123 NY 254 (1890)
In People v. Moran, the Court of Appeals considered the intriguing question of whether it was possible to convict someone of attempting a crime that was in fact impossible to consummate. A police officer observed the defendant and two companions making their way through a crowded daytime market in Manhattan. He saw the defendant thrusting his hand into the pocket of an unknown woman and withdrawing it empty-handed. The officer arrested the defendant. The defendant’s companions and the intended victim were lost in the crowd. After a jury trial before the Court of General Sessions in New York County, the defendant was convicted of attempted Grand Larceny in the Second Degree.
In a divided opinion, the defendant’s conviction was reversed by the General Term of the Supreme Court, First Department. After reviewing the history and language of various statutes addressing attempted crimes and crimes of larceny, Presiding Justice Van Brunt concluded that the legislature did not intend for “an attempt to pick a pocket that had nothing in it” to be treated as “a crime which might be punished as an attempt to commit grand larceny.” Justice Barrett concurred in the result but did so independently of P.J. Van Brunt’s statutory analysis. Rather, he found himself “unable to resist the reasoning of the English judges” holding that a person cannot be convicted of an attempt to steal from the pocket without proof that there was something in the pocket to steal.
Justice Daniels issued a third, dissenting opinion in the case. Though reviewing the same statutes as P.J. Van Brunt, he came to the opposite conclusion.
If the accused appears to have performed an act tending to commit a crime, with the intent to commit it, the offense is made out . . . . In this instance the defendant intended, as the jury was at liberty to find from what the officer stated he had done, to steal the property of the person referred to in the indictment, by taking the same from her person; and he attempted to accomplish that object by putting his hand in her pocket. That was an act tending to commit the crime, and it evinced the existence of the intention on his part mentioned in the statute; and his failure to succeed, by reason of the fact that the woman may have had nothing in her pocket, did not relieve him from this criminal liability.
The Court of Appeals unanimously reversed the decision of the First Department and affirmed the judgment of conviction.
We are of the opinion that the evidence was sufficient to authorize the jury to find the accused guilty of the offense charged. It was plainly inferrible from it that an intent to commit larceny from the person existed, and that the defendant did an act tending to effect its commission, although the effort failed. The language of the statute seems to us too plain to admit of doubt, and was intended to reach cases where an intent to commit a crime and an effort to perpetrate it, although ineffectual, co-existed.
Chief Judge Ruger agreed with Justice Daniels in the First Department who placed decisive emphasis on the defendant’s intent to commit the crime in question.
To constitute the crime charged there must be a person from whom the property may be taken; an intent to take it against the will of the owner; and some act performed tending to accomplish it, and when these things concur, the crime has, we think, been committed whether property could, in fact, have been stolen or not. In such cases the accused has done his utmost to effect the commission of the crime, but fails to accomplish it for some cause not previously apparent to him. The question whether an attempt to commit a crime has been made, is determinable solely by the condition of the actor’s mind and his conduct in the attempted consummation of his design. So far as the thief is concerned, the felonious design and action are then just as complete as though the crime could have been, or, in fact, had been committed, and the punishment of such offender is just as essential to the protection of the public, as of one whose designs have been successful.
Chief Judge Ruger conceded that the weight of authority in England “is in favor of the proposition that a person cannot be convicted of an attempt to steal from the pocket, without proof that there was something in the pocket to steal,” but he was persuaded that a “more logical and rational rule” had been adopted by American courts.
It would seem to be quite absurd to hold that an attempt to steal property from a person could not be predicated on a case where that person had secretly and suddenly removed the contents of one pocket to another, and thus frustrated the attempt, or had so guarded his property that it could not be detached from his person. An attempt is made, when an opportunity occurs and the intending perpetrator has done some act tending to accomplish his purpose, although he is baffled by an unexpected obstacle or condition. Many efforts have been made to reach the north pole, but none have thus far succeeded; and many have grappled with the theory of perpetual motion without success, possibly from the fact of its non-existence; but can it be said in either case that the attempt was not made?