Commonwealth v. Johnson , 312 Pa. 140 ( 1933 )

The question here is not whether defendant's fraudulent holding himself out as a medical miracle worker should be punishable by law. That question could properly engage the attention of the legislature. The question here is whether or not the Commonwealth made out a case of criminal attempt. The law of attempts is well settled and its logic is clear. The few cases cited by the Commonwealth in support of its position are cases in which this logic has been departed from in order to lay the lash of the law on those whose states of mind marked them as possible criminals. The criminal law of the United States was never intended to punish states of mind except when they resulted in substantial overt acts. The offense of "imagining the king's death" was not recognized in this country even in colonial days. The logic involved in the offense of "imagining the king's death" is that there may be a crime without an overt act. It is the same logic that is behind the doctrine of constructive treason and this logic has led to some of the most shameful prosecutions, convictions and executions in English history. Sir Matthew Hale said: "Almost every offense that seemed to be a breach of allegiance to the king was by construction raised into the offense of high treason": 2 Hale, Pleas of the Crown (1847 edition) section 1, 80, 82. Algernon Sidney was charged with treason and executed because he merely committed to his own unpublished private papers his ideas of the desirability of a different form of government. "This decision was based on the theory that to write is to commit an overt act": Foster, Crown Law (1767) 198. One of John Marshall's greatest contributions to our jurisprudence was to "outlaw" (in the trial of Aaron Burr) the crime of constructive treason, which was based only on a state of mind. Albert J. Beveridge in "The Development of the American Constitution Under John Marshall," Texas Law Review, October, 1926, pages 106, 109, well says of this: "By that series of opinions [in the Burr case], John Marshall forever overthrew the cruel, brutal, inhuman, illogical British and European doctrine of constructive treason, and established in place of it the humane, reasonable, American doctrine of actual and personal treason. Careful scholars have estimated that, during our Civil War, those opinions of Chief Justice MARSHALL saved the lives of thousands of innocent men and women who otherwise would have been sacrificed to the passions of war."

In the case before us the prosecution is based on a state of mind. The defendant's preposterous statement of the cure he could effect, when made to the detective who knew it was preposterous and untrue, was, from the standpoint of sound legal logic, as harmless as Algernon Sidney's unpublished ideas on government. The defendant's state of mind was not followed by any substantial overt act which took the defendant a single step nearer the consummation of his imagined crime than he was when the criminal intent was conceived. When A lies to B and B knows it, A's lie is (except when the lying is done under formal oath and on a material matter) a triviality beneath the law's notice. As Justice HOLMES aptly said in Com. v. Kennedy, 170 Mass. 18,48 N.E. 770: "As the aim of the law is not to punish sins, but is to prevent certain external results, the act done must come pretty near to accomplishing that result before the law will notice it."

The law of criminal attempts is nowhere more correctly and succinctly stated than by Wharton in Criminal Law, 10th edition, section 183: To constitute an attempt, "there must be such a preliminary overt act as may, by the course of the usual natural laws, apparently result, if not interrupted, in crime." See also Dahlberg v. People, 225 Ill. 485, 80 N.E. 310.

In the case before us the "overt act" alleged was the telling of a lie to a detective who knew he was being told a lie. In fact he invited the lie by telling the defendant that he, the detective, had a sister in ill health whereas in fact he had no sister at all. A mere unsworn to, unbelieved and therefore harmless lie does not reach the importance of an "overt act" and should not be accepted as the basis of a criminal prosecution.

The Commonwealth's chief reliance in authority is the "pickpocket cases," in which persons who feloniously put their hands into empty pockets with intent to steal the pocket's supposed contents have been convicted of attempted larceny. The answer to the pickpocket cases is twofold: (1st) The authorities are by no means unanimous that in such cases the crime of attempted larceny is made out. No less an authority than BRAMWELL, B., in Regina v. McPherson, Dean and B. 197, rejected this doctrine though he said it "appeared to me at first plausible." COCKBURN, C. J., also agreed that a conviction could not be sustained in such a case. See 9 Cox Criminal Cases 498. See also Holmes on The Common Law, page 68. 2d In the pickpocket cases, there is present in addition to the criminal intent a very substantial overt act, to wit, the unlawful putting of one's hand into another's pocket. This is a substantial personal trespass and is, of course, unlawful. It is in its essence as criminal as it is to enter unlawfully another's house with intent to steal something which proves to be not there. When the pickpocket follows up his criminal intent by putting his hand into his intended victim's pocket, he has done the most important act in his pocketpicking program. His program of criminal acts (in the empty pocket cases) fell just short of fruition because the last act in the chain of acts, to wit, the taking of valuables from the pocket, could not be accomplished. He had followed his criminal intent with an act substantial and unlawful, but this fell just short of attaining the result desired. What the intended pickpocket did in this case may be compared to the act of an intended murderer firing a bullet toward the heart of a man who had on a bullet-proof vest or the act of an intended maimer who fires a bullet at a man's leg not knowing that the leg was a wooden one. These cases would be respectively attempted murder and attempted assault and battery, because the criminal intents were followed by substantial overt acts to carry, them out. The telling of an unbelieved lie as in the present case weighs no more in comparison with the felonious putting of one's hand into another's pocket with intent to steal than it does with the discharge of pistols in the examples just cited. The telling of an unsworn to, unbelieved lie, like maledictions or "hexing" with lethal intent belongs to the category of "trifles," with which "the law is not concerned." Even though a "voodoo doctor" just arrived here from Haiti actually believed that his malediction would surely bring death to the person on whom he was invoking it, I cannot conceive of an American court upholding a conviction of such a maledicting "doctor" for attempted murder or even attempted assault and battery. Murderous maledictions might have to be punished by the law as disorderly conduct but they could not be classed as attempted crimes unless the courts so far departed from the law of criminal attempts as to engage in legislation. A malediction arising out of a murderous intent is not such a substantial overt act that it would support a charge of attempted murder. Likewise the silly pretension the defendant made to the detective in the case before us, a pretension which the detective totally discredited, was not such a substantial overt act that it, when added to the defendant's fraudulent intent, amounted to the crime of attempting to obtain money by false pretenses.

Nothing herein stated conflicts with the principle from 25 C. J. 614, cited in the majority opinion. No one denies that an attempt consists of (1) "an intent. . . . . ." (2) "the doing of some act, toward obtaining the property by means of the false pretense," and (3) "the failure so to obtain." In the instant case No. 2 is lacking (so is No. 3, for there was no "failure," but we will discuss that later). The telling of a silly, preposterous and unbelieved lie falls as far short of "the doing of some act toward obtaining the property by means of the false pretense" as cursing a man with murderous intent would fall short of "the doing of some act toward committing murder," if the charge was attempted murder.

Mere words cannot be considered acts of violence or fraud, in the criminal law, until they result in acts. If A makes a false pretense to B and the latter credits this pretense and starts to reach into his pocket to get something of value for A in reliance on his false pretense or starts to write a check or sign a note in reliance upon the false pretense, and then something intervenes to prevent the fraud's reaching fruition, we have a criminal attempt, for A's words have caused an act which is a substantial link in the chain of events leading from a criminal intent to a criminal result. A's false pretense to B plus B's mental responsiveness to it and reliance upon it and B's act toward parting with something of value in reliance upon the false pretense constitute a moving forward to a completed crime, and if something then intervenes, before the crime is consummated, we have a case of attempt to obtain something of value by false pretenses. But a false pretense or lie which is immediately recognized as such and which is not acted upon at all except, as here, for the purpose of leading on and entrapping the would-be criminal is a trifle which is beneath the notice of the law defining criminal attempts. If anyone would claim ownership of the moon or of the state capitol and would make an offer to some intelligent person to sell him the moon or the capitol for $50, it would, in my judgment, be absurd to hold that he should be prosecuted for attempting to obtain money by false pretenses. Such a prosecution would bring the law itself into ridicule. If men go around offering to sell the moon or the state capitol or obviously preposterous "cures" to the gullible and if there are a sufficient number of gullibles to require the law's protection, this protection should come by way of a legislative enactment and not by way of a judicial grafting onto the law of criminal attempts an exotic which both reason and legal history say does not belong there.

It is true that the Commonwealth has cited a few cases from other jurisdictions of no controlling authority here where prosecutions for "attempts" similar to the one now before us have been sustained. Isolated "cases" can be cited in support of almost any proposition however absurd. To paraphrase slightly an ancient line: "In [law] what damned error but some sober brow will bless it and approve it with a [case]." Occasionally some "authority" will "rush in where [reason] fears to tread."

Measured by another time-honored and universally established test the defendant's conviction cannot be sustained. To convict anyone of an attempt to commit any crime, the elements present in the attempt must, as far as they exist at all, be the sameelements that are among those present in the completed crime. For example, there must be a criminal intent in both a certain crime and in an attempt to commit that crime. If a criminal intent is essential to a certain crime, a mere wish to commit that crime, without any actual intent to commit it would not be sufficient to sustain an indictment for an attempt to commit that crime. Likewise, since, as the majority opinion states, "Textbook authorities are apparently in unison on the proposition that the completed crime of false pretense is not established unless it appears that the person alleged to have been defrauded believed the false representations to be true," it follows that since the person whom it is alleged the defendant attempted to defraud did not believe the false representations the indictment for the attempt is not sustained by the proof. "Where the act, if accomplished, would not constitute the crime intended, as a matter of law, then there is no indictable attempt": 16 C. J., page 117, section 96.

Another fact which makes this prosecution for anattempt to obtain money by false pretenses appear to me to be a legal paradox is that the defendant theoretically accomplished whatever crime he intended (except for his failure to deceive anybody) by actually "obtaining" $25 from the detective. The fact that he expected to obtain later additional sums from the same person is utterly immaterial in this case. If a man broke into a bank with the intent to steal $1,000 or $1,000,000 and actually stole only $25 his criminal offense is exactly as complete as if he obtained the larger sum coveted. If a man feloniously steals $1 out of a pocket where he had hoped to find $100 he is no less guilty of larceny than he would have been if he had obtained the larger sum. Therefore, if what defendant in this case did is a crime at all, it is the crime of obtaining money by false pretenses and the court should say so, and not try to designate it as something half-way between a mere criminal intent and a completed crime. Where in addition to the criminal intent there is established as the next step toward the commission of the crime intended a fact strong enough to do a substantial part in carrying the intent forward but this fact is not followed by another or by others necessary to carry the intent right up to its object, the case is one of criminal attempt. Here the defendant followed up his intent to obtain money by false pretenses only by telling an unbelieved lie. This did not amount to a fact strong enough to do a substantial part in carrying the intent forward; it did not advance the criminal intent a single iota toward its object. Defendant's criminal intent fructified only in a farce.

The majority opinion is in substance based on this proposition: When all the links in the unlawful thing a defendant planned to do are present, yet this completed chain of acts is not strong enough to support a charge of a completed crime, proof of an attempt to commit a crime is made out. This impresses me as a unique proposition, without support in reason and utterly at variance with the history and the philosophy of the law of criminal attempts. If the conviction of this defendant of an attempt to obtain money by false pretenses is sound in law, then anyone who possessed of a generally larcenous attitude of mind entraps wildcats in the common woods should be prosecuted for attempted larceny. The fact that wild cats "ferae naturae and unreclaimed" are not the subject of larceny ought not to be a bar to a prosecution for the attempted larceny of them if the fact that the "victim" named in the indictment now before us was neither victimized nor had his credulity imposed on in the slightest degree by the defendant's incredible pretenses is not a bar to this one. The "victim" named was not "subject" to the particular false pretenses employed in the case because of his complete knowledge of their falsity.

I would affirm the judgment of the Superior Court.

Mr. Justice LINN having joined in the opinion of the Superior Court, took no part in the decision of this case here.