Supreme Court of California, 1859
- D was charged with attempting to contract an incestuous marriage with his niece.
- Evidence shows his determination to contract the marriage, his elopement with the niece for that avowed purpose, and his request to one of the witnesses to got for a magistrate to perform the ceremony.
Issue: Does the evidence sustain the charge of attempting to contract an incestuous marriage with his niece?
Holding: No. Evidence does not sustain this charge.
- Evidence shows the intention of the D, but something more than intention is needed to constitute the offense charged. Between the preparation for the attempt and the attempt itself there is a wide difference.
- Preparation consists of 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.
- The determination to contract the marriage, the elopement, and the request for a magistrate were preparatory to the marriage: but until the magistrate was engaged, and the parties stood before him, ready to take vows, it cannot be said that the attempt was made.
- ****The attempt contemplated by the statute must be manifested 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. (this is the probable deisistance test)
Disposition: Reversed and remanded.