By the Court, KNOX, J The indictment upon which the defendant was convicted at the MonroeSessions, in 1859, and sentenced to be imprisoned in theState prison at Auburn for three years, contains four countS The first andSecond allege that the defendant " did attempt, unlawfully and feloniously, toSet fire to and burn a certain barn," &c ; and the third and fourth charge that "the defendant did, unlawfully, falsely and maliciously,Solicit and incite one Henry McDonnell, un- lawfully, &c, toSet fire to the barn," &c On the trial, it was proved that the barn mentioned was on a farm owned and occupied by one Davison, with whom the prisoner had had much difficulty ; that a barn had previously been burned on theSame premises, and that the defendant went to McDonnell andSaid to him that " the place of Davi- son gave him a great deal of trouble, and he wished to get some one to burn it up ; heSaid if I would burn the place he would give me the deeds and assign over all his right and title to me of the place ; when heSpoke of burning, he used the word ' building ' or ' premises ; ' heSaid he had camphene and other combustibles in his room ; heSaid if I would go out there he would furnish a horse and buggy to bring me back ; heSaid it would be hitched orStanding at a gate about the premises, on the Paddy Hill road,"etc The principal question is, did the evidenceSupport either count in the indictment ? or, toState it more precisely, can a person be convicted properly, under this evidence, of the offense mentioned in the followingSection of theStatute? u Every person whoShall attempt to commit an offense pro- hibited by law, and inSuch attemptShall do any act toward the commission ofSuch offense, butShall fail in the perpetra- tion thereof, andShall be prevented or intercepted in executing theSame,Shall be, upon conviction, punished," &c (3 R, 5th ed, p 583,Sec 3 ; 2 RS, 1st ed, 698)Were it not for the elaborate and learned brief which the defendant's counsel has furnished, IShould not hesitate a moment toSay that the conviction was right, andSustained by the case of The Peopk v Bush, 4= Hill R, 133 But, as the soundness of the opinion in that case is questioned, it may not be unprofitable to examine the question here, in the light of reason, as well as authoritY The two important and essential facts to be established to convict a person of an offense, are, first, an intent to commit the offense ; and,Second,Some overt act consequent upon that intent toward its commissionSo long as the act rests in bare intention, it is not punishable ; cogitationis pcenam nemo patituRIt is only when the thought manifests itself by an outward act in or toward the commission of an offense, that the law intervenes to punisH As we cannot look into the mind toSee the intent, it must, of necessity, be inferred from the nature of the act done, and if that be unlawful, a wicked intent will bo presumed These are fundamental legal principleS Now, applied to the facts of this case, what do we find ? We find that the defendant intended to commit the crime of arson ; indeed, he had committed the offense " already in his heArt" What were the overt acts toward the commission ? He had prepared camphene and other combustibles, and had them in his room, and then he went aStep further andSolicted McDon- nell to use those combustibles to burn the building, promising him, if he would doSo, to " give him the deeds of the place, and assign to him his right in theSaMe" We have, then, the fixed design of the defendant to burn this barn, and overt acts toward the commission of the offense, and a failure in the perpetration of it.

The offense, then, is fully made out, for the intent to do the wrongful act, coupled with the overt acts toward its commission, constitutes the attemptSpoken of by theStatute.

There are one or two other questions raised by the defend- ant, but I consider them, and it is evident that his counsel does, of no moment.

The conviction was right, andShould be affirmed On the trial of a prisoner for attempting to discharge a pistol with the intent to kill, &c, under 2 JRS, 665, 36, the prisoner's counsel requested the judge to charge "that the pointing of an uncocked Colt's revolver at a person is not an attempt to discharge the weapon," and the judge refusedSo to charge, and charged that it was a question of fact for the jury to decide, and not a ques- tion of law for the decision of the court ; Held, that the ruling of the judge was erroneous, and the prisoner, having been convicted, the judgment was reversed on writ of error, and a new trial ordered A conviction for an attempt to discharge a pistol, under theStatute referred to, cannot be had, where the individual indicted proceeded no farther toward an actual discharge orShooting than to raise and point the pistol, uncocked, at the party threatened A threat made by the prisoner at the time would constitute no part of the attempt to discharge the pistol ; it would only be evidence of the intention of the prisoneRERROR to the Oyer and Terminer of the city and county of New York, where the plaintiff in error was tried and convicted, before MRJustice GOULD, of having attempted to discharge a loaded pistol at one Oliver, with intent to kill him, and was sentenced to four years' imprisonment in theState prison At the close of the evidence, the judge was requested by the prisoner's counsel, to charge that the pointing of an uncocked Colt's revolver at a person, is not an attempt to discharge the weapon The judge refusedSo to charge, holding that it was a matter of fact to be left to the jury, and not a question of law to be decided by the court, to which the prisoner's counsel excepted Other questions were raised on the trial, but not having been considered by the court, on review, it is unnecessary toState theM By the Court, ALLEN, J The plaintiff in error was con- victed of attempting to discharge a loaded pistol at one Oliver, with intent to kill him, andSentenced to theState prison for four years, upon which conviction, error was brought to this court.

Several questions arise upon exception to the rulings and decisions of the learned judge, in the progress of the trial, which it will not be necessary to consider, if my brethren concur with me upon the main question presented by the record The prisoner was in a common gambling house, of which Morrissey, one Dancy, and others, were proprietors, and while conversing peaceably with Dancy, was ordered out of the house by MorrisseY Not leaving in pursuance of the request, Morrissey procured the attendance of Oliver, who was one of the police officers of the city of New York, and requested him to remove the prisoner from the premiseS The prisoner refused to go, or did not leave, at the request of the officer, and the latter advanced toward him with a view to eject him from the house.