Dupuy v. State , 204 Tenn. 624 ( 1959 )

Mb. Justice Pbewitt

delivered the opinion of the Court.

The defendant below, James Pussel'l Dupuy, was convicted under an indictment charging him with attempt to procure a miscarriage on a young woman named June Harris. This appeal in error resulted.

The statute under which the defendant below was indicted and upon which he stands convicted is Section 39-302 T.C.A. which reads as follows:

“39-302. Attempt to procure criminal miscarriage— Penalty. — Every person who shall administer any substance with the intention to procure the miscarriage of a woman or shall nse or employ any instrument or other means with such intent, unless the same shall have been done with a view to preserve the life of such woman, shall be punished by imprisonment in the penitentiary not less than one (1) nor more than three (3) years.”

The facts appearing in the record are that the defendant, Dupuy, was a druggist and pharmacist in the City of Memphis, and his business establishment was located on Linden Circle.

It seems that Dupuy had a good reputation as an individual and as a pharmacist.

The police of Memphis suspected him of violating the law as to abortion and that they anonymously heard that he was producing miscarriages.

In furtherance of the plan of the police to apprehend the defendant they selected a young woman to get in the confidence of the defendant and set up a situation to find him guilty of violating the law.

This young woman, June Harris, was selected by the officers but she was not pregnant at the time. It seems that this young woman went into the place of business of the defendant two or three times, and finally solicited his help; that the defendant finally agreed to come to her assistance and that they went to a room taking along various instruments owned by the defendant. When they got into the room the officers, who were waiting close by, came upon the defendant and arrested him.

It appears that the defendant had all of his instruments ready on the table and that the woman left the room before any attempt was made to touch her body, ■ or it seems that the defendant never got within five feet of her. About this time the officers came upon the scene and arrested the defendant.

It will be observed that the very aim of the statute is to punish one who attempts to procure a criminal miscarriage. The essence of the offense is that it must be an attempt. A mere preparation is not sufficient.

It appears that in this case this young woman never allowed the man to touch her either with his hands or his instruments. While his conduct is very reprehensible and he would no doubt have carried out this attempt had he not been thwarted in his efforts by the arrival of the police.

It has been suggested that since the female here was not in fact pregnant that the commission of the attempt was impossible.

The State relies upon the case of Rafferty v. State, 91 Tenn. 655, 659, 16 S.W. 728, 729, in which the Court said:

“Hayes v. State (15 Lea 64) was approved and followed in the late case of Clark v. State, 86 Tenn. 511, 8 S.W. 145, wherein it was decided that one who feloniously opened the cash-drawer of another, believing it to contain money or other valuables, and intended to steal the same, was guilty of an attempt to commit larceny, and punishable as for a felony, though the drawer proved to be entirely empty.”

The holding in the above case is a complete answer to this proposition. The intent was there and the overt act was there.

We Rave no such case Rere. WRile tRe defendant Rad completed Ris plan to do tRis crime tRe element of attempt does not appear in tRis record. TRe proof shows tRat Re did not nse any of tRe instruments and did not toucR tRe Rody of tlie girl in question. Under sueR facts we do not think tliat tRe defendant is guilty under tRe statute.

We seem to Rave no Tennessee case directly in point. We quote tRe following’ from 14 Am.Jur. Sec. 68, page 816:

“In a general way, Rowever, it may Re said tRat preparation consists in devising or arranging tRe means or measures necessary for tRe commission of tRe offense and tRat tRe attempt is tlie direct movement toward tRe commission after tRe preparations are made. Even tRougR a person actually intends to commit a crime, Ris procurement of tRe instrumentalities adapted to tliat end will not constitute an attempt to commit tRe crime in the absence of some overt act.”

For example tlie procurement by a prisoner of tools adapted to breaking jail does not render Rim guilty of an attempt to break jail.

TRe over act necessary to constitute an attempt to commit crime must go beyond mere preparation, and commission of tRe crime must be at least apparently possible to tRe reasonable apprehension of accused. State v. Addor, 183 N.C. 687, 110 S.E. 650, 22 A.L.R, 219.

Preparation consists in devising or arranging the means or measures necessary for the commission of the offense; the attempt to the direct movement toward the commission after the preparations have been made. See 22 C.J.S. Criminal Law sec. 75, p. 140; People v. Anderson, 1 Cal.2d 687, 37 P.2d 67.

■ It follows tliat we find a full preparation to do the act with, the criminal intent but the overt act is wholly lacking.

It results that the judgment of the conviction must he reversed and remanded.

Buenett, Justice, dissenting.