Gervin v. State

• Decision Date: 11 October 1963
• Citation: 212 Tenn. 653,371 S.W.2d 449,16 McCanless 653
• Court: Tennessee Supreme Court
• Parties: , 212 Tenn. 653 Robert George GERVIN v. STATE of Tennessee.

Page 449

371 S.W.2d 449

16 McCanless 653, 212 Tenn. 653

Robert George GERVIN v. STATE of Tennessee.

Supreme Court of Tennessee.

Oct. 11, 1963.

Hal H. Clements, Jr., Knoxville, for plaintiff in error.

George F. McCanless, Atty. Gen., Thomas E. Fox, Asst. Atty. Gen., Nashville, for the State.

DYER, Judge.

This appeal in error is from a verdict and judgment convicting Gervin, the appellant here and defendant below, of an attempt to commit murder in violation of Section 39-603, T.C.A. This section is our general attempt statute which provides for attempts to commit felonies, either by assault or otherwise.

The question to be decided is whether or not an indictment which alleges criminal solicitation is sufficient in law to aver an attempt to commit a felony under Section 39-603, T.C.A. This question necessarily involves the primary consideration of common law, criminal solicitation as an attempt.

We hold that such an indictment is not legally sufficient, and that mere criminal solicitation does not constitute an attempt to commit murder under Section 39-603, T.C.A.

Robert George Gervin was arraigned and convicted under an indictment, the pertinent parts of which read:

'The Grand Jurors * * * present that Robert George Gervin * * * unlawfully and feloniously did commit and otherwise attempt to commit a felony * * * that is to say, the defendant with intent to feloniously and with malice aforethought commit murder in the first degree, did hire, persuade, try to persuade, and otherwise procure another to attempt to kill and murder another * * * contrary to the statute and against the peace and dignity of the State.'

The defendant moved to quash the indictment, challenging the sufficiency of the averments. The motion to quash was overruled by the trial court, and this is assigned as error on appeal. Numerous other assignments of error are made which we do not reach as the one question is determinative.

The terms 'attempt' and 'solicitation' as used in criminal law are often confused and frequently these terms are merged. Nevertheless attempts and solicitation are distinct by definition. 25 L.R.A. 434 (1894).

'An attempt is an act done with the intent of committing a crime, but which fails of completion. To constitute an attempt, the defendant must, (1) with the intent to commit a specific crime, (2) do an overt act directed to its commission, which goes beyond mere preparation, and is apparently suitable for that purpose, but (3) which fails to result in the commission of the intended crime. 1 Wharton, Criminal Law and Procedure, Sec. 71 at 151-2 (1957).'

See McEwing v. State, 134 Tenn. 649, 185 S.W. 688 (1915) and Dupuy v. State, 204 Tenn. 624, 325 S.W.2d 238 (1959) which adopt substantially this definition.

Common law, criminal solicitation is defined to include any words or devices by which a person is 'requested, urged, advised, counseled, tempted, commanded or otherwise enticed to commit a crime.' Perkins, Criminal Law 505 (1957).

It is evident from the above definitions that the indictment in question is couched in terms of criminal solicitation while averring an attempt to commit a felony. This, we hold, is not permissable in Tennessee.

The weight of American authority holds, as a general proposition, that mere criminal solicitation of another to commit a crime does not constitute an attempt. 1 Wharton, Criminal Law and Procedure, Sec. 81 at 168 (1957); 1 Burdick, Law of Crime, Sec. 106 at 117 (1946); Perkins, Criminal Law, 505, 508 (1957); Clark and Marshall, Crimes, Sec. 4.05 at 200 (6th ed. 1958); Model Penal Code, Sec. 5.02 comment at 86 (Tent. Draft No. 10, 1960); 14 Am.Jur., Criminal Law, Sec. 66 at 814 (1938) and 22 C.J.S. Criminal Law § 73 at p. 225 (1961). The one significant exception to this position is 1 Bishop, Criminal Law, Secs. 767, 768 at 543-546 (9th ed. 1923).

The weight of authority is, of course, not determinative, but the reasons for that position are compelling.

The definitions of attempts and solicitation are not only different, but these offenses are analytically distinct. Sayre, Criminal Attempts, 41 Harv.L.Rev. 821 (1928). The gist of criminal solicitation is incitement. Clark and Marshall, op. cit. supra Sec. 4.02 at 195. The body of the crime is the act of solicitation, and any additional conduct is incidental and collateral. Curran, Solicitations: A Substantive Crime, 17 Minn.L.Rev. 499, 503 (1932-33).

An attempt, on the other hand, requires three elements; (1) an intent to commit a specific crime; (2) an overt act; and (3) failure to consummate the crime. 1 Wharton, op. cit. supra Sec. 71 at 151-152. In attempts, the intent must be to commit the contemplated crime. The intent required in solicitation is the intent to have the crime committed with the purpose of communicating that intent to another. Blackburn, Solicitation to Crimes, 40 W.Va.L.Q. 135 (1933-34). But in relation to attempts, solicitation only supplies a wrongful intent. Solicitation to Commit Murder as an Attempt to Commit, 40 U.Mo.Bull.L.Ser. 45 (1928). Consequently, if the solicitor does not plan to take an active part in effecting the crime, and the solicitation is held an attempt, the requirement of a specific intent may be violated. See Perkins, op. cit. supra at 509.

To constitute an attempt there must also be an act of perpetration, that is, an overt act. Dupuy v. State, 204 Tenn. 624, 325 S.W.2d 238 (1959); McEwing v. State, 134 Tenn. 649, 185 S.W. 688 (1915). However solicitation is preparation rather than perpetration. Clark and Marshall, op. cit. supra Sec. 4.05 at 200. This being true, to call solicitation an attempt is to delete the element of an overt act. The element of an overt act is, however, necessary and serves a useful purpose as pointed out in State v. Mandel, 78 Ariz. 226, 278 P.2d 413 (1954).

The fundamental reason for an overt act is that until such act occurs, there is too much uncertainty that a design is to be apparently carried out. Until that time the situation is equivocal. 278 P.2d at 415-416.

We are reluctant to hold, and indeed our cases indicate we cannot, that at the stage of preparation the attempt will be carried out and that the situation is unequivocal. At this point there are too many contingencies, such as the willingness of the solicitant to carry out the design, to say the dye is cast. But to hold solicitation an attempt this would be necessary.

Not only would the merging of attempts and solicitations do violence to the respective concepts, but there are other reasons which are grounded in policy. There is not the same degree of heinousness in solicitation as in attempts, nor is solicitation as likely to result in a completed crime, there not being the same dangerous proximity to success as found in attempts. Curran, supra at 504.

In most areas of the law degrees of culpability and fault are recognized and different penalties are prescribed. We can see no good reason why there should be an exception made here. On the contrary, there is every reason not to punish offenses equally which are dissimilar in nature and degree. It has taken civilization centuries to realize that men should not be hanged for stealing bread as are murders. But to return to punishing offenses of unequal anti-social behavior similarly we begin to regress to that point. This is not to say that soliciting murder and stealing bread are analogous. Rather it is to point the fundamental principle of justice that punishment should be commensurate with the gravity of the crime.

The Tennessee cases in point have not been entirely consistent, and apparently only four have considered the question or dealt with it by implication.

In Collins v. State, 50 Tenn. 14 (1870), the defendant was indicted for an attempt to commit murder,

'by purchasing and procuring the said white arsenic and by placing the same in the hands of one Benjamin Collins, * * * and at the same time and place, advising, directing and commanding said, Benjamin Collins, * * * to give and administer the said white arsenic.' 50 Tenn. at 15.

The court held the indictment was sufficient to charge an attempt.

'In this case, according to the indictment, the intent to give is perfect, the plan of giving determined, and its execution set in motion, the poison left the hands of the prisoner, in furtherance of his purpose, but fails, not because of his abandonment of the design, but because of the insufficiency of his medium.' 50 Tenn. at 18.

There is authority to the effect that the Collins case merges solicitation and attempts. Curran, supra at 510. We do not agree, although the indictment does allege some acts of solicitation. The general tenor of this case, and especially the language quoted above, persuades us that the court reached its decision on the basis that the elements of an attempt were set out. There is no reference, in this case, to the solicitory conduct, along, being sufficient. Nor do we think this is implied. The court never seeks to isolate the solicitation and call it an attempt, but also relies on allegations which surpass mere solicitation.

State v. Johnson, 2 Shannon's Cases 539, 541 (1877) states that criminal solicitation to commit adultery is an attempt. This statement is, however, dictum as the court specifically found more than mere solicitation in holding the offense charged was an indictable attempt.

Contrary to State v. Johnson, supra, McEwing v. State, 134 Tenn. 649, 652, 185 S.W. 688, 689 (1915) recites that criminal solicitation is not an attempt. But like State v. Johnson, supra, the McEwing case makes its statement in dictum. Its statement was not necessary to its decision, because the indictment questioned set out that the defendant actually did assault the victim by putting his hands on her. The court held this alleged an overt act, and the indictment was sufficient.

The latest decision in point is Valley v. State, 203 Tenn. 80, 309 S.W.2d 374 (1958). The defendant was...