George Lee Mims, Sr., Appellant, v. United States of America, Appellee, 375 F.2d 135 (5th Cir. 1967)

Davis v. United States, 160 U.S. 469, 496, 16 S. Ct. 353, 40 L. Ed. 499, 505 (1895); Dusky v. United States, 8 Cir., 295 F.2d 743, 754 (1961), cert. den. 368 U.S. 998, 82 S. Ct. 625, 7 L. Ed. 2d 536, and cases cited

Head v. Hargrave, 105 U.S. 45, 49, 26 L. Ed. 1028, 1030 (1881); The Conqueror, 166 U.S. 110, 17 S. Ct. 510, 41 L. Ed. 937 (1896); United States for Use and Benefit of Caldwell Foundry and Machine Co. v. Texas Construction Co., 5 Cir., 237 F.2d 705 (1955); Hallabrin v. C.I.R., 6 Cir., 325 F.2d 298, 301 (1964); Dayton P. & L. Co. v. Public Utilities Comm., 292 U.S. 290, 299, 54 S. Ct. 647, 652, 78 L. Ed. 1267, 1275 (1933); Fox River Paper Corp. v. United States, 7 Cir., 165 F.2d 639 (1948); Sartor v. Arkansas Nat. Gas Corp., 321 U.S. 620, 627, 64 S. Ct. 724, 728, 88 L. Ed. 967, 972 (1943); Carpenter v. United States, 4 Cir., 264 F.2d 565 (1959); United States v. Cain, 7 Cir., 298 F.2d 934 (1962); Feguer v. United States, 8 Cir., 302 F.2d 214, 242 (1962); Holm v. United States, 9 Cir., 325 F.2d 44 (1963); Dusky v. United States, 8 Cir., 295 F.2d 743 (1961), cert. den. 368 U.S. 998, 82 S. Ct. 625, 7 L. Ed. 2d 536; Fitzhugh v. State, 35 Ala.App. 18, 43 So. 2d 831, cert. den. 253 Ala. 246, 43 So. 2d 839, cert. den. 339 U.S. 986, 70 S. Ct. 1007, 94 L. Ed. 1388 (1950); Smith v. Smith, 254 Ala. 404, 48 So. 2d 546, 551; Burdine v. Partee Flooring Mill, 218 Ark. 60, 234 S.W.2d 193 (1950); People v. Williams, 151 Cal. App. 2d 173, 311 P.2d 117, cert. den. 355 U.S. 961, 78 S. Ct. 547, 2 L. Ed. 2d 535 (1957); McWilliams v. Garstin, 70 Colo. 59, 197 P. 246 (1921); Chazen v. City of New Britain, 148 Conn. 349, 170 A.2d 891, 893 (1961); Clark v. Haggard, 141 Conn. 668, 669, 109 A.2d 358, 54 A.L.R.2d 655 (1954); Taylor v. Taylor, Fla.App., 119 So. 2d 811, 813 (1960); Buckhanon v. State, 151 Ga. 827, 108 S.E. 209, 212 (1921); Childs v. Logan Motor Co., 103 Ga.App. 633, 120 S.E.2d 138, 143 (1961); Application of Big Lost River Irr. Dist., 78 Idaho 591, 307 P.2d 788, 790 (1957); People v. Harvey, 286 Ill. 593, 122 N.E. 138; Clark v. Lucas Co. Bd. of Review, 242 Iowa 80, 44 N.W.2d 748, 754 (1951); Denman v. Colorado Interstate Gas Co., 179 Kan. 180, 294 P.2d 207, 210 (1929); G. & H. Cattle Co. v. Commonwealth, 312 Ky. 315, 227 S.W.2d 420; Louisville & N. R. Co. v. Rowland's Admr., 227 Ky. 841, 14 S.W.2d 174, 178 (1929); Bernard v. Francez, 166 La. 487, 117 So. 565 (1928); Sanborn v. Elmore Milling Co., 152 Me. 355, 129 A.2d 556 (1957); A. B. Beard & Son v. Ministrelli Constr. Co., 372 Mich. 364, 126 N.W.2d 695 (1964); Berg v. Ullevig, 244 Minn. 390, 70 N.W.2d 133, 138 (1955); Robinson v. McShane, 163 Miss. 626, 140 So. 725 (1932); State v. Quilling, 363 Mo. 1016, 256 S.W.2d 751 (1932); Sunset Acres Motel, Inc. v. Jacobs, Mo., 336 S.W.2d 473 (1940); State Board of Medical Examiners of New Jersey v. Plager, 118 N.J.L. 434, 193 A. 698 (1937); Pacifico v. Carpenter Steel Co., 44 A.2d 79, 23 N.J.Misc 309, cert. den. 134 N.J.L. 149, 46 A.2d 381, aff. 135 N.J.L. 204, 50 A.2d 894 (1945); State v. Moore, 42 N.M. 135, 76 P.2d 19, 34 (1938); Commercial Cas. Ins. Co. v. Roman, 269 N.Y. 451, 199 N.E. 658 (1936); Hodges v. State, 16 Okl.Cr. 183, 182 P. 260; Equitable Life Assur. Soc. of U. S. v. Neale, Okl., 258 P.2d 654, 658 (1953); Vey v. State, 35 Ohio App. 324, 172 N.E. 434; Lovich v. Salvation Army, 81 Ohio App. 317, 75 N.E.2d 459, 561 (1947); State v. Leland, 190 Or. 598, 227 P.2d 785, aff. 343 U.S. 790, 72 S. Ct. 1002, 96 L. Ed. 1302; City of Portland v. Ruggero, 231 Or. 624, 373 P.2d 970, 973 (1962); Ray, to Use of Miller v. City of Philadelphia, 344 Pa. 439, 25 A.2d 145, 146 (1942); Cardall v. Shartenberg's, Inc., 69 R.I. 97, 31 A.2d 12, 16 (1943); Thompson v. Atlantic Coast Line R. Co., 113 S.C. 261, 102 S.E. 11 (1920); Gustafson v. Gate City Co-op Creamery, 80 S.D. 430, 126 N.W.2d 121 (1964); Casteel v. Southern Ry. Co., 187 Tenn. 586, 216 S.W.2d 321 (1948); O'Keefe v. State, 145 Tex.Cr.R. 349, 167 S.W.2d 1035 (1942); Kelly v. Industrial Comm. of Utah, 80 Utah 73, 12 P.2d 1112 (1932); State v. Putzell, 40 Wash. 2d 174, 242 P.2d 180 (1952); Richey & Gilbert Co. v. Northwestern Nat. Gas Corp., 16 Wash. 2d 631, 134 P.2d 444, 453 (1943); Miracle v. Barker, 59 Wyo. 92, 136 P.2d 678, 684 (1943); Webb v. Chesapeake & O. Ry. Co., 105 W.Va. 555, 144 S.E. 100 (1928); Washburn v. Skogg, 204 Wis. 29, 233 N.W. 764, 769, 235 N.W. 437 (1930); 7 Wigmore on Evidence, 3d ed. # 1920, p. 18; 11 R.C.L. # 536, 24 Am.Jr., p. 1059; Weihofen, Mental Disorder as a Criminal Defense, p. 290.

Head v. Hargrave, supra, note 2

The Conqueror, supra, note 2

Leland v. State of Oregon, 343 U.S. 790, 800, 72 S. Ct. 1002, 96 L. Ed. 1302, at 1310 (1951); McDonald v. United States, 114 U.S.App.D.C. 120, 312 F.2d 847, at 861

The two quotations in this footnote are taken from dissenting opinions, but there appears to have been no disagreement between the majority and the minority over the statements quoted

Mr. Justice Frankfurter, in Leland v. State of Oregon, supra, note 5, 343 U.S. at 803, 72 S. Ct. at 1009, 96 L. Ed. at 1311, said:

"* * * One does not have to echo the scepticism uttered by Brian, C. J., in the fifteenth century, that `the devil himself knoweth not the mind of men' to appreciate how vast a darkness still envelops man's understanding of man's mind. Sanity and insanity are concepts of incertitude. They are given varying and conflicting content at the same time and from time to time by specialists in the field. Naturally there has always been conflict between the psychological views absorbed by law and the contradictory views of students of mental health at a particular time. * * *"

Chief Judge Miller in McDonald v. United States, 114 U.S.App.D.C. 120, 312 F.2d 847, 861, said:

"The rulings to which I refer have become especially necessary because of the frequent alteration and expansion of the definition of `mental disease' by those experts who appear most frequently as witnesses in this jurisdiction. They suddenly reclassified psychopathic (sociopathic) personality as a mental disease in In re Rosenfield, 157 F. Supp. 18 (D.D.C. 1957); they reclassified emotionally unstable personality as a mental disease in Campbell v. United States, supra; they reclassified narcotics addiction as a mental disease in United States v. Carroll, Criminal No. 383-62 (D.D.C. June 28, 1962) and United States v. Horton, Criminal No. 59-62 (D.D.C. July 12, 1962). I think it obvious that the new classifications were made by the doctors for clinical purposes only, for demonstration is not needed to make it plain that these conditions newly called `mental diseases' are not such in the legal sense. Until now, this court has allowed the shifting wind of expert nonenclature to control its decisions." (Emphasis added).

General Principles of Criminal Law, 2d ed., p. 455, et seq. (1960), by Hall, Distinguished Service Professor of Law, Indiana University. The following is quoted from pp. 464-465:

"In the first place, a criminal trial, while it ought to use the best available knowledge, is not a scientific inquiry or an experiment in a clinic. For reasons which have long been persuasive, it is an adversarial investigation. The psychiatrists' work does not call upon them to decide whether their patients should or could have acted differently than they did, whether, i. e. they had the capacity to conform. But it is precisely this question which does make sense in everyday life; and it is the central issue in the trial. In many scientific inquiries a preponderance of the evidence suffices, and majority opinion among the elite prevails. In a criminal trial, because of the human values at stake, the jury must be convinced beyond any reasonable doubt, and they must be unanimous in their verdict. It is also rather widely believed that experts are prone to decide not on the evidence but `almost always on their own private opinion of the subject-matter.' Disagreement is frequent even among experts in well-established sciences. Disagreement among psychiatrists is to be expected; indeed, a lack of disagreement would raise doubts regarding their integrity or competence. Psychiatrists can defer their acceptance of any proffered theory or interpretation indefinitely and the thorough diagnosis of a single patient may take a year or longer; in a criminal trial definite decisions must be reached within a short time.

"Moreover, the question of mental disease, viewed as a legal issue, cannot be separated from other legally material issues; hence, unless the entire body of relevant law were completely abandoned, it would still be necessary to have a jury or judge to interpret what the experts found and how that affected mens rea and the other issues. The criminal trial seeks to ascertain whether the accused had the normal competence to make a moral decision; many psychiatrists insist that they know nothing about this sort of question. There are also sound reasons of policy, implemented by constitutional guarantees, for the retention of trial by judge or jury; and a basic postulate in a democratic society is the avoidance of government by experts in crucial areas of law-making and adjudication."

See also Carter v. United States, 102 U.S.App.D.C. 227, 252 F.2d 608, 617 (1957), and McDonald v. United States, supra, note 5, 312 F.2d at p. 851.

Carter v. United States, 102 U.S.App. D.C. 227, 252 F.2d 608 (1957); Carter v. United States, 5 Cir., 325 F.2d 697, 706; Gleuck,Mental Disorder and the Criminal Law, pp 33, 34; Hall, Psychiatry and Criminal Responsibility, 65 Yale L.J. 761 (1957).

Carter v. United States, supra, note 8, at p. 615 of 252 F.2d

Fisher v. United States, 328 U.S. 463, 66 S. Ct. 1318, 90 L. Ed. 1382 (1945); Smith v. United States, 9 Cir., 267 F.2d 210 (1959); Lee v. Wiman, 5 Cir., 280 F.2d 257, 265 (1960); Feguer v. United States, supra, note 2; Hall,Psychiatry and Criminal Responsibility, supra, note 8, who says at p. 767: "It is a fact that among those who are held legally responsible there may yet be various degrees of mental impairment."

Davis v. United States, 160 U.S. 469, 484, 16 S. Ct. 353, 40 L. Ed. 499 (1895); on second appeal, 165 U.S. 373, 17 S. Ct. 360, 41 L. Ed. 750 (1897); United States v. Currens, 3 Cir., 290 F.2d 751, 762 (1961); McDonald v. United States, supra, note 7

The following is quoted from the majority opinion at page 851 of 312 F.2d in the McDonald case:

"We emphasize that, since the question of whether the defendant has a disease or defect is ultimately for the triers of fact, obviously its resolution cannot be controlled by expert opinion. The jury must determine for itself, from all the testimony, lay and expert, whether the nature and degree of the disability are sufficient to establish a mental disease or defect as we have now defined those terms. What we have said, however, should in no way be construed to limit the latitude of expert testimony. Carter v. United States, 102 U.S.App.D.C. 227, 236, 252 F.2d 608, 617." (Emphasis added).

Feule v. Parsons, 160 Iowa 454, 141 N.W. 1049; Miracle v. Barker, supra, note 2

Carter v. United States, 102 U.S.App. D.C. 227, 252 F.2d at page 617, supra, note 8

Application of Big Lost River Irr. Dist., supra, note 2

Rhodes v. State, 232 Ala. 509, 168 So. 869; Pickett v. State, 37 Ala.App. 410, 71 So. 2d 102, 106, cert. den. 260 Ala. 699. 71 So. 2d 107; Buckhanon v. State, 151 Ga. 827, 829, 108 S.E. 209, 212

W. Horace Williams Company v. Serpas, 5 Cir., 261 F.2d 857, 860 (1957); Gendelman v. United States, 9 Cir., 191 F.2d 993 (1951), cert. den. 342 U.S. 909, 72 S. Ct. 302, 96 L. Ed. 680; Martin v. United States, 109 U.S.App.D.C. 83, 284 F.2d 217 (1960); Carter v. United States, 102 U.S. App.D.C. 227, 252 F.2d 608; Carpenter v. United States, 4 Cir., 264 F.2d 565, at p. 570 (1959); Tri-Angle Club, Inc. v. United States, 8 Cir., 265 F.2d 829, 832 (1959); Clark v. Lucas County Board of Review, supra, note 2; People v. Williams, supra, note 2

The following quotations are taken from the cases just cited:

Serpas: Chief Judge Tuttle said that there could be no dispute as to the correctness of the proposition that, "the value of the opinion of an expert witness is dependent on and is no stronger than the facts upon which it is predicated, and it has no probative force unless the premises upon which it is based are shown to be true * * *." 261 F.2d p. 860.

Carter: "* * * The chief value of an expert's testimony in this field (insanity defense), as in all other fields, rests upon the material from which his opinion is fashioned and the reasoning by which he progresses from his material to his conclusion * * *." 252 F.2d p. 617.

Carpenter: "If the facts [upon which doctors based an opinion as to temporary insanity] were not what the doctors supposed, their opinions were baseless and of no evidentiary value * * *" 264 F.2d p. 570, and

"* * * (T)he expressed opinions could be tested by the jury in the light of their (the experts) factual assumptions." p. 571.

Carter v. United States, 102 U.S.App. D.C. 227, at p. 617 of 252 F.2d, supra, note 8. This ground would, of course, include the expert's incompetency to evaluate the facts in the particular field involved. Dayton Power & Light Co. v. Public Utilities Commission, 292 U.S. 290, 299-300, 54 S. Ct. 647, 652, 78 L. Ed. 1267, 1275 (1933); Morris v. United States, D.C.Tex. 217 F. Supp. 220, 228 (1963). For instance, in the Morris case, the expert's lack of understanding of the legal principles involved in certain extraneous litigation caused him to make an incorrect evaluation of the subject's delay in bringing a divorce case to trial.

Dayton Power & Light Co. v. Public Utilities Commission, supra, note 17

Holm v. United States, 9 Cir., 325 F.2d 44 (1963); Hallabrin v. C.I.R., supra, note 2, at p. 301 of 325 F.2d

Dayton Power & Light Co. v. Public Utilities Commission, supra, note 17; Fox River Paper Corp. v. United States, 7 Cir., 165 F.2d 639, 640 (1948); Martin v. United States, supra, note 16

Carpenter v. United States, supra, note 16, at p. 571 of 264 F.2d

Brouillard v. S.S. Kresge Co., D.C.Wis., 41 F. Supp. 945, 946 (1941); Johnson v. Great Northern Ry. Co., 107 Minn. 285, 119 N.W. 1061; Panko v. Grimes, 40 N.J.Super. 588, 123 A.2d 799; Terry Dairy Products Co. v. Cash, 224 Ark. 576, 275 S.W.2d 12; 32 C.J.S. Evidence § 569(3) p. 623

Johnson v. Johnson, N.D., 104 N.W.2d 8, 82 A.L.R.2d 1029, 1038 (1960); In re Bottger's Estate, 14 Wash. 2d 676, 129 P.2d 518; Dowling v. Luisetti, 351 Mo. 514, 173 S.W.2d 381

State Board of Medical Examiners of New Jersey v. Plager, 118 N.J.L. 434, 193 A. 698 (1937)

Martin v. United States, supra, note 16, at p. 220 of 284 F.2d; Holm v. United States, supra, note 19; Morris v. United States, supra, note 17, at p. 229 of 217 F.Supp

The rationality, relevancy and coherence of the appellant's statements to the psychiatrists during the examinations is included in this statement, as, in psychiatric examinations, the patient's utterances "are taken as evidence of bodily characteristics." Weihofen,Mental Disorder as a Criminal Defense, p. 294. The appellant's answers and statements during each examination were rational, relevant and coherent.

The term "common-law wife" is used in the loose, lay sense. It is recognized that there could be no valid common marriage while she was still married to Mr. Stone

The following are some of the facts not known to any of the experts:

(1) The appellant's elaborate plan to escape detection after the robbery, and his efforts during the several hours immediately following the occurrence at the bank to avoid detection.

(2) His conduct at the time he was apprehended.

It is well recognized that a criminally irresponsible person may make an elaborate and cunning plan for committing a crime. However, psychiatrists consider that plans to avoid detection after the crime and conduct at the time of apprehension may shed important light on whether the accused knew his conduct was wrong. Forensic Psychiatry (1965), 2d ed, pp. 13-14, by Davidson, M.D., Fellow, American Psychiatry Association, says:

"* * * Where the act was planned, it is necessary to determine whether:

a) The plan was aimed at certainty that the act would be committed; or

b) The plan was drawn up to avoid detection."

"The psychiatrist ought to be told of the circumstances of the apprehension, since this may throw considerable light on the offender's general state of mind and of his evaluation of the wrongfulness of his acts."

(3) Appellant's statement when he was stopped by Patrolman Jones about an hour after the incident at the bank that a person would have to be crazy to attempt to rob a bank. In Birdsell v. United States, 5 Cir., 346 F.2d 775, 779, 781 (1965), cert. den. 382 U.S. 963, 86 S. Ct. 449, 15 L. Ed. 2d 366, this Court recognized that statements of an accused indicating that he was thinking of insanity as an explanation for his crime were a proper factor to consider on whether he was acting in good faith with the psychiatrist during his examination.

The Birdsell case, supra, note 28, in speaking of the inconclusiveness of a diagnosis based on a psychiatric examination that was performed in two hours, said at p. 781: "* * * Dr. Good's diagnosis was reached so quickly that the jury could well have thought he had jumped to a conclusion."

The Birdsell case, supra, note 28, at p. 781 says: "* * * It was undisputed that Birdsell was emotionally disturbed. But whether the instability was so severe as to render him insane in the relevant sense during the six months period when he was conspiring to transport stolen automobiles was an issue for the jury to determine under proper instructions, here given in the form approved in Davis v. United States, 160 U.S. 469, 16 S. Ct. 353, 40 L. Ed. 499 (1895); 165 U.S. 373, 17 S. Ct. 360, 41 L. Ed. 750 (1897). * * *"

The appellant argues that his plan was bizarre because he implicated his own son and some other teen-agers, and because of the general scheme of it. The extent to which amateurishness and ignorance contributed to the bizarreness was a fact issue. While crimes resulting in direct and intentional injury to members of the family of an accused are subject to close scrutiny, the bearing of the nature of the crime on his sanity is usually a question of fact. Fitzhugh v. State, 35 Ala.App. 18, 43 So. 2d 831, cert. den. 253 Ala. 246, 43 So. 2d 839, cert. den. 339 U.S. 986, 70 S. Ct. 1007, 94 L. Ed. 1388 (parent murdered own child); Roberts v. State, 210 Miss. 777, 50 So. 2d 356 (grandfather murdered granddaughter); Brock v. State, Fla., 69 So. 2d 344 (father murdered son); Mott v. State, 94 Okl.Cr. 145, 232 P.2d 166 (drunk father murdered daughter); State v. Lucas, 30 N.J. 37, 152 A.2d 50 (church member set fire to his church rectory resulting in deaths of several people); People v. Reade, I N.Y.2d 459, 154 N.Y.S.2d 27, 136 N.E.2d 497 (defendant murdered sister-in-law and her young daughter); Noelke v. State, 214 Ind. 427, 15 N.E.2d 950 (father killed child while shooting at wife)

Carter v. United States, 102 U.S.App. D.C. 227, 252 F.2d 608; Carpenter v. United States; Dusky v. United States, and Feguer v. United States, all supra, note 2; Birdsell v. United States, supra, note 28; Brown v. United States, 5 Cir., 351 F.2d 473 (1965)

Douglas v. United States, 99 U.S.App. D.C, 232, 239 F.2d 52 (1956); Wright v. United States, 102 U.S.App.D.C. 36, 250 F.2d 4 (1957); Fielding v. United States, 102 U.S.App.D.C. 167, 251 F.2d 878 (1957); McKenzie v. United States, 10 Cir., 266 F.2d 524 (1959); Satterwhite v. United States, 105 U.S.App.D.C. 398, 267 F.2d 675 (1959); Pollard v. United States, 6 Cir., 282 F.2d 450 (1960); United States v. Westerhausen, 7 Cir., 283 F.2d 844 (1960); Fitts v. United States, 10 Cir., 284 F.2d 108 (1960); Isaac v. United States, 109 U.S. App.D.C. 34, 284 F.2d 168 (1960); Argent v. United States, 5 Cir., 325 F.2d 162 (1963)

We realize and take into consideration that a statement of a patient during a psychiatric examination could possibly be an objective symptom when it is evaluated as to directness, relevancy and coherency, and as to evidence of the inner drives and conflicts of the patient. But the situation is different where the statements are narrative in nature and their value is dependent upon the truth of them

Government of Virgin Islands v. Smith, 3 Cir., 278 F.2d 169, 174 (1960)

Cook v. United States, 5 Cir., 320 F.2d 258 (1963); United States v. Haynes, 2 Cir., 291 F.2d 166 (1961); United States v. Grosso, 3 Cir., 358 F.2d 154 (1966); Ramsey v. United States, 8 Cir., 332 F.2d 875 (1964); Lohmann v. United States, 9 Cir., 285 F.2d 50, 51 (1960)

Mann v. United States, 5 Cir., 319 F.2d 404, 410 (1963); Williamson v. United States, 5 Cir., 332 F.2d 123 (1964), and cases cited in footnote 12 thereof on p. 132; United States v. Raub, 7 Cir., 177 F.2d 312 (1949)

United Brotherhood of Carpenters & Joiners of America v. United States, 330 U.S. 395, 408, 67 S. Ct. 775, 91 L. Ed. 973 (1947); Montford v. United States, 5 Cir., 271 F.2d 52 (1959)

Brooks v. United States, 5 Cir., 240 F.2d 905 (1957); Roe v. United States, 5 Cir., 287 F.2d 435, 440 (1961); United States v. Manuszak, 3 Cir., 234 F.2d 421 (1956); United States v. McKenzie, 6 Cir., 301 F.2d 880 (1962); United States v. Raub, supra, note 37

Sayre,Criminal Attempts (1928), 41 Harv. L. Rev. 821; Arnold, Criminal Attempts — The Rise and Fall of an Abstraction (1930), 40 Yale L.Journ. 53; Hall, Criminal Attempt — A Study of Foundations of Criminal Liability, 49 Yale L. Journ. 789; Keedy, Criminal Attempts at Common Law (1954), 102 Pa.L.Rev. 464; Smith, Two Problems in Criminal Attempts (1957), Harv. L. Rev. 422; Wesholer, Jones & Korn, The Treatment of Inchoate Crimes in the Model Penal Code of the American Law Institute: Attempt, Solicitation and Conspiracy, 61 Colum. L. Rev. 571, 573 (1961); United States v. Coplon, 2 Cir., 185 F.2d 629, 633, 28 A.L. R.2d 1041 (1955), cert. den. 342 U.S. 920, 72 S. Ct. 362, 96 L. Ed. 688; United States v. Butler, D.C.S.D.N.Y., 204 F. Supp. 339, 343 (1962); People v. Sullivan, 173 N.Y. 122, 65 N.E. 989, 63 L.R.A. 353; People v. Werblow, 241 N.Y. 55, 148 N.E. 786, 789; Commonwealth v. Kennedy, 170 Mass. 18, 48 N.E. 770; Commonwealth v. Peaslee, 177 Mass. 267, 59 N.E. 55; State v. Doran, 99 Me. 329, 59 A. 440, 441, 105 Am.St.Rep. 278; State v. Schwarzbach, 84 N.J.L. 268, 86 A. 423; Groves v. State, 116 Ga. 516, 42 S.E. 755, 756, 59 L.R.A 598; State v. Mandel, 78 Ariz 226, 278 P.2d 413, 415; People v. Buffum, 40 Cal. 2d 709, 256 P.2d 317, 321; People v. Camodeca, 52 Cal. 2d 142, 338 P.2d 903, 906.

The common law test is discussed in the Coplon case, and the one suggested by the A.L.I. Model Penal Code is reviewed in the Butler case.

The Buffum case states a test that has been frequently approved: "* * * Preparation alone is not enough, there must be some appreciable fragment of the crime committed, it must be in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attempter, and the act must not be equivocal in nature. * * *" (Emphasis added.)

Wooldridge v. United States, 9 Cir., 237 F. 775 (1916); Gregg v. United States, 8 Cir., 113 F.2d 687, 690 (1940); Giles v. United States, 9 Cir., 157 F.2d 588, 590 (1946); United States v. Coplon, supra, note 40; Lemke v. United States, 9 Cir., 211 F.2d 73, 14 Alaska 587 (1954), cert. den. 347 U.S. 1013, 74 S. Ct. 866, 98 L. Ed. 1136; United States v. Baker, D.C.S.D. Cal., 129 F. Supp. 684 (1955); United States v. Robles, D.C. N.D. Cal., 185 F. Supp. 82, 85 (1960); United States v. Butler, supra, note 40

Cases involving attempt to evade federal taxes are not included because they involve a different question. The attempt is usually successful, at least for a while, in those cases, while an essential element of the ordinary attempt offense is that the object intended was not accomplished.

The Gregg case, at p. 690 of 113 F.2d, approves that test laid down by Cardozo, Jr., in the Werblow case, supra, note 40, "* * * The act must `carry the project forward within dangerous proximity to the criminal end to be attained'. * * *"

The Coplon case, at p. 633 of 185 F.2d, quoted with approval the following from the opinion of Holmes, J., in the Peaslee case, supra, note 40: "`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.'"

In discussing the same question in the Kennedy case, supra, note 40, Holmes, J., said: "* * * Every question of proximity must be determined by its own circumstances, and analogy is too imperfect to give much help. * * *"