State v. Hampton, 732.

• Citation: 186 S.E. 251,210 N.C. 283
• Decision Date: 15 June 1936
• Docket Number: No. 732.,732.
• Court: United States State Supreme Court of North Carolina
• Parties: STATE. v. HAMPTON.

186 S.E. 251

210 N.C. 283

STATE.

v.HAMPTON.

No. 732.

Supreme Court of North Carolina.

June 15, 1936.

Appeal from Superior Court, Rockingham County; Shaw, Emergency Judge.

Tony Hampton was convicted of soliciting another to burn a dwelling house, and he appeals.

No error.

Criminal prosecution tried upon indictment charging the defendant (1) with attempting to burn the dwelling house of one Lottie Wells in violation of C.S. § 4246; and (2) with soliciting Glenn Haymour to burn said dwelling house by proffering him a pistol as a reward for his act, and offering to furnish the matches and oil needed in the burning.

There was evidence tending to show a dispute between the defendant and Lottie Wells over the title to her dwelling house. Failing to adjust the matter amicably, the defendant, on June 28, 1935, solicited Glenn Haymour to set fire to the house by offering him a pistol as a reward for his act, and also offering to furnish matches and oil for said use. Haymour, a boy fifteen years of age, declined the offer and reported the conversation to the officers, who arrested the defendant.

Verdict: "Guilty of soliciting the commission of a felony, as charged in the second count."

Judgment: Twelve months on the roads.

Defendant appeals, assigning errors.

P. W. Glidewell, of Reidsville, Karl Massey, of Spray, and T. C. Bethea, of Reidsville, for appellant.

A. A. F. Seawell, Atty. Gen, and Harry McMullan, Asst. Atty. Gen, for the State.

STACY, Chief Justice.

The defendant, being disgruntled with his neighbor, solicits another to burn her dwelling house. The solicitation is spurned. Is the defendant guilty of a crime?

It is observed the defendant has been acquitted on the charge of attempting to burn the dwelling house in question. C.S. § 4246; State v. Addor, 183 N.C. 687, 110 S.E. 650, 22 A.L.R. 219. It was said in State v. Taylor, 84 N.C. 773, that where there are several counts in a bill, " 'if the jury find the defendant guilty on one count * * * and say nothing in their verdict concerning other counts, it will be equivalent to a verdict of not guilty as to them." This was quoted with approval in State v. Fisher, 162 N.C. 550, 77 S.E. 121, and is very generally held forlaw. See, also, State v. Sorrell, 98 N.C. 738, 4 S.E. 630. The principle should not be confused with the practice, authorized by C.S. § 4640, which permits the conviction of a "less degree of the same crime" when included in a single count. State v. Wall, 205 N.C. 659, 172 S.E. 216; State v. Gregory, 203 N.C. 528, 166 S.E. 387.

The defendant is not charged with conspiracy, which is a completed offense without execution of the unlawful design. State v. Anderson, 208 N.C. 771, 182 S.E. 643. Nor is he charged with "counseling, procuring or commanding" another to commit a felony, nor with being an accessory before the fact, an accomplice, or a principal in the second degree. C.S. § 4175; State v. McKeithan, 203 N.C. 494, 166 S. E. 336.

It is conceded that we have no statute covering the precise question or the particular situation. The inquiry then arises: Is it a substantive common-law offense to solicit another to commit a felony, when the solicitation is of no effect, and the crime solicited is not in fact committed? By the clear weight of authority, the question must be answered in the affirmative. Commonwealth v. Flagg, 135 Mass. 545 (solicitation to burn barn); State v. Schleifer, 99 Conn. 432, 121 A. 80S, 35 A. L.R. 952 (solicitation from...