Appeal from the Circuit Court of the Eighteenth Judicial
Circuit of DuPage County; the Hon. JAMES E. FITZGERALD, Judge,
presiding. Judgment of conviction affirmed.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.
The defendant, Michael Paluch, was charged, in the Circuit Court of the 18th Judicial Circuit, DuPage County, with attempting to practice barbering without a certificate of registration as a barber in violation of Ill Rev Stats 1965, ch 16 3/4, par 14.92(b)(1). The case was tried before the court without a jury and the defendant was found guilty as charged and a fine in the sum of $25 was imposed. The defendant contends that the evidence was not sufficient to sustain the judgment.
On November 5, 1965, Ernie Pinkston, an agent of the barber's union, went to a barber shop located in Glen Ellyn. It was 9:00 a.m. and the shop was not yet open. He then saw the defendant unlock the rear door and enter the shop. Shortly thereafter, he went to the front door and asked the defendant if the shop was open. The defendant unlocked the door, admitted Pinkston, walked over to the barber chair, put on his smock and offered the chair to Pinkston. The defendant had his own barber tools clipping shears, razors and combs.
Pinkston then showed the defendant his business card and asked to see his license. The defendant twice motioned to a particular license which, in fact, was not his. No one else was in the shop at the time. When later asked if he worked at the shop, the defendant answered "yes" and admitted that he had no license.
Both the defendant and the State refer to the Criminal Code of 1961, Ill Rev Stats 1965, ch 38, par 8-4(a) with reference to the elements necessary to establish the offense of an "attempt," which provides:
"A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense."
Two elements must be present to constitute an attempt: (1) an intent to commit a specific offense, and (2) an act which is a substantial step towards its commission. The defendant contends that all that can be shown by the record in this case is a mere preparation to do something, but that no act constituting a substantial step toward barbering was committed. See: The People v. Woods, 24 Ill.2d 154, 158, 180 N.E.2d 475 (1962).
As pointed out in the Committee Comments to par 8-4 of the Criminal Code of 1961 (Smith-Hurd Ann St ch 38 sec 8-4, p 357), the determination of when the preparation to commit an offense ceases and the perpetration of the offense begins, is a troublesome problem. The distinction between the preparation and the attempt is largely a matter of degree, and whether certain given conduct constitutes an actual attempt is a question unique to each particular case.
In order to constitute an attempt, it is not requisite that the act of the defendant is necessarily the last deed immediately preceding that which would render the substantive crime complete. People v. Sullivan, 173 N.Y. 122, 65 N.E. 989, 992 (1903). In Commonwealth v. Peaslee, 177 Mass. 267, 59 N.E. 55 (1901), Mr. Justice Holmes, as Chief Justice of the Supreme Judicial Court of Massachusetts, discussed the considerations necessary in determining whether there were sufficient acts to constitute an attempt to commit an offense under circumstances where further acts were required to perpetrate the offense. He there noted that the acts may then be nothing more than preparation to commit an offense which is not punishable, but also stated that given preparations may constitute an attempt, the determining factor being a matter of degree. As illustrative of this comment, his opinion at page 56 states:
"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. As was observed in a recent case, the degree of proximity held sufficient may vary with circumstances, including, among other things, the apprehension which the particular crime is calculated to excite."
The crux of the determination of whether the acts are sufficient to constitute an attempt really is whether, when given the specific intent to commit an offense, the acts taken in furtherance thereof are such that there is a dangerous proximity to success in carrying out the intent. In Hyde v. United States, 225 U.S. 347 (1911), Mr. Justice Holmes, in his dissenting opinion, at pages 387 and 388, adequately delineates the distinction between the mere preparation to commit an offense and an attempt to perpetrate the offense, in these words:
"But combination, intention and overt act may all be present without amounting to a criminal attempt as if all that were done should be an agreement to murder a man fifty miles away and the purchase of a pistol for the purpose. There must be dangerous proximity to success. But when that exists the overt act is the essence of the offence."
The language of par 8-4 of the Criminal Code, stating that there must be a substantial step toward the commission of the offense indicates that it is not necessary for an "attempt" that the last proximate act to the completion of the offense be done. In addition, the Illinois Supreme Court, has likewise considered this problem. In The People v. Woods, supra, at page 158, it stated:
"Mere preparation to commit a crime, of course, does not constitute an attempt to commit it. We feel however that an attempt does exist where a person, with intent to commit a specific offense, performs acts which constitute ...