tortion,20 or to produce abortion.21 Nor will the fact that a person employed or solicited by the accused to commit a crime, though apparently acquiescing, did not intend to commit it, prevent the accused from being guilty of an attempt.22 § 157. Effect of consummation of intended crime. As we have seen, a failure to consummate the intended crime is generally regarded as one of the essential elements of an attempt.23 And for this reason it has been held by some of the courts that there cannot be a conviction for an attempt where the proof shows the completed offense, though there is also authority to the contrary.25 24 Statutes in some states prohibit a conviction of an attempt to commit a crime when it appears that the offense was actually perpetrated in pursuance of such attempt,26 while statutes in other states ex the fact that it becomes impossible for the accused to commit the offense because the person to be murdered does not pass the spot where the accused is waiting, or because the accused is arrested before he has an opportunity to commit the offense by officers who have been informed of his purpose. Stokes v. State, 92 Miss. 415, 46 So. 627, 21 L. R. A. (N. S.) 898. One who shoots into a bedroom with intent to kill a person whom he be lieves is sleeping there may be convicted of an attempt to murder although in fact such person is not there. State v. Mitchell, 170 Mo. 633, 71 S. W. 175, 94 Am. St. Rep. 763. In People v. Lee Kong, 95 Cal. 666, 30 Pac. 800, 17 L. R. A. 626, 29 Am. St. Rep. 165, a conviction of assault with intent to kill was sustained, where the accused had shot at a particular spot, with intent to kill a policeman whom he supposed to be concealed there, though it appeared that the policeman was in fact at another place. In State v. Glover, 27 S. C. 602, 4 S. E. 564, a conviction of assault with intent to murder was sustained where defendant gave a child a dose of poison which she supposed was sufficient to cause death. In Com. v. Kennedy, 170 Mass. 18, 48 N. E. 770, it was held that an indictment for an attempt to murder by poison was sufficient though it did not allege that the dose sought to be administered was sufficient to kill. See also § 423, infra. 20 An attempt to commit the crime of extorting money by putting another in fear is committed, notwithstanding the other is not really put in fear, but gives up the money for the purpose of afterwards prosecuting the offender. People v. Gardner, 144 N. Y. 119, 38 N. E. 1003, 28 L. R. A. 699, 43 Am. St. Rep. 741, rev'g 73 Hun 66, 25 N. Y. Supp. 1072. 21 See §§ 360-366, infra. 22 Griffin v. State, 26 Ga. 493; State v. Hayes, 78 Mo. 307; State v. Taylor, 47 Ore. 455, 84 Pac. 82, 4 L. R. A. (N. S.) 417, 8 Ann. Cas. 627. 23 See § 146, supra. 24 People v. Stanton, 106 Cal. 139, 39 Pac. 525; Graham v. People, 181 Ill. 477, 55 N. E. 179, 47 L. R. A. 731. 25 State v. Shepard, 7 Conn. 54. 26 See the statutes of the various states and the following cases: Lev. pressly provide that a person may be convicted of an attempt to commit an offense even if it appears on the trial that the crime was fully consummated.27 § 158. Solicitation to commit crime-As an attempt. There are some cases in which the mere solicitation of another to commit a crime has been held indictable as an attempt to commit the crime, on the theory that mere solicitation is sufficiently an act done "a step in the direction of the crime"-to constitute an attempt.28 According to the great weight of authority, however, mere solicitation to commit a crime, without more, is not an attempt,29 but is punishable, if at all, as a distinct misdemeanor:30 Thus, it has been held, that soliciting another to commit arson is not an attempt to commit arson; 31 that soliciting a child under the age of consent to submit to sexual inter erett v. State, 20 Ga. App. 748, 93 S. E. 232; Wilson v. State, 85 Miss. 687, 38 So. 46; State v. White, 35 Mo. 500; Axhelm v. United States, 9 Okla. 321, 60 Pac. 98. 27 See the statutes of the various states and the following cases: People v. Mills, 178 N. Y. 274, 70 N. E. 786, 67 L. R. A. 131; State v. Peterson, 109 Wash. 25, 186 Pac. 264; State v. McGilvery, 20 Wash. 240, 55 Pac. 115. 28 State v. George, 79 Wash. 262, 140 Pac. 337. See the language of the different judges in Rex v. Higgins, 2 East 5, quoted in the opinion of the court in Walsh v. People, 65 Ill. 58, 16 Am. Rep. 569. And see State v. Avery, 7 Conn. 266, 18 Am. Dec. 105; People v. Bush, 4 Hill (N. Y.) 133. 29 United States. See United States v. Stephens, 8 Sawy. 116, 12 Fed. 52. California. Ex parte Floyd, 7 Cal. App. 588, 95 Pac. 175. Delaware. State v. Donovan, 5 Boyce 40, 90 Atl. 220. Illinois. Graham v. People, 181 Ill. 477, 55 N. E. 179, 47 L. R. A. 731; Cox v. People, 82 Ill. 191. Kansas. In re Lloyd, 51 Kan. 501, 33 Pac. 307. Massachusetts. Com. V. Peaslee, 177 Mass. 267, 59 N. E. 55. Michigan. McDade v. People, 29 Mich. 50. Minnesota. State v. Lampe, 131 Minn. 65, 154 N. W. 737. Missouri. State v. Harney, 101 Mo. 470, 14 S. W. 657. Pennsylvania. Com. v. Randolph, 146 Pa. St. 83, 23 Atl. 388, 28 Am. St. Rep. 782; Stabler v. Com., 95 Pa. St. 318, 40 Am. Rep. 653; Smith v. Com., 54 Pa. St. 209, 93 Am. Dec. 686. South Carolina. See State v. Bowers, 35 S. C. 262, 14 S. E. 488, 15 L. R. A. 199, 28 Am. St. Rep. 847. Washington. State v. Butler, 8 Wash. 194, 35 Pac. 1093, 25 L. R. A. 434, 40 Am. St. Rep. 900. England. Reg. v. Williams, 1 C. & K. 589, 1 Den. C. C. 39. 30 See § 159, infra. 31 McDade v. People, 29 Mich. 50. The mere offer of money or solici tation to commit arson, is not an attempt. State v. Donovan, 5 Boyce (Del.) 40, 90 Atl. 220. As to what overt acts are sufficient to constitute an attempt to commit arson, see § 385, supra. 32 course is not an attempt to rape; 88 that soliciting another to commit incest 38 or adultery 34 is not an attempt to commit incest or adultery; that soliciting a person to give poison to another is not an attempt to administer poison; 35 that ordering tickets or orders to be printed without authority is not an attempt to commit forgery; 36 and that hiring persons to commit extortion is not an attempt to commit that crime.37 § 159. - As a substantive offense. According to the weight of authority, it is a misdemeanor merely to solicit another to commit a crime, if the crime be a felony, though nothing further is done towards carrying out the unlawful purpose. The solicitation, without more, is regarded as a sufficient act to take the case out of the sphere of mere intent.38 So it has been held an indictable offense to solicit any person to commit larceny or embezzlement,89 or murder,40 or 32 State v. Harney, 101 Mo. 470, 14 S. W. 657. 38 Cox v. People, 82 Ill. 191. 34 Cole v. State, 14 Okla. Cr. 18, 166 Pac. 1115, L. R. A. 1918 A 94; Smith v. Com., 54 Pa. St. 209, 93 Am. Dec. 686; State v. Butler, 8 Wash. 194, 35 Pac. 1093, 25 L. R. A. 434, 40 Am. St. Rep. 900. 35 Stabler v. Com., 95 Pa. St. 318, 40 Am. Rep. 653. See also Hicks v. Com., 86 Va. 223, 9 S. E. 1024, 19 Am. St. Rep. 891. And see § 153, supra. 36 Ex parte Floyd, 7 Cal. App. 588, 95 Pac. 175. 37 State v. Lampe, 131 Minn. 65, 154 N. W. 737. State v. Donovan, 5 38 Delaware. Boyce 40, 90 Atl. 220. Massachusetts. Com. v. Flagg, 135 Mass. 545. Missouri. State v. Sullivan, 110 Mo. App. 75, 84 S. W. 105. New York. People v. Bloom, 149 App. Div. 295, 133 N. Y. Supp. 708. Pennsylvania. Com. v. Hutchison, 6 Pa. Super. Ct. 405. Wisconsin. Rudolph v. State, 128 Wis. 222, 107 N. W. 466, 116 Am. St. Rep. 32. England. Rex v. Higgins, 2 East 5. This is true whether the crime is made a felony by statute or by the common law. State v. Sullivan, 110 Mo. App. 75, 84 S. W. 105. In Ex parte Floyd, 7 Cal. App. 588, 95 Pac. 175, it was said: "Mere soliciting one to commit an act which would constitute a crime if committed is not made criminal by our Penal Code.' The indictment in this case, however, was for an attempt, and the question was whether mere solicitation amounted to an attempt as defined by the Code. 39 Reg. v. Quail, 4 F. & F. 1076; Reg. v. Daniell, 6 Mod. 99. Soliciting a servant to steal his master's goods. Rex v. Higgins, 2 East 5. 40 Lee v. Stanfill, 171 Ky. 71, 186 S. W. 1196; Begley v. Com., 22 Ky. L. Rep. 1546, 60 S. W. 847; Com. v. Randolph, 146 Pa. St. 83, 23 Atl. 388, 28 Am. St. Rep. 782; Stabler v. Com., 95 Pa. St. 318, 40 Am. Rep. 653; Reg. v. Williams, 1 C. & K. 589, 1 Den. C. C. 39; Bacon's Case, 1 Sid. 230, 1 Lev. 146. 41 arson, or sodomy,42 or to solicit the commission of adultery,48 or bribery, or the uttering of forged bank bills,45 where these offenses are made felonies by statute. Some of the courts have made a distinction in this respect between felonies and misdemeanors, and have held that solicitation to commit a misdemeanor is not indictable at all.46 But, according to the weight of authority, the true test is not whether the act solicited would be a felony or a misdemeanor, but whether it would injuriously affect the public, and if it would, solicitation to commit it is a misdemeanor although the offense itself would be a misdemeanor.48 It has been 41 State v. Donovan, 5 Boyce (Del.) 40, 90 Atl. 220; Com. v. Flagg, 135 Mass. 545. And see People v. Bush, 4 Hill (N. Y.) 133; Com. v. Hutchinson, 42 Wkly. Notes Cas. (Pa.) 137, 6 Pa. Super. Ct. 405, 19 Pa. Co. Ct. 360; State v. Bowers, 35 S. C. 262, 14 S. E. 488, 15 L. R. A. 199, 28 Am. St. Rep. 847. 42 Rex v. Hickman, 1 Moody C. C. 34; Reg. v. Rowed, 3 Q. B. 180, 6 Jur. 396. 43 State v. Avery, 7 Conn. 266, 18 Am. Dec. 105. 44 State v. Sullivan, 110 Mo. App. 75, 84 S. W. 105; Rudolph v. State, 128 Wis. 222, 107 N. W. 466, 116 Am. St. Rep. 32. 45 See Ohio v. Davis, Tapp. (Ohio) 171. 46 Lamb v. State, 67 Md. 524, 10 Atl. 208, 298, holding that soliciting a pregnant woman to take drugs for the purpose of producing an abortion is not an offense. See also Bittle v. State, 78 Md. 526, 28 Atl. 405. Smith v. Com., 54 Pa. St. 209, 93 Am. Dec. 686, where it was held not to be an indictable offense to solicit a woman to commit adultery, which was a misdemeanor in that state, is sometimes cited as upholding this rule. But in Com. v. Hutchison, 6 Pa. Super. Ct. 405, it is said that the Smith case does not lay down a general rule that solicitation to commit a misdemeanor is not a misdemeanor, and that the act there charged to have been solicited was one tending only to secret immorality by the parties immediately involved, and not directly to the public prejudice. 47 Com. v. Hutchison, 6 Pa. Super. Ct. 405. At common law solicitation or incitement to the commission of an act which is injurious to the public is punishable as a crime. State v. Quinlan, 86 N. J. L. 120, 91 Atl. 111. "Certainly to incite or solicit another to commit a felony or other aggravated crime, whether it be actually committed or not, is a misdemeanor at common law; and generally speaking solicitations which in any way attack public society or safety are indictable as distinct offenses." State v. Donovan, 5 Boyce (Del.) 40, 90 Atl. 220, reviewing the authorities. See also Cole v. State, 14 Okla. Cr. 18, 166 Pac. 1115, L. R. A. 1918 A 94; Com. v. Randolph, 146 Pa. St. 83, 23 Atl. 388, 28 Am. St. Rep. 782; State v. Butler, 8 Wash. 194, 35 Pac. 1093, 25 L. R. A. 434, 40 Am. St. Rep. 900. 48 State v. Sullivan, 110 Mo. App. 75, 84 S. W. 105; Com. v. Hutchison, 6 Pa. Super Ct. 405. See also Cox v. People, 82 Ill. 191. In Smith v. Com., 54 Pa. St. 209, 93 Am. Dec. 686, it was held not to be 31 3 52 50 said in a number of cases that it is an indictable offense to solicit another to commit a felony "or other aggravated offense." 49 Indictments have been sustained for solicitation to commit embracery,5 or to accept 51 or pay a bribe, or to burn a building,53 or to commit an assault and battery,54 or not to register under the Selective Draft Act,55 and for soliciting a person who has been summoned as a witness for the state in a criminal prosecution to absent himself,56 where the completed offense would have been merely a misdemeanor. Statutes sometimes expressly make it an offense to advise a woman to take a drug for the purpose of producing a miscarriage,57 or to teach or advocate criminal syndicalism, sabotage, and the like,58 or treason or disloyalty to the government.5 an indictable offense to solicit a woman to commit adultery, since, by the laws of Pennsylvania, adultery was merely a misdemeanor. But in Com. v. Hutchison, 6 Pa. Super. Ct. 405, it is pointed out that Smith v. Com. does not lay down a general rule that solicitation to commit a misdemeanor is not a misdemeanor, and that the act there charged was one tending only to secret immorality by the parties immediately involved, and not directly to the public prejudice. In Com. v. Willard, 22 Pick. (Mass.) 476, it was held, in effect, that solici tation to sell liquor in violation of law was not an indictable offense, on the ground that solicitation or incitement is punishable only where the substantive offense is a felony, or is of a high and aggravated character tending to a breach of the peace or other great disorder and violence, and is mala in se. 49 United States v. Galleanni, 245 Fed. 977; State v. Donovan, 5 Boyce (Del.) 40, 90 Atl. 220; Com. v. Flagg, 135 Mass. 545. 59 50 State v. Bonds, 2 Nev. 265. 51 United States v. Worrall, 2 Dall. (U. S.) 384, 1 L. Ed. 426; Rex v. Vaughan, 4 Burr. 2494; Rex V. Plympton, 2 Ld. Raym. 1377. 52 Walsh v. People, 65 Ill. 58, 16 Am. Rep. 569. State v. Sullivan, 110 Mo. App. 75, 84 S. W. 105, holding that it was an offense at common law for a legislative officer to solicit a bribe. 53 Com. v. Hutchison, 6 Pa. Super. Ct. 405. 54 United States v. Lyles, 4 Cranch C. C. 469, Fed. Cas. No. 15,646. 55 United States v. Galleanni, 245 Fed. 977, where wilful failure or refusal to register was held to be an "aggravated offense" in view of the circumstances then surrounding the country. 56 State v. Keyes, 8 Vt. 57, 30 Am. Dec. 450. 57 See § 374, infra. |