of Kinney was the same thing, in legal effect, as if Bush had intended to set the fire personally, and had taken steps preparatory .to that end.”
[Onondaga General Term,
June 26, 1867.
An attempt may be immediate—an assault, for instance; but it very commonly means a remote effort, or indirect measure, taken with intent to effect an object. And see 1 Russell on Crimes, 49, (Am. ed. of 1836,) where he speaks of solicitation to commit a crime, as an attempt.
The case should be remitted to the court of sessions of Onondaga county, with directions to proceed and render judgment against the prisoner, in accordance with the provisions of part 4, chapter 1, title 7, section 3 of the Be-vised Statutes.
Bacon and Mullin, JJ., concurred.
Morgan, J., expressed no opinion.
Morgan, Bacon, Foster and Mullin, Justices.]