People v. Milne

60 Cal. 71, 1882 Cal. LEXIS 398

• Court: California Supreme Court
• Decided: January 24, 1882
• Docket: No. 10,714
• Status: Published

Opinion

The Court:

The defendant and another were accused by the District Attorney of the crime of attempting to take and entice away two children under the age of twelve years, with intent to detain and conceal them from a person having their lawful custody. The defendant Milne demurred to the information, which demurrer was overruled; and after a separate trial he was convicted. Two points are presented on this appeal, viz.:

1. That the information charges two separate offenses, in that the defendants were accused of an attempt to take and entice away two children; and,

2. There is no such crime as an attempt to take and entice away a child.

We do not think that either point is well taken. The offense of child-stealing is pointed out and defined in Section 278, Penal Code; the commission of the offense does not consist in the number, whether one or more, but in the act and intent constituting an attempt. It was the attempt for which the defendant was prosecuted, not the consummation. The attempt was but a single fact, though it may have embraced several steps and may have included in its object more than one person.

“A count in an indictment, charging an endeavor or conspiracy to procure the commission of two offenses, is not bad for duplicity, because the endeavor is the offense charged.” (Whart. Cr. Pl. and Pr., § 253; R. v. Bykerdike, 1 Moo. & R. 179.)

A person may, by a single act, endeavor to accomplish two or more criminal results. “In such a case,” says Mr. Bishop, “there can be no doubt that if the indictment sets forth the act, and the intent to commit the two or more offenses, according to the fact, it will not be open to the objection of duplicity. There is but one attempt, though the object aimed at is multifarious.” (Bishop’s Cr. Proc. 570. See King v. Fuller, 1 Bos. & Pul. 180; 2 Leach, 3d ed., 916.)

As to the second point made by appellant, an answer is found in Section 664, Penal Code.

Judgment affirmed.