Odger's English Common Law

110 THE ELEMENTS OF A CRIME.
So, too, in conspiracy there must be a definite agreement between the
conspirators, and such an agreement is an act.
The act of soliciting and inciting a servant to steal his master's goods is
indictable, although the servant did not commit the crime ; for " the
solicitation is an act." 2
" The mere possession of obscene and indecent prints is not indictable
because the law will not take notice of an intent without an act," and
possession is not an act ; but the procuring of such prints with intent to
publish them is indictable, for it is an act done ; it is the first step towards
committing the offence of publishing obscene prints. 2
The existence of a criminal intention can only be demon-
strated as a rule by proof of some overt act ; and this overt
act need not be in itself criminal or even amount to an
attempt to commit a crime. The overt act only carries the
prosecution over one stage of the necessary proof by estab-
lishing the element of intention. Some further act must then
be proved ;
otherwise (except in treason) the prisoner is entitled
to an acquittal.
Every attempt to commit a crime, though unsuccessful, is
a misdemeanour at common law. In order to commit such a
misdemeanour, the prisoner must have commenced to do, and
must have done the greater part of, a series of acts, which if
not interrupted would have amounted to the commission of
the full crime. If a man does only one or two of that series
of acts, he has shown his intent, but he has not yet been
guilty of an attempt. But if, -with the intention of committing
that crime, he does most of the series of acts necessary for its
commission, he has made an attempt to commit that crime \
although he may be interrupted or voluntarily desist before
the crime is actually committed. Such an attempt is justly
punished even where no evil effect whatever is produced ; for
it is a criminal endeavour evidenced by overt acts. The
exact point at which the offender's conduct amounts to a
criminal attempt will depend on the circumstances of each
case ; but there must be an act closely approximating to the
commission of the full offence. "Acts remotely leading
towards the commission of the offence are not to be considered
i R. v. Biggins (1801), 2 East, 6 ; R. v. Gregory (1866), L. P. 1 C. C. E. 77.
2 Dugdale r. R. (1853), 1 E. & B. 435.