State v. Donovan

¶1delivering the opinion of the court:

¶2Counsel for the accused demurred to the indictment, contending: As to the first count, that an attempt cannot be predicated upon mere solicitation; as to the second, that mere solicitation to commit a crime is not indictable; and that even if it were at common law, the Legislature, under Chapter 128, Revised Code (1893), 933-934, has enacted a complete penal code with respect to arson and other burnings below the grade of arson, including attempts to bum, thereby abrogating the common law upon the subject, .so that, as to the latter offenses, statutory attempts only, exclusive of solicitations to bum, are now indictable; and as to the third count, that the averment of an attempt in the language of the statute, without amplification or explanation, does not sufficiently inform the accused of the nature of the charge against him. Inasmuch as the objections to the first and third counts necessitate an inquiry into the nature of offenses of attempts both at common law and under the statute, we shall consider these two counts before taking up the second count, based upon the alleged offense of solicitation.

¶3[1] It is a well-established rule that in order to constitute an attempt to commit a crime, whether statutory or at common law, there must be some act done in part execution of a design to commit the crime. 1 Bishop, New Crim. Law, §728; 1 Wharton, Crim. Law, § 173; 3 American and Eng. Enc. Law ( 2d Ed.) 250; 12 Cyc. 176; Clark’s Crim. Law, § 120; 1 Roscoe’s Crim. Ev. 312; Stephen’s Dig. Crim. Law, 33; People v. Gardner, 144 N. Y. 119, 38 N. E. 1003, 28 L. R. A. 699, 43 Am. St. Rep. 741; People v. Sullivan, 173 N. Y. 122, 65 N. E. 989, 63 L. R. A. 353, 93 Am. St. Rep. 582; Commonwealth v. Peasler, 177 Mass. 267, 59 N. E. 55; People v. Stites, 75 Cal. 570, 17 Pac. 693. In other words, an attempt consists not only of an intention to commit some particular crime, but that intention must be coupled with an act or a step beyond mere preparation, and the difference between attempt and commission is that the act or step fails to produce the result intended. Hicks v. Commonwealth, 86 Va. 223, 9 S. E. 1024, 19 Am. St. Rep. 891; State v. Taylor, 47 Or. 455, 84 *4682, 4 L. R. A. (N. S.) 417, 8 Ann. Cas. 627; McDermott v. People, 5 Parker Cr. R. (N. Y.) 102.

¶4In State v. Lockwood, 1 Boyce, 28, 31, 74 Atl. 2, on an indictment for attempt to commit arson, the court, in the charge to the jury, held that it was necessary to show not only some physical effort on the part of the accused to accomplish the act of burning, but also the attempt or state of mind of the accused with which the act was done or contemplated. Similarly, in State v. Hollingsworth, 1 Man. 528, 530, 41 Atl. 144, on an indictment for attempt to commit larceny, the court said: “The crime charged contains two distinct elements: First, the intention to commit larceny; second, the commission of some overt act or acts, in execution of that intention which if carried out, would constitute larceny.”

¶5[2] This being true, it remains to inquire of what sort must be the overt act necessary to satisfy the definition of an attempt; and although it is clear that the act need not be the next preceding or proximate act necessary to consummation of the crime intended, we are, nevertheless, of the opinion that the mere offer of money, or solicitation, to commit arson is not the sort of act necessary to satisfy the definition. Bishop, on Crim. Law, § 762; McDade v. People, 29 Mich. 50; Uhl v. Com., 6 Grat. (Va.) 706; Hicks v. Com., supra. To be indictable as an attempt, the offer of money or solicitation would have to be coupled with some act or acts related to the execution of the intention; and for this reason, we sustain the demurrer to the first count.

¶6[3] The averment in the third count substantially follows, the language of the statute. This is not always sufficient and it is never so when the elements of the crime are not supplied by the statute, or when recourse must be had to the common law in order to determine the constituent elements of the crime. It is true that in the employment of certain words in themselves descriptive of the crime—like assault, rape, and others—it is unnecessary to aver acts done, as such words are always enough to charge the facts indicated by them. Beale’s Crim. Plead. & Prac. p. 99. And it is equally true that, when an offense created by statute and the facts constituting it are fully set out, it is suffi*47cient to charge the offense in the language of the statute without further description. 1 Bishop, Crim. Pro. 611. But the averment of an “attempt to set on fire” is by itself purely argumentative and does not apprise the accused of the facts necessary to enable him “to be plainly and fully informed of the nature and cause of the accusations against him,” as is required by the Constitution of this state (section 7, art. 1, 1897); 10 Enc. Plead. & Prac. 487; Wharton’s Crim: Plead. & Prac. § 220; State v. McDowell, 1 Penn. 2, 39 Atl. 454 ; 2 Wharton, Crim. Law, §§ 2703, 2705; U. S. v. Carll, 105 U. S. 611, 26 L. Ed. 1135; Bishop, Stat. Crim. § 394; 2 Bishop, Crim. Pro. § 1792; R. v. Aspinall, 2 Q. B. D. 48, 56.

¶7For this reason, the demurrer to the third count is sustained.

¶8[4] With regard to the second count, we must inquire, first, whether mere solicitation to commit a crime without any act done in furtherance thereof was ever indictable; and if so, then whether Chapter 128, Revised Code, pp. 933, 934, has abrogated the common law upon the subject of arson and other offenses of burning, including the lesser offenses of criminal attempts, so that as to the latter only the statutory attempts exclusive of solicitations to bum are now indictable. It was conceded by counsel for the accused that mere solicitation as charged in this count has been held to be an indictable offense at common law by at least one text-writer and in several cases. 1 Bishop, Crim. Law, § 768; Com. v. Flagg, 135 Mass. 545; State v. Bowers, 35 S. C. 262, 14 S. E. 488, 15 L. R. A. 199, 28 Am. St. Rep. 847; Rex v. Higgins, 2 East, 5.

¶9On the other hand, Mr. Wharton was quoted as saying in his chapter on arson that whether a bare solicitation was indictable when there was no overt act might well be questioned. 1 Wharton, § 844. See Cox v. People, 82 Ill. 191; State v. Baller, 26 W. Va. 90, 53 Am. Rep. 66.

¶10After a careful examination of the authorities it would seem that there is a considerable want of harmony in the text-books and adjudicated cases, attributable to some extent, at least, to decisions based on particular statutes, to cases where mere solicitation has been charged as an attempt, and to particular statutes *48which make certain acts, preparatory in their character, substantive offenses. The count under consideration, however, involves no question of attempt, nor of mere solicitation charged as an attempt, nor of the punishment of ‘ ‘ intents ’ ’ as well as ‘ ‘ attempts, ’ ’ as in the case of Griffin v. State, 26 Ga. 493. Our" sole inquiry at present is whether soliciting the crime of burning a warehouse is a distinct offense at common law; for if it is, and if it has not been abrogated by our statutes with regard to arson, and minor kindred offenses then such solicitation is a misdemeanor, because all offenses indictable at common law and not specially provided for by statute are deemed misdemeanors. Section 18, c. 127, Rev. Code, p. 926.

¶11In Commonwealth v. Randolph, 146 Pa. 83, 23 Atl. 388, 28 Am. St. Rep. 782, the appellant was convicted in the court below on an indictment charging that the accused “unlawfully, wickedly and maliciously did solicit and invite another … by the offer and promise … of a large sum of money, … which she did propose, offer, promise, and agree to pay, did incite and encourage him … one … feloniously, to kill … against,” etc. A motion was made to quash the indictment upon the ground that “the said indictment does not charge in any count thereof any offense, either at common law or by statute.” The court refused to quash, and its refusal, with the refusal to arrest the judgment, was assigned as error. The offense charged was not statutory so the only question was whether it was an offense at common law. Tested by the answer given in Commonwealth v. McHale, 97 Pa. 397, 39 Am. Rep. 808, the court had no doubt that the solicitation to commit murder, accompanied by the offer of money for that purpose, was an offense at common law; and the case of Stabler v. Commonwealth, 95 Pa. 318, 40 Am. Rep. 653, in which there was a conviction for solicitation to administer poison, was reviewed and approved.

¶12From these and other cases, as well as from the text-books, it seems that, although the authorities are not agreed on the question when solicitation to commit an offense is an attempt, they are in accord in holding that solicitation to commit certain *49crimes is in itself a substantive crime. 1 Wharton’s Crim. Law, § 179; State v. Baller, 26 W. Va. 90, 53 Am. Rep. 66; 1 Bishop, Crim. Law, p. 768; State v. Avery, 7 Conn. 266, 18 Am. Dec. 105; People v. Bush, 4 Hill (N. Y.) 133; Rex v. Phillips, 6 East, 464; Cox v. People, 82 Ill. 191; Lamb v. State, 67 Md. 524, 10 Atl. 208, 298; McDermott v. People, 5 Parker Cr. R. 102;’ Smith v. Commonwealth, 54 Pa. 209, 93 Am. Dec. 686; Stabler v. Commonwealth, 95 Pa. 318, 40 Am. Rep. 653.

¶13Certainly 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. Regina v. Quail, 4 F. & F. 1076; Rex v. Higgins, 2 East, 5; Rex v. Gaughan, 4 Burr. 2494; Rex v. Phillips, 6 East, 464; Commonwealth v. Flagg, 135 Mass. 545; Commonwealth v. Randolph, 146 Pa. 83, 23 Atl. 388, 28 Am. St. Rep. 782; 12 Cyc. 182, and other cases cited.

¶14In Russell on Crimes, Volume 1, p. 44, we read: “It is clear that all felonies, and all kinds of inferior crimes of a public nature as misprisions, and all other contempts, all disturbances of the peace, oppressions, misbehavior by public officers, and all other misdemeanors whatsoever of a public evil example against the common law may be indicted.”

¶15The crime of arson is a felony both at common law and under our statute, and under the latter “to willfully and maliciously bum or set on fire any warehouse ’ ’ is also a felony. We are of the opinion, therefore, that apart from the question of abrogation, a mere solicitation to burn or set on fire a warehouse is indictable at common law, not only because it is a solicitation to commit what was apparently prior- to 7 and 8 Geo. IV, c. 30, § 2, a misdemeanor malum in se, and what is now a felony, but also because it is an offense of a public nature of evil example, and prejudicial to the community.

¶16In support of the other objection to this second count, it was urged:

¶17(1) That a criminal statute embracing the whole subject-*50matter implies an abrogation and repeal of the common law on that subject. 12 Cyc. 140; 1 Sutherland, Stat. Cons. 251.

¶18(2) That in revising statutes generally, whatever is excluded is repealed. 1 Sutherland, Stat. Cons. 251, 270; 8 Cyc. 376; 12 Cyc. 140; Ex parte Floyd, 7 Cal. App. 588, 95 Pac. 175; Commonwealth v. Cooley, 10 Pick. (Mass.) 39; In re Chemical Co., 7 Del. Ch. 262, 44 Atl. 775; Husbands v. Talley, 3 Penn. 88, 47 Atl. 1009.

¶19Generally speaking it is true. “When,” as Mr. Black has said, “it is evident that a statute, or a code or revision of the laws, is not intended merely to be cumulative, or to remedy the defects of the common law, but designed as a complete and comprehensive body of law in relation to a given subject, it supersedes the common law entirely, as to that subject, and leaves no part or branch of it to be governed or determined by the common law.” Black, Inter. Laws, 236, and cases cited.

¶20[5, 6] It is equally true, however, that repeals by implication are not favored, and only in clear cases will the courts pronounce such repeals. Statutes should be construed in connection with the previously existing statutory or common law upon the same subject. Whether such statutes repeal the previously existing law, in the absence of a repeal in express terms, depends upon the presence or absence of an irreconcilable inconsistency between them, unless it is manifestly clear that the later enactment is intended to supersede the earlier law and embrace the whole subject matter. Roche v. Mayor, etc., 40 N. J. Law, 257; 12 Cyc. 141, and cases cited.

¶21The difficulty is not in the recognition of these two general principles, but in their application to the present case. By said Section 18, Chapter 127, RevisedCode (1893), 926, it is provided that “Assaults, batteries, nuisances, and all other offenses indictable at common law, and not specially provided for by statutes, shall be deemed misdemeanors, … ”. The provisions in the statute making attempts to burn buildings, and other objects therein enumerated, misdemeanors, were evidently enacted in aid of the common law; that is, for the purpose of embracing things not covered by the common law, and not for the purpose of com*51pleting a code on the subject. To maintain the contention of counsel for accused, it would be necessary to hold that the arson statute has not only had the effect of abrogating the common law upon the subject, but also that in respect to the offense charged it operates as a repeal of the express provisions of the other statute making all offenses indictable at common law, and not specially provided for by statutes, misdemeanors. We do not think that the arson statute in itself, or the rules governing repeals by implication, warrant such a holding. On the contrary, we find that the statute has not abrogated the common-law offense of solicitation to commit arson or to set on fire a warehouse.

¶22[7] In 1 Bishop’s Crim. Law, 768, the learned author says: “The law as adjudged holds, and has held from the beginning, in all this class of cases, an indictment sufficient which simply charges that the defendant, at the time and place mentioned, falsely, wickedly, and unlawfully did solicit and incite a person named to commit the substantive offense, without any further specification of overt acts. It is vain, then, to say that mere solicitation, the mere entire thing which need be averred against a defendant as the ground for his conviction, is no offense.”

¶23Without pursuing the subject further, our conclusion is that the second count is good and we overrule the demurrer thereto.