Syllabus
by the Court.
Mere
solicitation to commit adultery cannot be prosecuted under
the law as an attempt to commit adultery.
An
information which charges only a solicitation to commit
adultery does not state facts sufficient to constitute a
public offense under the attempt statute.
For an
information held insufficient, a general discussion
of the principles involved, and a review of authorities, see
opinion.
Appeal
from District Court, Haskell County; W. H. Brown, Judge.
Sam
Cole was convicted on a charge of attempt to commit adultery
and appeals. Reversed.
ARMSTRONG
J.
The
plaintiff in error, Sam Cole was convicted in the district
court of Haskell county on a charge of attempt to commit
adultery. The appeal is brought to this court, seeking a
reversal of the judgment of conviction.
A
consideration of the first assignment of error disposes of
this case. This assignment is based upon the proposition that
the information fails to state facts sufficient to constitute
a public offense. The information, omitting formal parts, is
as follows:
"That Sam Cole did, in Haskell county, state of
Oklahoma, on or about the 5th day of August, in the year of
our Lord one thousand nine hundred and fifteen and anterior
to the presentment hereof, commit the crime of attempt to
commit adultery in the manner and form as follows, to wit
The defendant, Sam Cole, did then and there, unlawfully,
willfully, and feloniously intend then and there to have
carnal knowledge of the body of Vina Green, the lawful wife
then and there of E. L. Green, who was then alive, and the
said Sam Cole, in pursuance of said unlawful, willful and
felonious intent by direction, invitation by word of mouth,
and by laying on of hands by the said Sam Cole upon the
person of the said Vina Green, did solicit and incite and
endeavor to persuade the said Vina Green to then and there
have intercourse with him, the
said Sam Cole, no other persons being then and there present;
he, the said Sam Cole, being then and there at the home of
the said Vina Green, in the absence of the family of the said
Vina Green, and he, the said Sam Cole, being then and there
the husband of one certain person other than the said Vina
Green, to wit, Mrs. Sam Cole, whose given name is to the
county attorney unknown--contrary to the form of the statutes
in such cases made and provided, and against the peace and
dignity of the state."
An
exhaustive research has disclosed no cases directly in point
which support the validity of this information. The
information charges only solicitation. It naturally follows,
then, that no public offense is stated, unless the
solicitation of a woman to commit adultery amounts to an
attempt to commit adultery. The facts disclosed by the record
support only the allegations of the information, but do not
disclose a stronger case. In Ex parte Turner, 3 Okl. Cr. 168,
104 P. 1071, this court discussed an attempt to commit a
crime, and among other things, after quoting authorities,
said:
"Therefore the acts must reach far enough towards the
accomplishment of the desired result to amount to the
commencement of the consummation. It must be not merely
preparatory. In other words, while it need not be the last
proximate act to the consummation of the offense attempted to
be perpetrated, it must approach sufficiently near to it to
stand either as the first or some subsequent step in a direct
movement towards the commission of the offense after the
preparations are made. McDade v. People, 29 Mich.
50; Bouv. Law Dict. 'Attempt.' It has been often held
that the purchase of a gun with intent to commit murder, or
the purchase of poison with the same intent, does not
constitute an indictable offense, because the act done in
either case is considered as only in the nature of a
preliminary preparation, and as not advancing the conduct of
the accused beyond the sphere of mere intent. 'To make
the act an indictable attempt,' says Wharton, 'it
must be a cause, as distinguished from a condition; and it
must go so far that it would result in the crime, unless
frustrated by extraneous circumstances.' 1 Whart. Crim.
Law, par. 181. This principle is well illustrated by the case
of People v. Murray, 14 Cal. 159. In that case the
defendant was indicted for an attempt to contract an
incestuous marriage with his niece. It was shown that, after
declaring his intention to marry her, he actually eloped with
her, and sent for a magistrate to perform the ceremony, and
at the trial he was convicted; but on appeal the judgment was
reversed, the appellate court holding that these were mere
preparations, and did not constitute an attempt, within the
meaning of the statute. In delivering the unanimous opinion
of the court, Field, C.J., said: 'The evidence shows very
clearly the intention of the defendant; but something more
than the mere intention is necessary to constitute the
offense charged. Between preparation for the attempt and the
attempt itself there is a wide difference. The preparation
consists in devising or arranging the means or measures
necessary for the commission of the offense; the attempt is
the direct movement towards the commission after the
preparations are made. To illustrate: A party may purchase
and load a gun, with the declared intention to shoot his
neighbor; but, until some movement is made to use the weapon
upon the person of his intended victim, there is only
preparation, and not an attempt. For the preparation he may
be held to keep the peace, but he is not chargeable with any
intent to kill. So, in the present case, the declarations and
elopement and request for a magistrate were preparatory to
the marriage; but until the officer was engaged, and the
parties stood before him, ready to take the vows appropriate
to the contract of marriage, it cannot be said in strictness
(i. e., in a legal sense) that the attempt was made. The
attempt contemplated by the statute must be manifested by
acts which would end in the consummation of the particular
offense but for the intervention of circumstances independent
of the will of the party.' "
In
State v. Butler, 8 Wash. 194, 35 P. 1093, 25 L. R. A.
434, 40 Am. St. Rep. 900, the identical question here under
consideration was determined by the Supreme Court of
Washington. The information considered by the Washington
court is as follows:
"Comes now E. K. Pendergast, prosecuting attorney for
Douglas county, in the state of Washington, and by this, his
information, as provided by law, charges one James Butler
with the crime of attempting to commit adultery, in the
following manner, to wit: He, the said James Butler, on the
3d day of September, A. D. 1892, in the county of Douglas and
state of Washington, did unlawfully, willfully, maliciously,
and feloniously intend then and there to have carnal
knowledge of the body of one Caroline Skett, the lawful wife
then and there of one Julius Skett, who was then alive; and
the said James Butler, in pursuance of the said unlawful,
willful, malicious, and felonious intent, then and there
falsely, wickedly, unlawfully, and maliciously, by means of
promises of the payment of money and by direct invitation by
word of mouth, and by laying on of hands by the said James
Butler upon the person of the said Caroline Skett in a lewd
and lascivious manner, and in the absence of all other
persons, except the said James Butler and the said Caroline
Skett, and by various other means, did solicit and incite and
endeavor to persuade and procure the said Caroline Skett to
have sexual intercourse then and there with him, the said
James Butler, and the said James Butler was then and there
the lawful husband of one
certain person other than the said Caroline Skett, and whose
true name is to said prosecuting attorney unknown. All of
which is contrary to the statute in such case made and
provided, and against the peace and dignity of the state of
Washington."
The
court in discussing the proposition, said:
"The only question presented and argued by appellant is
as to whether solicitation to commit adultery is an attempt
to commit adultery. It is not contended that Caroline Skett
was a consenting party, or willing to commit the act with the
defendant. The information contains no such allegation, and
the case stands as though she was an unwilling and resisting
party. It is not contended that there was any act on the part
of the defendant going to an attempting beyond soliciting the
said Caroline Skett and endeavoring to obtain her consent. Is
mere solicitation an attempt to commit adultery? It being
impossible for one alone to commit adultery, as that requires
the co-operation of two persons, it would seem to follow
logically that one acting singly could not make an attempt.
One person could no more attempt to commit adultery than he
could attempt to commit a riot, which, under our statutes
requires the participation of three or more persons. The
instances given in the books where the solicitation of
another to commit a crime is held to be an offense generally
relate to those acts or crimes which can be performed or
committed by one person, or where the solicitation to commit
the crime is an offense in itself, as distinguished from an
attempt. It is urged that a person may be convicted of
adultery, or of an attempt to commit adultery, although not a
direct participant in the act, by reason of aiding or
abetting; but in such a case, where an attempt is charged
against such third person, it should appear that there were
two persons willing to commit the act of adultery, and that
something
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