Ex Parte Floyd

COOPER, P. J.

On the twenty-eighth day of September, 1907, a complaint was filed in the police court of the city and county of San Francisco, charging the defendant with “Attempt to make, alter, forge and counterfeit a certain instrument and duebill for the payment of property, in the words and figures following, to wit: that the face of said instrument and duebill was figures, to wit: ‘Good for one 12%e cigar at any of our stores on the Pacific Coast. M. A. Gunst & Co. ’ ’ ’

An examination was held by a magistrate of said police court, and defendant was held to answer to the superior court for the crime of “Attempt to commit forgery.”

Pie now applies to this court to be discharged upon the ground that the evidence taken before said magistrate does not show that any public offense has been committed.

The evidence is before .us with the petition, and shows the facts to be as follows:

The prisoner had for some time prior to May 31, 1907, been in the employ of M. A. Gunst & Co., dealers in cigars and tobacco in the city and county of San Francisco. About the 25th of September, 1907, he went to the place of business of one Lyons, a publisher, and after some conversation as to printing gave Lyons an order or request in writing as follows: “September 25, 1907. I hereby authorize the Pacific Goldsmith Publishing Co. to print 50,000 tickets like sample, to wit, 30,000 for five cigars ea, 12% cent cigars; and 20,000 for one cigar each for 12% cent cigars. Purchasing Agent for M. A. Gunst & Co. Price to be $5 per thousand.” (Signed) “J. D. Floyd.” Lyons took the order, and told the prisoner that he would see about it and if everything was correct he would print the tickets as per the order. M. A. Gunst & Co. had not authorized the prisoner to have any such tickets printed.

' The above is all that was done either by the prisoner or by Lyons. Lyons did not commence to print the tickets, nor

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did he intend to do so without authority from M. A. Gunst & Co.

Do the above facts show an attempt to commit the crime of forgery?

An attempt to commit a crime is an endeavor carried beyond mere preparation but falling short of execution of the ultimate design. It is an act immediately and directly tending to the execution of the principal crime, and committed by the prisoner under such circumstances that he had the power of carrying his intention into execution, and would have done so but for some intervening cause. The law recognizes a distinction between an intention to commit a crime and an attempt to commit such crime. An intention followed by no overt act cannot be punished. There is also a distinction between an attempt to commit a crime, and merely soliciting one to commit it, as there is between an attempt and mere preparation. Mere soliciting one to commit an act which would constitute a crime if committed is not made criminal by our Penal Code.1 It was said by Blackburn, J., in the early case of