Corkran v. State , 203 Ala. 513 ( 1919 )

"An attempt to commit a misdemeanor is a misdemeanor, whether the offense is created by statute, or was an offense at common law. These were the words of Baron Parke in the case of Rex v. Roderick, 7 Car. P. 795, delivered in the year 1837. They have been adopted by the compilers on criminal law. 1 Russell on Crimes, 46; Archibald's Criminal Pleadings and Evidence, 19; Wharton's Criminal Law, 79-873." Smith v. Commonwealth, 54 Pa. 209,93 Am. Dec. 686. "A mere unsuccessful attempt to commit a substantive crime being ordinarily indictable at the common law, such punishable attempts increase with the statutes creating new crimes." Bishop on Statutory Crimes, § 138. "As a general rule, an attempt to commit a crime is a misdemeanor, whether the crime attempted is a felony or misdemeanor, and whether an offense at common law or under the statute." 16 Corpus Juris, § 90, p. 111, and many cases cited in note 91, including Bradford v. State, 146 Ala. 150, 41 So. 471; Berdeaux v. Davis, 58 Ala. 611; Burton v. State, 8 Ala. App. 295,62 So. 394. It is true that the compiler of the foregoing citation of Corpus Juris states that it has been held that "an attempt to commit a misdemeanor which is purely statutory, and not malum in se, is not indictable as a separate misdemeanor, unless made so by statute," and cites a few cases in note 92, and which said exception was followed by the Court of Appeals in the instant case; but we think that the great weight of authority adheres to the general rule as above set forth, including our own court, without, perhaps, at the time passing upon an attempt to commit a statutory misdemeanor not malum in se. The holding of the Court of Appeals in the case at bar, to the effect that an attempt to commit the offense there charged was not an offense, was erroneous, and the case there cited (Mixon v. State, 14 Ala. App. 11, 70 So. 949) is also unsound.

Sections 6311 and 7315 of the Code of 1907 authorize a conviction for attempts under indictments charging the offense. Hutto v. State, 169 Ala. 19, 53 So. 809. And section 7622 of the Code of 1907 provides for a punishment, if not particularly specified in the Code.

The judgment of the Court of Appeals is reversed, and the case is remanded to said court for further consideration, in conformity with this opinion.

Writ awarded.

All Justices concur, except BROWN, J., not sitting.