100 FEDERAL REPORTER. �the point that unsuitability of means is not hy itself a defence to an indict- ment for an attempt, it is sustained by numeroua adjudications of our courts. Reg V. St. George, 9 G. & P. 483; Rex v. Lallement, 6 Cox, G. G. 204; Reg v. Cludway, 1 Den, G. G. 515; 2 G. & K. 907; Com. v. MoBonaid, 5 Cash. 365; O'Leary v. People, 4 Parker, G. E. 187 ; Slatterly v. People, 58 N. Y. 354, and other cases cited ; Whart. Grim. Law, (8tii Ed.) § 182. See, particularly, KunMe V. State, 32 Ind. 220 ; Johnson v. State, 26 Ga. 611 ; Muiien v. State, 45 Ala. 43 ; State V. Napper, 6 Nev. 451 ; State v. Utley, 82 N. C. 5^6; State v. Milsaps, Id. 5i9. And tins is right. If we should bold that there eau bo no conviction for attempts with unsuitable instruments there could be few convictions for attempts, since there are few attempts of which we could say that the instru- ments to be used were absolutely suitable. But to this there are two excep- tions: (1) Where a statute says that an offence with a particular instrument is to have an especial punishment, then under this statute, to sustain a con- viction, it must be shown that the instrument designated was used. (2) The instrument, at common law, must be one apparently calculated to produce the attempted criminal resuit. If the ofiEender takes aim with a sunflower, or with Sk violin, he caunot be charged with attempting to shoot with a gun. But if he takes aim with a gun whose powder is wet, while the instrument is as innocuous as would be the sunflower or the violin, he is, nevertheless, chargeable with the attempt to shoot with the gun. See Blake v. Bamard, 9 G. & P. 626; Reg v. James, 1 C. & K. 530; Tarver v. State, 43 Ala. 354; Rol- inson v. State, 32 iex. 65. It is true that if the party threatened knows that the gun is not loaded, or is loaded in such a way as to be absolutely inef- fective, then the offence cannot be considered as an attempt, or as an assault with intent to kill. Crumhley v. State, 61 Ga. 582. But if the instrumevit is apparently calculated to do harm, and is used in such a way as to make it effective if it is what it seems, then, in the anxiety ereated, and iii the prov- ocation to retaliation it involves, the constituents of an indictable offence are made out. �Fkancis Whaeton. ��� �
