But even to prevent harm effectually it will not do to be too exact.I do not suppose that firing a pistol at a man with intent to kill him is any the less an attempt to murder because the bullet misses its aim.Yet there the act has produced the whole effect possible to it in the course of nature.It is just as impossible that that bullet under those circumstances should hit that man, as to pick an empty pocket.But there is no difficulty in saying that such an act under such circumstances is so dangerous, so far as the possibility of human foresight is concerned, that it should be punished.No one can absolutely know, though many would be pretty sure, exactly where the bullet will strike; and if the harm is done, it is a very great harm.If a man fires at a block, no harm can possibly ensue, and no theft can be committed in an empty pocket, besides that the harm of successful theft is less than that of murder.Yet it might be said that even such things as these should be punished, in order to make discouragement broad enough and easy to understand.
There remain to be considered certain substantive crimes, which differ in very important ways from murder and the like, and for the explanation of which the foregoing analysis of intent in criminal attempts and analogous misdemeanors will be found of service.
The type of these is larceny.Under this name acts are punished which of themselves would not be sufficient to accomplish the evil which the law seeks to prevent, and which are treated as equally criminal, whether the evil has been accomplished or not.
Murder, manslaughter, and arson, on the other hand, are not committed unless the evil is accomplished, and they all consist of acts the tendency of which under the surrounding circumstances is to hurt or destroy person or property by the mere working of natural laws.
In larceny the consequences immediately flowing from the act are generally exhausted with little or no harm to the owner.Goods are removed from his possession by trespass, and that is all, when the crime is complete.But they must be permanently kept from him before the harm is done which the law seeks to prevent.A momentary loss of possession is not what has been guarded against with such severe penalties.What the law means to prevent is the loss of it wholly and forever, as is shown by the fact that it is not larceny to take for a temporary use without intending to deprive the owner of his property.If then the law punishes the mere act of taking, it punishes an act which will not of itself produce the evil effect sought to be prevented, and punishes it before that effect has in any way come to pass.
The reason is plain enough.The law cannot wait until the property has been used up or destroyed in other hands than the owner's, or until the owner has died, in order to make sure that the harm which it seeks to prevent has been done.And for the same reason it cannot confine itself to acts likely to do that harm.For the harm of permanent loss of property will not follow from the act of taking, but only from the series of acts which constitute removing and keeping the property after it has been taken.After these preliminaries, the bearing of intent upon the crime is easily seen.
According to Mr.Bishop, larceny is "the taking and removing, by trespass, of personal property which the trespasser knows to belong either generally or specially to another, with the intent to deprive such owner of his ownership therein; and perhaps it should be added, for the sake of some advantage to the trespasser, a proposition on which the decisions are not harmonious." There must be an intent to deprive such owner of his
ownership therein, it is said.But why? Is it because the law is more anxious not to put a man in prison for stealing unless he is actually wicked, than it is not to hang him for killing another?
That can hardly be.The true answer is, that the intent is an index to the external event which probably would have happened, and that, if the law is to punish at all, it must, in this case, go on probabilities, not on accomplished facts.The analogy to the manner of dealing with attempts is plain.Theft may be called an attempt to permanently deprive a man of his property, which is punished with the same severity whether successful or not.If theft can rightly be considered in this way, intent must play the same part as in other attempts.An act which does not fully accomplish the prohibited result may be made wrongful by evidence that but for some interference it would have been followed by other acts co-ordinated with it to produce that result.This can only be shown by showing intent.In theft the intent to deprive the owner of his property establishes that the thief would have retained, or would not have taken steps to restore, the stolen goods.Nor would it matter that the thief afterwards changed his mind and returned the goods.From the point of view of attempt, the crime was already complete when the property was carried off.
