All the authorities hold that, in order to constitute an attempt, the act attempted must be a possibility. The statute provides (Section 7259 C.G.L., 5156 R.G.S.) that — "whoever falsely personates or represents another, and in such assumed character receives any property intended to be delivered to theparty so personated, with intent to convert the same to his own use, shall be punished as if he had been convicted of larceny."
Under this statute, as I construe it, no violation of it is legally or factually possible of commission unless there is in existence at the time of the false personation "property intended to be delivered to the party so personated."
The information in this case negatives the idea that the Western Union Telegraph Company, named in the information as the object of defendant's attempt (Section 7544 C.G.L., 5403 R.G.S.), was possessed of any money or property "intended to be delivered" to the falsely personated Glenn R. Reed. Therefore the felony defined and denounced by Section 7259 C.G.L., supra, was legally impossible of consummation by the accused had the Western Union Telegraph Company never suspected that defendant was falsely personating Reed, whereas his real identity was William A. Taylor. So what the defendant did was merely preparation to make an attempt, and not an attempt in the legal sense contemplated by Section 7544 C.G.L., as criminally punishable.
Section 7552 C.G.L., 5409, R.G.S., for example, defines an offense that can only be committed by a man with a woman. If the holding in this case prevails, then a man can be legally punished under 7544 C.G.L., for an attempt to violate Section 7552 C.G.L., with a sixteen old boy disguised *Page 410 as a woman, and thought by him to be a woman, merely because he commits some overt act looking toward the completion of the offense with another whom he believes to be a woman and which would be capable of consummation if the other party were a woman, although the consummation of the attempted and intended offense would obviously be impossible of being committed in fact or in law under such circumstances.
If there were any punishable attempt in this case to violate Section 7259 C.G.L., supra, by falsely personating Glenn R. Reed, as alleged, the attempt, if any, was directed no farther than the addressee of the telegram and not the Western Union Telegraph Company. At no time was the Western Union Telegraph Company in position to pay, nor willing to pay, to Glenn R. Reed himself, had he not been falsely personated, the $250.00 mentioned in the information, because, so far as appears from such information, the Western Union Telegraph Company has never, from the inception until the frustration of the so called attempt, been possessed of any money "intended to be delivered to" Glenn R. Reed, the person alleged to have been attempted to be falsely impersonated as the proposed object of delivery of that sum of money had he (Reed) been present to receive it.
I think the information wholly fails to charge a violation of Section 7544 C.G.L., supra, when tested according to the most liberal rule of constitution that prevails when collaterally attacked on habeas corpus.
Under Section 7259 C.G.L., the gist of the crime there described is the obtaining of property then and there intended tobe delivered to the person falsely personated. It is not the false personation itself. False personation alone without obtaining any property by reason of it, is not a violation *Page 411 of Section 7259 C.G.L., and so it is that the gist of any punishable attempt to commit a violation of Section 7259 C.G.L., by falsely personating another to obtain money intended to be delivered to the impersonated person, must consist of some attempt to obtain money intended to be delivered to the party personated if his personation is believed, and not a mere attempt to falsely personate. This is so, because false personation itself, without more, is not a crime under Section 7259, C.G.L. So a mere attempt at false personation cannot be a crime.
ELLIS, C.J., concurs.
