There is one doubtful point which should not be passed over. It
has been thought that to shoot at a block of wood thinking it to
be a man is not an attempt to murder, /1/ and that to put a hand
into an empty pocket, intending to pick it, is not an attempt to
commit larceny, although on the latter question there is a
difference of opinion. /2/ The reason given is, that an act which
could not have effected the crime if the actor had been allowed
to follow it up to all results to which in the nature of things
it could have led, cannot be an attempt to commit that crime when
interrupted. At some point or other, of course, the law must
adopt this conclusion, unless it goes on the theory of
retribution for guilt, and not of prevention of harm.
But even to prevent harm effectually it will not do to be too
exact. I do not suppose that firing a pistol at a man with intent
to kill him is any the less an attempt to murder because the
bullet misses its aim. Yet there the act has produced the whole
effect possible to it in the [70] course of nature. It is just as
impossible that that bullet under those circumstances should hit
that man, as to pick an empty pocket. But there is no difficulty
in saying that such an act under such circumstances is so
dangerous, so far as the possibility of human foresight is
concerned, that it should be punished.
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