[p. 159] The evidence in this
case entirely fails to sustain the charge against the defendant of an attempt
to contract an incestuous marriage with his niece. It only discloses declarations
of his determination to contract the marriage, his elopement with the niece
for that avowed purpose, and his request to one of the witnesses to go
for a magistrate to perform the ceremony. It shows very clearly the intention
of the defendant, but something more than mere intention is necessary to
constitute the offense charged. Between preparation for the attempt and
the attempt itself, there is a wide difference. The preparation consists
in devising or arranging the means or measures necessary for the commission
of the offense; the attempt is the direct movement toward the commission
after the preparations are made. To illustrate: a party may purchase and
load a gun, with the declared intention to shoot his neighbor; but until
some movement is made to use the weapon upon the person of his intended
victim, there is only preparation, and not an attempt. For the preparation,
he may be held to keep the peace; but he is not chargeable with any attempt
to kill. So in the present case, the declarations, and elopement, and request
for a magistrate, were preparatory to the marriage; but until the officer
was engaged, and the parties stood before him, ready to take the vows appropriate
to the contract of marriage, it cannot be said, in strictness, that the
attempt was made. The attempt contemplated by the statute must be manifest
by acts which would end in the consummation of the particular offense,
but for the intervention of circumstances independent of the will of the
party.
Judgment reversed and cause remanded.