State v. Thomason , 23 Okla. Crim. 104 ( 1923 )

This prosecution is based upon section 2297, Compiled Statutes 1921, which provides:

"Any person who attempts to commit any crime, and in such attempt does any act toward the commission of such crime, but fails, or is prevented or intercepted in the perpetration thereof, is punishable, where no provision is made by law for the punishment of such attempt, as follows."

Then follows four subdivisions, providing the punishment for attempted crimes. The intention of the pleader in drawing the foregoing information was to charge an attempt to manufacture a certain intoxicating liquor, to wit, whisky. It is made an offense by both the Constitution and statute of this state to manufacture intoxicating liquor. Section 7002, Compiled Statute 1921; prohibition article (Const.) p. 276, Comp. Stats. 1921.

Courts take judicial notice that whisky is an intoxicating alcoholic beverage. Schlict v. State, 56 Ind. 173; Edgar v. State, 37 Ark. 219; Frese v. State, 23 Fla. 267, 2 So. 1; Fears v. State, 125 Ga. 740, 54 S.E. 661. Also that whisky is made by processes of fermentation and additional distillation. State v. Williamson, 21 Mo. 496; State v. Dengolensky, 82 Mo. 44.

An attempt to commit a crime consists of the following elements: First, the intent to commit the crime; second, the performance of some act towards its commission, commonly called the commission of some overt act; third, the failure to complete or consummate the crime.

It follows, therefore, that the intent to commit a crime, standing alone, does not constitute an attempt towards its commission, and it further follows that an intent to commit a crime, coupled with the overt act, in order to be an attempt, must fail to consummate the crime. In other words, the intent and the overt act combined must fall short of the completed crime, in order to be an attempted crime. Where the intent and the overt act result in the consummation of the crime, there can be no prosecution under the attempt statute.

It is also well settled that the overt act must be something more than mere preparation or planning the crime. It must be something done, some step taken beyond preparation, that directly moves toward the crime and brings the accused nearer to its commission than mere acts of preparation or of planning. It must be such act or acts as will apparently result, in the usual and natural course of events, if not hindered by extraneous causes, in the commission of the crime itself.

Applying the general principles above stated to the information in this case, the following result is obtained: The information alleges that the defendant Thomason, with the unlawful and wrongful intent to manufacture whisky, did the following: Got possession of a boiler with the lid soldered on, with two places in the top, one suitable to pour mash into, and the other suitable to attach a worm to, and that he also got possession of a two-burner gasoline stove, adapted to the use of boiling, heating, and cooking mash. Standing alone, the foregoing allegations might amount only to preparation or planning the crime; but the information goes further, and alleges in substance and by necessary inference that the defendant, being in possession of the foregoing apparati and implements for manufacturing whisky, "did then and there manufacture and make about 40 gallons of mash, which said mash was then and there fermented and ready to be heated, cooked, boiled, and distilled, and used in said still for the manufacture of said whisky." The latter allegation, in our opinion, sets forth a step taken by the defendant beyond the preparation and planning of the crime. These allegations, considered together, show the unlawful intent of the accused to commit the crime and overt acts of his in direct execution of that intent. Now, it is only necessary to consider whether the information alleges matter which shows the failure of the accused to consummate the crime, and in this connection it is our opinion that the following allegation is sufficient for that purpose:

"And said John E. Thomason would have completed the manufacture of said whisky, had he not been prevented from doing so in his attempt by the officers taking his still, stove, and mash."

Such allegation shows the extraneous cause intervening to prevent the completion of the crime itself. While the information is somewhat inartificially drawn, we think that these allegations are sufficient, and set forth the essential elements of the crime of attempting to manufacture whisky, and that the trial court was in error in holding that the overt acts alleged only showed preparation. For such reason it is the opinion of this court that the trial court erred in sustaining the defendant's demurrer to the information.

The trial court made no order authorizing or directing the county attorney to file an additional amended information charging the offense. For a discussion of the proposition as to the finality of the trial court's judgment sustaining the demurrer to the information, and the right of the state to further prosecute, in the absence of an express authorization or direction to that effect by the trial court, see opinion in State v. Vaughan, 15 Okla. Cr. 187, 175 P. 731.

DOYLE and BESSEY, JJ., concur.