State v. J. Leon Hudon

• Decision Date: 07 October 1930
• Citation: State v. J. Leon Hudon, 151 A. 562, 103 Vt. 17 (Vt. 1930)
• Parties: STATE v. J. LEON HUDON
• Court: Vermont Supreme Court

151 A. 562

103 Vt. 17

STATE v. J. LEON HUDON

Supreme Court of Vermont

October 7, 1930

May Term, 1930.

Criminal Law---"Attempt To Commit Crime"---"Endeavor" To Incite Another To Commit Crime---G. L. 7123---Sufficiency of Information To Charge Violation of Statute---Evidence---Statements as to Crime Made in Presence of Respondent---Harmless Error---Opinion Evidence---Question Involving Ultimate Question for Decision by Jury---Instructions to Jury.

1. Attempt to commit crime consists not only of an intent to commit a particular offense, but such intent must be coupled with some overt act designed to carry out such intent.

2. One who advises, counsels, or solicits another to commit a felony, without more, violates G. L. 7123, even though such crime is not committed or attempted.

3. Information charging that respondent did wilfully maliciously, and felonously endeavor to incite, procure, and hire a specified person to burn latter's barn, with intent to defraud certain insurance company, held sufficient to charge violation of G. L. 7123.

4. In prosecution under G. L. 7123 for endeavoring to incite witness to burn his barn, with intent to defraud insurance company, permitting witness to testify to what another person, since deceased, had said when brought to witness' place by respondent, in respondent's presence, as to his willingness to burn barn for a consideration, if witness were willing, held not error.

5. In such prosecution, permitting witness to testify that before day set for that purpose he had seen sheriff about respondent's plan to burn witness' barn and got some advice from sheriff relating to matter, held harmless standing alone, as it did, even if inadmissible.

6. In such prosecution, exclusion of question asked witness on cross-examination as to whether respondent had in any way incited witness to burn his barn, held proper.

7. In such prosecution, whether what respondent did amounted to an endeavor to incite witness to burn his barn, held question for the jury, and not for witness, to be determined from all evidence in case bearing on that issue.

8. Where information contained three counts, and at close of State's case State elected to stand on third count, and trial thereafter proceeded as though that was only charge in information, and in instructing jury court detailed allegations of third count and thereafter confined his observation to law and facts necessary to sustain conviction thereunder, without any reference to other charges contained in information, failure of court to instruct jury that respondent could be convicted under third count only, held without error, since charge as it stood could have left no doubt in minds of jurors as to precise issue submitted for their consideration.

INFORMATION under G. L. 7123 for endeavoring to incite person to commit a felony. Plea, not guilty. Trial by jury at the November Term, 1929, Lamoille County, Bicknell, J presiding. Verdict of guilty, and judgment thereon. The opinion states the case.

Judgment that there is no error in the proceedings and that the respondent takes nothing by his exceptions. Let execution be done.

W. E. Tracy. F. G. Fleetwood, and H. C. Sylvester, attorneys for the respondent.

Benjamin N. Hulburd, State's attorney, for the State.

Present: POWERS, C. J., SLACK, MOULTON and THOMPSON, JJ., and GRAHAM, Supr. J.

OPINION

SLACK

Section 6853 of the General Laws provides: "A person who wilfully and maliciously burns or causes or procures to be burned his own dwelling house or other building owned in whole or in part by himself, with intent to defraud an insurance company, shall be imprisoned in the state prison not more than ten years or fined not more than one thousand dollars"; section 7126 declares that all offenses which may be punished by death or imprisonment in the state prison shall be deemed felonies; and section 7123 provides that a person who endeavors to incite, procure, or hire another person to commit a felony, though a felony is not actually committed as a result of such inciting, hiring, or procuring, shall be imprisoned in the state prison not more than five years, etc. The respondent stands convicted of a violation of the latter statute by endeavoring to incite, procure, and hire one Ernest Turcotte to burn a certain barn owned by Turcotte with intent to defraud the Granite Mutual Fire Insurance Company.

The respondent contends in the first place that neither the information nor the proof are sufficient to sustain the conviction, because the information does not allege that he owned in whole or in part the barn in question or that it was burned or that there was an attempt to burn it, and because the proof has no tendency to establish such facts. These questions are properly raised in various ways but they are without merit. The respondent manifestly misconceives the nature of the offense with which he is charged, and of which he was convicted, since his whole argument is devoted to what is necessary to constitute an attempt to commit a felony. We agree with him respecting the essential elements of that offense. It is a well-established rule that in order to constitute an attempt to commit a crime, whether statutory or common law, there must be some act done in part execution of the design to commit such crime. In other words, an attempt consists not only of an intent to commit a particular crime, but such intent must be coupled with some overt act designed to carry out such intent. State v. Donovan, 5 Boyce 40, 90 A. 220, and cases cited.

But all this is foreign to the question before us, since the respondent is not charged with an attempt to commit a felony within the meaning of the word attempt as commonly used. Of course an endeavor to incite one to commit a crime is an indirect attempt to accomplish the commission of such crime but to constitute an endeavor within the meaning of G. L. 7123, does not require physical action. One who advises, counsels, or solicits another to commit a felony, without more, violates this statute, even though such crime is not committed, or attempted. It is held in Commonwealth v. Flagg, 135 Mass. 545, that it is an...