State v. Donovan
| Citation | 90 A. 220 |
| Parties | STATE v. DONOVAN. |
| Decision Date | 05 February 1914 |
| Court | Court of General Sessions of Delaware |
STATE
v.
DONOVAN.
Court of General Sessions of Delaware. Sussex.
Feb. 5, 1914.
Burton F. Donovan was indicted for an offense. On demurrer to the indictment. Sustained in part, and overruled in part.
Argued before BOYCE and CONRAD, JJ.
Frank M. Jones, Deputy Atty. Gen., for the State. Robert C. White and Daniel J. Layton, Jr., both of Georgetown, for defendant.
The indictment contains three counts. The first charges that the accused did "unlawfully, willfully and corruptly solicit, urge and endeavor to procure one * * * feloniously, maliciously and willfully to set on fire a certain warehouse, * * * by * * * wickedly, advisedly and corruptly offering the said * * * a large sum of money, with intent thereby * * * to procure him, * * * feloniously, willfully and maliciously to set on fire the said warehouse, * * * and did thereby * * * willfully and maliciously attempt to set on fire said warehouse. * * *"
The second count charges that the accused "* * * wickedly * * * did solicit, incite and attempt to procure one * * * feloniously * * * to set on fire a certain warehouse, * * * with intent * * * thereby to injure. * * *"
The third count charges that the accused "* * * willfully * * * did attempt to set on fire a certain warehouse. * * * "
Demurrer sustained as to the first and third counts, and overruled as to the second. The questions of law presented and considered appear in the opinion of the court.
As to the first count, it is submitted that mere solicitation, no act having been done in furtherance, is not an attempt. 22 Cyc. 344; 12 Cyc. 183; 1 Wharton, Cr. Law, 218; Clark's Crim. Law, 141; State v. Bowers, 35 S. C. 262, 14 S. E. 488, 15 L. R. A. 199, 28 Am. St. Rep. 847; Stabler v. Com., 95 Pa. 318, 40 Am. Rep. 654; Lamb v. State, 67 Md. 524, 10 Atl. 208, 298; State v. Harney, 101 Mo. 470, 14 S. W. 657; Com. v. Randolph, 146 Pa. 83, 23 Atl. 388, 28 Am. St. Rep. 782; Hicks v. Com., 86 Va. 223, 9 S. E. 1024, 19 Am. St. Rep. 891; State v. Butler, 8 Wash. 194, 35 Pac. 1093, 40 Am. St. Rep. 900, also, in 25 L. R. A. 434, cases reviewed; State v. Bailer, 26 W. Va. 90, 53 Am. Rep. 66; State v. Goodrich, 84 Wis. 359, 54 N. W. 577; Reg. v. Williams, 1 C. & K. 589; Ex parte Floyd, 7 Cal. App. 588, 95 Pac. 175; McDade v. People, 29 Mich. 50; Cox v. People, 82 Ill. 191; People v. Murray, 14 Cal. 159.
The above authorities go fully into the question as to what constitutes an attempt, and the necessity of an overt act.
The first count presents the facts constituting the "attempt," while the third count alleges the "attempt" in the language of the statute, without amplification or explanation, which does not inform the defendant of the nature and character of the offense.
"Where the statute does not define the act or acts constituting the offense, so as to give the offender information of the nature and character of the accusation, other averments conveying such information must be added." 22 Cyc. 341, 342, 344; 2 Bishop, Crim. Pro. 82-88; Joyce, Indictments, 242.
To this effect, also, 1 Archbold Cr. Pl. & Pr. 283; 1 Whart. Cr. L. 212-303.
The word "attempt" as used in criminal law has no technical definition imparting sufficient legal certainty as to the manner, means used, and the intention of the wrongdoer. The averment ("did forcibly attempt to rescue," in exact language of the statute) was held insufficient U. S. v. Ford (D. C.) 34 Fed. 26.
It is necessary that all the facts which develop the attempt be set out in the indictment. State v. Hefner, 129 N. C. 548, 40 S. E. 2; Beale's Cr. Pl. 140-197; U. S. v. Wardell (C. C.) 49 Fed. 914; V. S. v. Potter (C. C.) 56 Fed. 83; Ledbetter v. U. S., 170 U. S. 606, 18 Sup. Ct. 774, 42 L. Ed. 1162; U. S. v. Carll, 105 U. S. 611, 26 L. Ed. 1135; Rivers v. State, 97 Ala. 72, 12 South. 435.
As to the second count, is a mere solicitation to commit a crime without any act done in furtherance thereof indictable?
It has been held so to be by at least one standard text-writer and in several cases. 1 Bishop, Criminal 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.
With reference to some offenses there would be little ground for difference of opinion either that solicitation to commit them was or was not a crime; but with reference to others, individual judgments will differ even as to the advisability of making them statutory offenses. Note to State v. Bowers, 15 L. R. A. 199; 1 Wharton, Cr. Law (11th Ed.) 218.
Again Mr. Wharton says in his chapter on arson: "That a bare solicitation is indictable, when there is no overt act, may well be questioned." 1 Wharton, § 844.
More than one case, cited as a case of solicitation, is in reality a case of conspiracy. Pennsylvania v. McGill, Add. (Pa.) 21.
Many of the cases cited are cases of attempt under special statutes. State v. Caldwell, 2 Tyler (Vt.) 212.
Statutes making the solicitation indictable. Reg. v. Murphy, Jebb. C. C. 315.
As an illustration of doubt upon the subject, see U. S. v. Lyles, Fed. Cas. No. 15,646.
An indictment used also the word "persuade," which signifies that the solicitation was successful. Respublica v. Roberts, 1 Dall. (Pa.) 27, 1 L. Ed. 27.
Even advising one to rob or kill without something done thereupon is not indictable. Holt, C. J., in Reg. v. Daniell, 6 Mod. 99.
It is not enough to lay an enticement without an act done in pursuance of it. Reg. v. Collingwood, 6 Mod. 289.
Where an indictment charged that the defendant did solicit, etc., a married woman to commit fornication and adultery, it was held not to be an indictable offense. Smith v. Com. 54 Pa. 209, 93 Am. Dec. 686.
Wharton's view of the principle is approved in Cox v. People, 82 Ill. 191; State v. Bailer, 26 W. Va. 90, 53 Am. Rep. 66.
A solicitation to burn a warehouse is not indictable. The statute has abrogated the common law, and attempts only are indictable...
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