State v. Donovan

• Decision Date: 05 February 1914
• Citation: 90 A. 220,28 Del. 40
• Court: Court of General Sessions of Delaware
• Parties: STATE v. BURTON F. DONOVAN

90 A. 220

28 Del. 40

STATE v. BURTON F. DONOVAN

Court of General Sessions of Delaware, Sussex County

February 5, 1914

Court of General Sessions, Sussex County, February Term, 1914.

Burton F. Donovan was indicted for an offense.On demurrer to the indictment (No. 9, October Term, 1913).Sustained in part and overruled in part.For trial s. c., see-- Boyce--, 95 A 1041.

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.

ARGUMENT ON DEMURRER BY COUNSEL FOR ACCUSED.

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. Laws, 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 A. 208, 298;State v. Harney,101 Mo. 470, 14 S.W. 657;Com. v. Randolph,146 Pa. 83, 23 A. 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 P. 1093, 40 Am. St. Rep. 900, also, in 25 L. R. A. 434, cases reviewed;State v. Baller,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 P. 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; 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 F. 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'sCr. Pl. 140-197;U.S. v. Wardell (C. C.)49 F. 914;U.S. v. Potter (C. C.)56 F. 83;Ledbetter v. U.S.170 U.S. 606, 18 S.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 So. 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, seeU.S. v. Lyles, F. 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. Baller,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.Revised Code, pp. 933-935, sections 1-6.

A complete criminal code exists, embracing all acts against which the Legislature thought proper to provide, and, under the authorities, it is submitted, that "solicitation" as a species of attempt is excluded.R. v. Clayton, 1 C. & K. 128.

A criminal statute embracing the whole subject-matter implies an abrogation and repeal of the common law on that subject.1 Sutherland, Stat. Con. 251, 270;12 Cyc. 140;8 Cyc. 376;Com. v. Cooley,10 Pick.(Mass.) 39;In re Chemical Co.,7 Del.Ch. 262, 44 A. 775.

Abortion was an offense at common law; but now, perhaps in all jurisdictions, the common law is absorbed in statutes.2 Whart.Crim. Law, § 781.

Where one was charged with an attempt to forge, etc., and the evidence showed a bare solicitation, the prisoner was discharged on habeas corpus.Ex parte Floyd, 7 Cal.App. 588, 95 P. 175.

An examination of the cases shows this significant fact: That, almost without exception, where in a jurisdiction there existed a specific statute upon "attempt", no indictment for a bare solicitation appears.

The state relied upon 1 Bish. § 776;King v. Higgins, 2 East. 5(16);Com. v. Flagg,135 Mass. 545;People v. Bush, 4 Hill (N. Y.) 133, and other cases cited by counsel for the accused.

Frank M. Jones, Deputy Attorney General, for the state.

Robert C. White and Daniel J. Layton, Jr., for the defendant.

Judges BOYCE and CONRAD sitting.

OPINION

BOYCE, J.

Counsel 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 burn, thereby abrogating the common law upon the subject, so that, as to the latter offenses, statutory attempts only, exclusive of solicitations to burn, 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.

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'sCrim. 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, 63L. R. A. 353, 93 Am. St. Rep. 582;Commonwealth v. Peaslee,177 Mass. 267, 59 N.E. 55;People v. Stites,75 Cal. 570, 17 P. 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, 84 P. 82(1906).[28 Del. 46] 82, 4 L. R. A. (N.S.) 417, 8 Ann. Cas. 627;McDermott v. People, 5 Parker Cr. R. (N. Y.) 102.

In State v. Lockwood,24 Del. 28, 1 Boyce...