State v. Reinoehl ( 1949 )

The substance of appellant's attack, on rehearing, of the opinion is that Section 18-2808, I.C. simply defines an attempt and does not mean what it says, "unsuccessful attempt," and that there is no difference between an "attempt" and an "unsuccessful attempt," and dismisses the presence of the word "unsuccessful" in the statute as surplusage and its effect disregarded.

Of course, where the whole context of a statute or the clearly disclosed legislative intent requires, words may be disregarded as surplusage or interpolated and meanings changed or harmonized; but if a statute is not ambiguous, is clear and express in its provisions, it needs no interpretation; Moody v. State Highway Dept., 56 Idaho 21, at page 26, 48 P.2d 1108; State v. Prince,64 Idaho 343, at page 349, 132 P.2d 146; State ex rel. Haworth v. Berntsen, 68 Idaho 539, 200 P.2d 1007, and the court may not change the meaning of or disregard the language used. State ex rel. Anderson v. Rayner, 60 Idaho 706, at page 713, 96 P.2d 244.

Section 18-2808, I.C. is thus clear, concise and unambiguous and defines a crime clearly recognized by all the authorities as a substantive offense, distinct from attempt. Further, attempt is governed as to penalty by a different statute.

Appellant does not meet, refute or distinguish the authorities cited in the opinion that the legislature may legitimately recognize the distinction between and make each a separate offense, i.e., attempt and unsuccessful attempt.

We do not mean to foreclose ourselves from holding that attempt may not encompass an unsuccessful attempt, but we do appreciate and hold the Legislature may and has by Section 18-2808, I.C. made such distinction — no doubt to embrace every possible contingency; Lamb v. State, 67 Md. 524, 10 A. 208, 298, in connection with the elusive crime of extortion. While Section18-304, I.C. might have been adequate, the Legislature evidently intended to remove all doubt and thus enacted Section 18-2808, I.C.

These additional authorities support our analysis of the statutes; that a distinction may logically exist between attempts and lesser activities amounting to independent offenses of unsuccessful attempts:

State v. Butler, 8 Wash. 194, 35 P. 1093, 25 L.R.A. 434, 40 Am. St. Rep. 900; State v. Schleifer, 99 Conn. 432, 121 A. 805,35 A.L.R. 952 and annotation 961; State v. Beckwith, 135 Me. 423,198 A. 739; Commonwealth v. Wiswesser, 134 Pa. Super. 488,3 A.2d 983; Wiseman v. Commonwealth, 143 Va. 631, 130 S.E. 249; Smith v. Commonwealth, 54 Pa. 209, 93 Am.Dec. 686; State v. Hudon, 103 Vt. 17,151 A. 562; People v. Chase, 117 Cal. App. Supp. 775, 1 P.2d 60, emphasizing "successfully" as differentiated from "prevail upon." "``It (the legislature) is free to recognize degrees of harm, and it may confine its restrictions to those classes of cases where the need is deemed to be clearest. As has been said, it may "proceed cautiously, step by step," and "if an evil is specially experienced in a particular branch of business" it is not necessary that the prohibition "should be couched in all-embracing terms."'" People v. Philbin, 50 Cal. App. Supp. 2d 859, 123 P.2d 159 at page 161.

Attempts may include unsuccessful attempts, but an unsuccessful attempt may be less than attempt and if as here provided, may be made a distinct and separate offense by the legislature. "The section does not punish one who tries and fails to commit a more serious offense." United States v. Miro, 2 Cir., 60 F.2d 58, at page 60. See also State v. Armijo, 19 N.M. 345, 142 P. 1126; People v. Miller, 2 Cal. 2d 527, 42 P.2d 308, 98 A.L.R. 913.

Though somewhat in reverse, Spies v. United States,317 U.S. 492, 63 S. Ct. 364, 87 L. Ed. 418, clearly recognizes and makes the distinction, which is controlling herein, i.e., between attempt and less than an attempt.

Such distinction being thus logical, real and tangible, the Legislature certainly may make each a crime; i.e., attempt and unsuccessful attempt, as Sections 18-304, 305, and 306, and 18-2808, I.C. do.

The judgment should be affirmed.

HOLDEN, C.J., concurs in this dissent.