HOLMES, C. J.
This is an indictment for an attempt to burn a building and certain goods therein, with intent to injure the insurers of the same. Pub. St. c. 210, § 8. The substantive [p. 271] offense alleged to have been attempted is punished by Id. c. 203, § 7. The defense is that the overt acts alleged and proved do not amount to an offense. It was raised by a motion to quash, and also by a request to the judge to direct a verdict for the defendant. We will consider the case in the first place upon the evidence, apart from any question of pleading, and afterwards will take it up in connection with the indictment as actually drawn.
The evidence was that the defendant had constructed and arranged combustibles in the building in such a way that they were ready to be lighted, and if lighted would have set fire to the building and its contents. To be exact, the plan would have required a candle which was standing on a shelf six feet away to be placed on a piece of wood in a pan of turpentine and lighted. The defendant offered to pay a younger man in his employment if he would go to the building, seemingly some miles from the place of the dialogue, and carry out the plan. This was refused. Later the defendant and the young man drove towards the building, but when within a quarter of a mile the defendant said that he had changed his mind, and drove away. This is as near as he ever came to accomplishing what he had in contemplation.
The question on the evidence, more precisely stated, is whether the defendant's acts come near enough to the accomplishment of the substantive offense to be punishable. The statute does not punish every act done towards the commission of a crime, but only such acts done in an attempt to commit it. The most common types of an attempt are either an act which is intended to bring about the substantive crime, and which sets in motion natural forces that would bring it about in the expected course of events, but for the unforeseen interruption, as, in this case, if the candle had been set in its place and lighted, but had been put out by the police, or an act which is intended to bring about the substantive crime, and would bring it about but for a mistake of judgment in a matter of nice estimate or experiment, as when a pistol is fired at a man, but misses him, or when one tries to pick a pocket which turns out to be empty. In either case the would-be criminal has done his last act.
Obviously new considerations come in when further acts on [p. 272] the part of the person who has taken the first steps are necessary before the substantive crime can come to pass. In this class of cases there is still a chance that the would-be criminal may change his mind. In strictness, such first steps cannot be described as an attempt, because that word suggests an act seemingly sufficient to accomplish the end, and has been supposed to have no other meaning. People v. Murray, 14 Cal. 159, 160. That an overt act, although coupled with an intent to commit the crime, commonly is not punishable if further acts are contemplated as needful, is expressed in the familiar rule that preparation is not an attempt. But some preparations may amount to an attempt. It is a question of degree. If the preparation comes very near to the accomplishment of the act, the intent to complete it renders the crime so probable that the act will be a misdemeanor, although there is still a locus poenitentiae, in the need of a further exertion of the will to complete the crime. As was observed in a recent case, the degree of proximity held sufficient may vary with circumstances, including, among other things, the apprehension which the particular crime is calculated to excite. Com. v. Kennedy, 170 Mass. 18, 22, 48 N. E. 770. See, also, Com. v. Willard, 22 Pick. 476. A few instances of liability of this sort are mentioned on the page cited.
As a further illustration, when the servant of a contractor had delivered short rations by the help of a weight, which he had substituted for the true one, intending to steal the meat left over, it was held by four judges (two of whom were Chief Justice Erle and Mr. Justice Blackburn) that he could be convicted of an attempt to steal. Cheeseman's Case, Leigh & C. 140, 10 Wkly. Rep. 255. So, lighting a match with intent to set fire to a haystack, although the prisoner desisted on discovering that he was watched. Reg. v. Taylor, 1 Fost. & F. 511. So, getting into a stall with a poisoned potato, intending to give it to a horse there, which the prisoner was prevented from doing by his arrest. Com. v. McLaughlin, 105 Mass. 460. See Clark v. State, 86 Tenn. 511, 8 S. W. 145. So, in this commonwealth, it was held criminal to let a house to a woman of ill fame, with intent that it should be used for purposes of prostitution, although it would seem that the finding of intent meant only knowledge of the intent of the lessee. Com. v. Harrington, [p. 273] 3 Pick. 26. See Com. v. Willard, 22 Pick. 476, 478. Compare Brockway v. People, 2 Hill, 558, 562. The same has been held as to paying a man to burn a barn, whether well laid as an attempt, or more properly as soliciting to commit a felony. Com. v. Flagg, 135 Mass. 545, 549; State v. Bowers, 35 S. C. 262, 14 S. E. 488, 15 L. R. A. 199. Compare Reg. v. Williams, 1 Car. & K. 589, 1 Den. Cr. Cas. 39; McDade v. People, 29 Mich. 50, 56; Stabler v. Com., 95 Pa. St. 318; Hicks v. Com., 86 Va. 223, 9 S. E. 1024.
On the other hand, making up a false invoice at the place of exportation, with intent to defraud the revenue, is not an offense, if not followed up by using it or attempting to use it. U. S. v. Twenty-Eight Packages of Pins, Gilp. 306, 324, Fed. Cas. No. 16,561; U. S. v. Riddle, 5 Cranch, 311, 3 L. Ed. 110. So, in People v. Murray, 14 Cal. 159, the defendant's elopement with his niece, and his requesting a third person to bring a magistrate to perform the marriage ceremony, were held not to amount to an attempt to contract the marriage. But the ground on which this last decision was put clearly was too broad. And, however it may be at common law, under a statute like ours, punishing one who attempts to commit a crime, 'and in such attempt does any act towards the commission of such offense' (Pub. St. c. 210, § 8), it seems to be settled elsewhere that the defendant could be convicted on evidence like the present. People v. Bush, 4 Hill, 133, 134; McDermott v. People, 5 Parker, Cr. R. 102; Griffin v. State, 26 Ga. 493; State v. Hayes, 78 Mo. 307, 316. See Com. v. Willard, 22 Pick. 476. People v. Bush is distinguished in Stabler v. Com., as a decision upon the words quoted, 95 Pa. St. 322.
Under the cases last cited, we assume that there was evidence of a crime, and perhaps of an attempt. The latter question we do not decide. Nevertheless on the pleadings a majority of the court is of opinion that the exceptions must be sustained. A mere collection and preparation of materials in a room for the purpose of setting fire to them, unaccompanied by any present intent to set the fire, would be too remote. If the accused intended to rely upon his own hands to the end, he must be shown to have had a present intent to accomplish the crime without much delay, and to have had this intent at a time and place [p. 274] where he was able to carry it out. We are not aware of any carefully considered case that has gone further than this. We assume, without deciding, that that is the meaning of the indictment; and it would have been proved if, for instance, the evidence had been that the defendant had been frightened by the police as he was about to light the candle. On the other hand, if the offense is to be made out by showing a preparation of the room, and a solicitation of some one else to set the fire, which solicitation, if successful, would have been the defendant's last act, the solicitation must be alleged as one of the overt acts. It was admissible in evidence, on the pleadings as they stood, to show the defendant's intent, but it could not be relied on as an overt act unless set out. The necessity that the overt acts should be alleged has been taken for granted in our practice and decisions (see, e. g., Com v. McLaughlin, 105 Mass. 460, 463; Com. v. Shedd, 140 Mass. 451, 453, 5 N. E. 254; Com. v. Sherman, 105 Mass. 169), and is expressed in the forms and directions for charging attempts appended to St. 1899, c. 409, §§ 2, 28 (Com. v. Clark, 6 Grat. 675; State v. Colvin, 90 N. C. 717). The solicitations were alleged in McDermott v. People. In New York it was not necessary to lay the overt acts relied upon. Mackesey v. People, 6 Parker, Cr. R. 114, 117, and New York cases supra. See 3 Enc. Pl. & Prac., 'Attempts,' 98. A valuable collection of authorities concerning the crime will be found under the same title in 3 Am. & Eng. Enc. Law (2d Ed.). If the indictment had been properly drawn, we have no question that the defendant might have been convicted.